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AG 12-133��ruRlv To: .��CZr�E" t:'lL. �..� �'� 1C(.-5�', ExT: .;Z % �' ( CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/D[V: PUBLIC WORKS /���,�( �� Z. ORIGINATING STAFF PERSON: �����{�' � �-f���C�S���� EXT: 2�C' I 3. DATE REQ. BY: TYPE OF DOCUMENT (CHECK ONE�: ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#): ❑ INTERLOCAL � o�rxEx c�.,V�}����'J')��t,t- 5. PROJECT 6. NAME OF ADDRESS: � ,,,�.,t . SIGNATURE NAME: TELEPHONE:}�S� �/�i'� ��� Fa,�c: TITLE: V� 7. EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERT[FICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS CFW LICENSE # BL, EXP. 12/31/ UBI # , E�• � � S. TERM: COMMENCEMENT DATE: I D��`� L�I �� COMI'LETION DATE: TOTAL COMPENSATION: $ (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES� REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED: ❑ YES O NO IF YES, $ PAID BY: O CONTRACTOR ❑ CITY ❑ PURCHASING: PLEASE CHARGE TO: LO. DOCUMENT / CONTRACT RE W PROJECT MANAGE ❑ IVISION MAN ER ❑ D TY D CTOR ❑ DixE p RI GEMENT (IF APPLICABLE) AW DEPT 11. COUNCILAPPROVAL �IF APPLICABLE� INITIAL / DATE REVIEWED COMMITTEE APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS INITIAL / DATE SIGNED ❑ LAW DEPT ❑ SIGNATORY (MAYOR OR DIRECTOR) ❑ CITY CLERK �ASSIGtvED AG # `�SIGNED COPY RETURNED ❑ RETURN ONE ORIGINAL COMMENTS: �"� ,� � �._�___._��� �.�,....,�..... AG# DATE SENT: jd" 'r�' ' � ,. INITIAL / DATE APPROVED COUNCIL APPROVAL DATE: DATE REC'D: 11/ SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ("Agreement") is made and entered into between the CITY OF FEDERAL WAY, a municipal corporation of the State of Washington, and WASTE MANAGEMENT OF WASHINGTON, INC. ("WMW"). The parties shall be collectively referred to herein as the "Parties" and individually as a"Party", unless specifically identified otherwise. This Agreement shall be effective upon the date that all Parties have executed this Agreement (the "Effective Date"), as evidenced by the signatures below. RECITALS WHEREAS the Parties entered into that certain Amended and Restated Comprehensive Garbage, Recyclables and Compostables Collection Agreement Between the City of Federal Way and Waste Management of Washington, Inc., dated September 7, 2011 pursuant to which WMW provides certain garbage, recyclables, and yard waste collection services within the City (the "Contract"); WHEREAS during the period beginning on or about July 25, 2012 and continuing until approximately August 2, 2012 WMW experienced a labor strike which limited WMW's ability to collect garbage, recyclables, and yard waste materials from residential and commercial customers within the City, and then during the subsequent period continuing until approximately August 11, 2012, WMW expended certain additional efforts to recover from the labor strike to return service to normal levels (collectively, this period of July 25, 2012 through August 11, 2012 which included both the labor strike and the recovery period will hereafter be referred to as the "Labor Strike"); and WHEREAS the City has requested certain performance fees and other amounts related to the temporary disruption in service that occurred in connection with the Labor Strike, and the Parties have negotiated a resolution to these issues, upon the terms set forth herein, in order to avoid further dispute under the Contract and in the interest of preserving the strong business relationship between the Parties. TERMS AND CONDITIONS NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties agree, represent, and warrant as follows: 1. STATEMENT OF PURPOSE. This Agreement is for the purpose of resolving, compromising, and settling any actual or potential issue, claim, or dispute arising in connection with the temporary disruption in service that occurred as a result of the Labor Strike. The Parties have agreed to settle and compromise as set forth herein, and are satisfied that the terms and conditions of this Agreement are fair, adequate, and reasonable. 2. DEFINITIONS. Except as expressly defined herein, capitalized terms shall have the same meaning as in the Contract. 3. SETTLEMENT AMOUNT AND TERMS. 3.1. WMW has agreed to a total estimated settlement amount of 20$ 9,790, which is based on a credit of $10 per Single-Family Residence and $50 per Multi-Family Complex or Commercial Customer, as described more fully below (the "Settlement Amount"): Page 1 of 6 Settlement Agreement - Federal Way $ per Accounts Account Total Single-Family Residences 16,984 $10.00 $169,840 Multi-Family Complex and Commercial Customers 799 $50.00 $39,950 Total $209,790 3.2. The $10 per Single-Family Residence rate referenced above reflects a total for the three different lines of service provided by WMW — i.e., garbage, recycling, and yard waste. For each individual line of service, the per-account amount would be approximately $3.33. The $50 per Multi-Family Complex or Commercial Customer rate referenced above reflects a total amount for each customer account. 3.3. The Parties agree that the number of Single-Family Residence, Multi-Family Complex, and Commercial Customer accounts referenced above are based on the best information currently available. The Parties acknowledge that the account totals are a reasonable estimate and may not be absolutely accurate; however, WMW shall be deemed to satisfy the Settlement Amount by issuing credits based on the actual number of customers, as described more fully in Section 4 below. 3.4. T'he Settlement Amount is intended to be a comprehensive figure, and the City agrees that it will not independently penalize WMW for any missed pickups or complaints related to service interruptions that occurred in connection with the Labor Strike, nor will the City administer any other deductions or fees related to unperformed services during this period. 4. PAYMENT; CUSTOMER CREDITS. 4.1. WMW's payment of the Settlement Amount shall be fully satisfied by WMW issuing credits to each Single-Family Residence, Multi-Family Complex, and Commercial Customer in the following amounts and in accordance with this section: Credit per Account T e Account Sin e-Famil Residences $10.00 Multi-Family Com lexes $50.00 Commercial Customers $50.00 4.2. WMW shall include an inconvenience credit in the above amounts for each active Single-Family Residence, Multi-Family Complex, and Commercial Customer account serviced by WMW within the City of Federal Way. For Single-Family Residences, which are billed quarterly, such credits shall be included on the quarterly invoices issued on or about November 14, 2012, December 14, 2012, and Januaryl4, 2013, or such later time as directed by the City. For Multi-Family Complexes and Commercial Customers, which are billed monthly, such credits shall be included on invoices issued on or about November 20, 2012, or at such later time as directed by the City. The Parties agree that the credits provided for in this Section shall be provided only to those accounts that are active at the time the invoices are issued. 4.3. The Parties acknowledge that the intent of this Agreement is to provide credits to customers receiving regular (i.e., weekly or every-other-week) collection services under the Page 2 of 6 Settlement Agreement - Federal Way Contract. WMW's obligation to issue credits shall apply only to those accounts receiving regular collection services and shall not apply to other accounts, including but not limited to those accounts receiving on-call or temporary Drop-Box Container Garbage Collection services under Section 2.2.9 of the Contract, accounts for on-call or temporary customers under Section 2.2.10 of the Contract, any other on-call or temporary services, City accounts with free service under Section 2.2.11 or Section 2.2.12 of the Contract, or other services related to solid waste collection under Section 2.2.14 of the Contract. 4.4. As stated in Section 3.2 above, the Parties acknowledge that the actual number of Single-Family Residence, Multi-Family Complex, and Commercial Customer accounts is an estimate for purposes of this Agreement and may not be absolutely accurate. WMW is responsible for issuing the account credits and shall bear the risk that the actual number of accounts differs from the estimate provided above, which includes the risk that the amount of account credits WMW actually issues may be higher or lower than the Settlement Amount. 4.5. Nothing in this Agreement grants any person, including any Single-Family Residence, Multi-Family Complex, and Commercial Customer, any right, interest, or claim to the Settlement Amount. 4.6. The City will cooperate with WMW in providing information reasonably requested by WMW to assist WMW in providing credits to the customers. 5. RELEASES. 5.1. Each Party hereby agrees that the Settlement Amount fully resolves all claims that the City has made or could make for itself and/or on behalf of the City's residential and commercial customers relating to the disruption of solid waste, recyclables, and yard waste collection services during or in connection with the Labor Strike, including but not limited to all claims for damages, inconvenience, penalties, fines, performance fees, interest, and costs, contractual or extra-contractual, whether known or unknown. The City, on behalf of itself and its residential and commercial customers, will fully and forever waive and release WMW and its officers, directors, members, shareholders, partners, employees, and attorneys (the "WMW Releasees") from, and agrees not to invoke contractual remedies, sue or initiate arbitration or other proceedings concerning, any and all claims, contentions, debts, liabilities, demands, promises, agreements, costs, expenses (including but not limited to attorneys' fees), damages, actions, or causes of action, of whatever kind or nature, whether now known or unknown, suspected or unsuspected, and whether based on contract, tort, statutory or other legal or equitable theory of recovery that arise from or are based in any manner upon any act or omission arising from or in connection with the Labor Strike. 5.2. WMW (including any corporate parents, affiliates and subsidiaries) does hereby fully and forever waive and release the City, on behalf of itself and its residential and commercial customers (the "City Releasees") from, and agrees not to invoke contractual remedies, sue or initiate arbitration proceedings concerning, any and all claims, contentions, debts, liabilities, demands, promises, agreements, costs, expenses (including but not limited to attorneys' fees), damages, actions, or causes of action, of whatever kind or nature, whether now known or unknown, suspected or unsuspected, and whether based on contract, tort, statutory or other legal or equitable theory of recovery that arise from or are based in any manner upon any act or omission arising from or in connection with the Labor Strike. Page 3 of 6 Settlement Agreement - Federal Way 5.3. The Parties' respective rights to enforce this Agreement and to seek relief for its breach are excluded from and not within the scope of the releases stated in Sections 5.1 and 5.2 above. 6. NO ADMISSION OF LIABILITY. This Agreement does not constitute and shall not be construed as an admission of liability. Neither any payrnent, credit or any other consideration provided hereunder, nor the grant of any release shall be considered an admission by or against any Party, and no past or present wrongdoing on the part of the Parties shall be implied by such payment, other consideration, release, or entry into this Agreement. WMW and the City acknowledge that the Settlement Amount represents a compromise intended to avoid further dispute over the issues related to the Labor Strike. Without limiting the generality of the foregoing, the Parties agree that nothing in this Agreement shall be considered an admission by or against any Party as to the enforceability of the "Performance Fees" under the Contract or a waiver of any right to contest the validity, calculation, assessment, or amount of any performance fee, penalty, or damages assessment in the future. 7. SETTLEMENT AGREEMENTS WITH OTHER CITIES. If WMW settles claims concerning the Labor Strike by entering into a settlement agreement with another city that requires payments or customer credits to residential or commercial customers that are greater (per account) than the amounts set forth in Sections 3 and 4, WMW shall issue additional credits to its residential and/or commercial customers within the City in amounts reflecting the difference between the per account credits in Section 4.1 and the per account amounts agreed to in the other settlement agreement. This Section shall not apply to any final judgment or decision issued or settlement agreements entered into between WMW and another city after commencement of litigation (excluding administrative appeals to the city) or binding arbitration. 8. MISCELLANEOUS PROVISIONS. 8.1. Each Party represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations or causes of action referred to in and released pursuant to this Agreement; that each Party has the sole right and exclusive authority to execute this Agreement; and that each Party has not sold, assigned, transferred, conveyed or otherwise disposed of, by operation of law or otherwise, any of the claims, rights, demands, obligations or causes of action referred to in this Agreement. 8.2. This Agreement is a valid and binding agreement, enforceable in accordance with its terms against the Parties, and it sha11 be binding on and inure to the benefit of the Parties and their respective legal representatives, successors and/or assigns. This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party. No ambiguity or omission in this Agreement shall be construed or resolved against any Party on the ground that this Agreement or any of its provisions was drafted or proposed by that Party. 8.3. This Agreement is made solely and specifically among and for the benefit of the Parties hereto, and their respective successors and assigns, and no other person will have any rights, interest, or claim hereunder or be entitled to any benefits under or on account of this Agreement, whether as a third party beneficiary or otherwise. 8.4. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of the Agreement. 8.5. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to principles of conflicts of laws, as applicable to Page 4 of 6 Settlement Agreement - Federal Way agreements made and to be performed entirely within Washington. The exclusive venue and forum for any dispute regarding this Agreement shall be the state or federal court located in King County, Washington. The prevailing party in any action arising from or relating to this Agreement, including but not limited to any action to enforce this Agreement, shall be entitled to reasonable attorneys' fees and costs. 8.6. This Agreement will be effective as of the Effective Date. This Agreement may be executed in counterparts, including facsimile and email/PDF, each of which when so executed and delivered shall be deemed an original, and such counterparts taken together shall constitute one instrument. 8.7. In entering into this Agreement, neither Party has made any representations or warranties, and neither Party has relied upon any representations or warranties, other than those representations and warranties expressly stated in this Agreement. 8.8. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of this Agreement that can be given effect without the invalid provision or application and, to this end, the provisions of this Agreement are declaxed to be severable. 8.9. This Agreement contains the sole and entire agreement between the Parties with respect to the matters set forth herein, supersedes any and all prior or other agreements with respect to the matters set forth herein (including but not limited to the Contract), and may not be changed, amended, modified, terminated, waived or discharged except in a subsequent written agreement by the Parties hereto. Each Party represents and acknowledges that it has read this Agreement, has had opportunity to consult with its legal counsel regarding this Agreement, is satisfied that the terms and conditions are fair, adequate and reasonable, and fully understands and agrees to its terms. * * * IN WITNESS WHEREOF, the Parties enter into this Agreement. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the Party on whose behalf it is indicated that the person is signing. WASTE P WASHING N C. By: Name: Robert C. Sherman Title: Vice President Date: /�o -3-I 2 OF THE CITY OF FEDERAL WAY By: � Name: Skip Pries Title: Mayor Date: �o• �'Z°'� ATTEST: Carol McNeilly, C C City Clerk Dated: �7 Page 5 of 6 Settlement Agreement - Federal Way K:\publicworks\waste management\10-2-12 settlement agreement APPROVED AS TO FORM: � atricia A. Richardson City Attorney Dated: �D `�� /Z Page 6 of 6 Settlement Agreement - Federal Way