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Home My WebLink AboutContract 55188 CSC No.55188 STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTIES OF TARRANT,DENTON § PARKER AND WISE § A SETTLEMENT AGREEMENT WITH WASTE MANAGEMENT OF TEXAS, INC. FOR CLAIMS ASSOCIATED WITH THE COST ADJUSTMENT TO THE EXTENSION AND RESTATEMENT OF THE CONTRACT FOR COLLECTION OF RESIDENTIAL GARBAGE,REFUSE AND BULKY WASTE,RECYCLABLES CERTAIN COMMERCIAL SOLID WASTE,YARD WASTE, C&D AND LARGE BRUSH (CITY SECRETARY CONTRACT NO. 28358-E1,AS AMENDED) This Settlement Agreement by and between THE CITY OF FORT WORTH, TEXAS, a home rule municipal corporation in Tarrant, Denton, Parker and Wise Counties, Texas, acting herein by and through its Assistant City Manager, Valerie Washington ("City"), and WASTE MANAGEMENT OF TEXAS, INC, a Texas corporation duly authorized to do business in the State of Texas, acting by and through Donald J. Smith, its duly authorized President ("Contractor") is entered into to resolve a dispute regarding the date for the Compressed Natural Gas (CNG) fuel index to be applied to calculate the annual adjustment and to determine the appropriate CNG fuel index to be applied pursuant to the Extension and Restatement of the Contract for Collection of Residential Garbage, Refuse and Bulky Waste, Recyclables, Certain Commercial Solid Waste, Yard Waste, C&D and Large Brush(City Secretary Contract No. 28358-E1, as amended), ("Contract"). WITNESSETH: WHEREAS, the City and Contractor entered into the Extension and Restatement of the Contract for Collection of Residential Garbage, Refuse and Bulky Waste, Recyclables, Certain Commercial Solid Waste, Yard Waste, C&D and Large Brush (City Secretary Contract No. 28358- E1), (Contract) dated April 24, 2013, and later amended; and WHEREAS, Section 6 of the Contract provides for a cost adjustment to the rates for Contractor's services annually in each succeeding year effective on October 1, the anniversary date of each contract year, by the percentage changes in the indexes chosen by the parties using the cost adjustment method as identified in Attachment B to the Contract; and WHEREAS, in Attachment B, the parties chose to use Diesel No.2 as the appropriate index for the fuel portion of the cost adjustment until April 1, 2016 when the parties would then begin to SETTLEMENT AGREEMENT OFFICIAL RECORD EXECUTION COPY CITY SECRETARY FT. WORTH, TX apply a CNG index, the day after the original date the Contractor was to convert its fleet to CNG as described in Section 10.3 and 10.4; and WHEREAS, the parties later extended the deadline for Contractor to make its entire fleet conversion to CNG and construct its new maintenance facility to June 9, 2017 by written amendment (City Secretary Contract No. 28358-A2E1) to the Contract; and WHEREAS, for various reasons, discussed and acknowledged by Contractor and the City, the conversion of Contractor's entire fleet to CNG did not occur until July of 2018; and WHEREAS, the parties have been in dispute on the 1) application date for the CNG fuel index to first be applied to determine the fuel portion of the annual cost adjustment method; and 2) the appropriate CNG fuel index to be applied(collectively, "Dispute"); and WHEREAS, the parties now wish to resolve these issues in good faith and have therefore agreed to the terms and conditions below. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the City and Contractor agree as follows: I. Terms and Conditions of Settlement A. Contractor shall compensate the City in the amount of $359,983.00 by issuing a service credit to the City for Fiscal Year 2020 (10/1/2019 to 9/30/2020) in accord with section II below. B. Contractor and the City agree to use the United States Energy Information Administration (EIA) "Natural Gas Citygate Price in Texas" index that is currently found at https://www.eia.gov/dnav/ng/hist/n305Otx3m.htmbeginning with (i) the Fiscal Year 2021 cost adjustment (i.e., adjustment effective 10/1/2020) that will be applied to the current per home monthly rate of $12.72 and (ii) for the remaining annual cost adjustments in the current Contract term that ends on March 31, 2023. C. In addition to the Settlement Agreement, the parties agree to enter into an amendment to the Contract to identify the above-referenced EIA Natural Gas Citygate Price in Texas index as the mutually agreed upon index to determine the fuel portion index value change to use in the annual cost adjustment method, which amendment shall be executed incident to execution and delivery of this Agreement. SETTLEMENT AGREEMENT EXECUTION COPY Page 2 II. Settlement of Claims A. Both parties agree, that upon execution of this Settlement Agreement, no other claims related to the Cost Adjustment payments for Fiscal Years 2018, 2019 and 2020 shall be made provided Contractor issues the complete credit in the amount of$359,983.00 to the City as described in Section I.A, within fifteen days of execution of this Settlement Agreement, which credit shall then be reflected on the Contractor's next invoice issued to the City under the Contract. The City shall have all rights and remedies as described in the Contract if the Contractor fails to timely issue this credit payment. B. Once Contractor timely issues the $359,983.00 payment in the form of a credit to the City, this shall resolve, fully and finally, any and all claims and causes of action that the City or Contractor, their officers, affiliates, employees, elected officials, successors and assigns, currently have or could have against one another regarding the Dispute. The Contractor and the City further hereby RELEASE, ACQUIT, AND FOREVER DISCHARGE one another, their officers, affiliates, employees, elected officials, successors and assigns from any and all claims, actions, causes of action, demands, damages, rights or compensation whatsoever regarding the Dispute. C. It is further understood and agreed that this release and settlement is the compromise of disputed claims, that the promises and agreements made herein are not to be construed as an admission of liability by either party, and are intended merely to avoid litigation and to buy peace between the parties. III. Miscellaneous. Nothing contained herein shall be deemed to amend or modify the Contract, except as expressly set forth herein. Any defined term used herein,but not defined herein, shall have that meaning set forth in the Contract. SIGNATURE PAGE TO FOLLOW SETTLEMENT AGREEMENT EXECUTION COPY Page 3 IN WITNESS WHEREOF, this Settlement Agreement has been executed and is effective on the date signed by the City Secretary. CITY OF FORT WORTH WASTE MANAGEMENT OF TEXAS, INC. Valerie Wal�cisrgt�sr �a.�/�� sMIZe ..aw,.smrtM1x.a .m:wcsn Valerie Washington Donald J. Smith Assistant City Manager President RECOMMENDED BY: WITNESS: ,eoberrsrouse ,Pir�'rM<rellrer Robert Smouse By:Ruth Muelker Assistant Director of Code Compliance Its: Sr.Legal Counsel Solid Waste dpa FOR 0 ��0 01� ATTEST: F°°°°°°° °°�yo��o 0.0 o o ff=o V ° ° Mary Kayser ��'�°°°°°°°°°°°°°), City Secretary Date Signed:Jan 21,2021 APPROVED AS TO FORM AND LEGALITY: CM1IUH R bpez-N¢sm.tls Ilan a; Christa R.Lopez-Reynolds Senior Assistant City Attorney CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all per performance and reporting requirements. Cl ras�aw4ef Christian Harper(Jan 21,2 2108:28 CST) Christian Harper Code Contract Services Administrator OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX SETTLEMENT AGREEMENT EXECUTION COPY Page 4