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HomeMy WebLinkAbout2015 06 22 Consent 308 Mediated Settlement Agreement with WCA Waste Corporation COMMISSION AGENDA Informational Consent X ITEM 308 Public Hearings g Regular June 22, 2015 KS Regular Meeting City Manager Department REQUEST: The City Manager and City Attorney request the City Commission approve a Mediated Settlement Agreement related to City of Winter Springs v. WCA of Florida, Inc. and the School Board of Seminole County which is currently before the Florida Fifth District Court of Appeal. SYNOPSIS: In 2008, the City granted an exclusive solid waste franchise to Waste Pro requiring Waste Pro to collect and dispose of all commercial and residential solid waste within the jurisdictional limits of the City of Winter Springs including from school board property. In 2013, the School Board approved a contract with WCA of Florida to provide for solid waste collection services on school board property including school property within the City of Winter Springs. The City claimed that the contract violated the City's exclusive solid waste franchise granted to Waste Pro and other applicable ordinances. In response to the City's claim,WCA of Florida and the School Board filed suit against the City contesting the application of the City's Waste Pro exclusive solid waste franchise and ordinances to school board property. The trial court ruled in WCA's and School Board's favor and enjoined the City from enforcing its exclusive solid waste franchise and applicable ordinances. The City appealed. Pursuant to Florida Appellate Rules of Procedure, the parties recently attended an all-day mediation attempting to resolve the dispute. The mediation resulted in a proposed Mediated Settlement Agreement. The City Manager and City Attorney recommend that the City Commission consider approving the Settlement Agreement, which is attached to this Agenda Item. CONSIDERATIONS: 1. The Mediated Settlement Agreement is attached to the Agenda Item and is subject to approval by the City Commission and School Board. 2. In summary,the Settlement Agreement provides the following material terms relevant to the Consent 308 PAGE 1 OF 3-June 22,2015 City: a. The parties will jointly request that the appellate court relinquish jurisdiction and direct the lower court to vacate the Final Judgments entered in this case. b. Upon vacation of the Final Judgments, the City will voluntarily dismiss the appeal with prejudice and WCA and the School Board will voluntarily dismiss their respective claims, cross claims and counter claims with prejudice. c. The parties agree that the Final Judgments shall have no precedential value whatsoever with respect to the parties. d. WCA shall file a non-exclusive commercial solid waste franchise application with the City. The School Board will pay the application fee of$1,000 to the City. e. The City will grant WCA, by ordinance, a non-exclusive commercial solid waste franchise to operate within the City of Winter Springs for the sole purpose of providing solid waste removal services to the School Board under the existing School Board Solid Waste Contract. The ordinance will be considered and approved by the City Commission using the City's regular ordinance adoption process. The ordinance shall set forth the City's solid waste non-exclusive commercial franchise terms and conditions,which are generally customary for similar non-exclusive franchises between Florida municipalities and the solid waste removal industry. In addition, the term of the non-exclusive commercial franchise shall run concurrent with the remainder of the sixty (60) month term of the School Board Solid Waste Contract. The non-exclusive franchise will only authorize WCA to provide solid waste service to School Board property; no other commercial properties within the City will be served by WCA. f. The ordinance for said non-exclusive franchise shall require that WCA compensate the City a non-exclusive commercial franchise fee equal to ten percent (10%) of the gross revenue received by WCA from all sources related to WCA's solid waste removal services provided to the School Board property within the jurisdictional limits of the City of Winter Springs. g. WCA agrees to abide by the non-exclusive franchise ordinance adopted by the City Commission. h. Each party bears their own attorney's fees and costs in the case. 3. If the City Commission and the School Board approve the Settlement Agreement, the Settlement will be implemented and the case will be resolved. On the other hand, if the City Commission and School Board do not approve the Settlement Agreement,the parties shall notify the mediator that the Agreement was not approved, and at such time, the mediator will either declare impasse or continue the mediation with consent of all of the parties. FISCAL IMPACT: Once all of the parties approve the Settlement, the City will receive a $1,000 non-exclusive franchise fee application fee, and an annual franchise fee equal to 10% of the gross revenues received by WCA from their current contract with the School Board, once the ordinance becomes effective. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and Consent 308 PAGE 2 OF 3-June 22,2015 the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: The City Manager and City Attorney recommend that the City Commission approve this Mediated Settlement Agreement related to City of Winter Springs v. WCA of Florida, Inc. and the School Board of Seminole County. ATTACHMENTS: 1. Conditional Mediated Settlement Agreement Subject to City Commission and School Board Approval. Consent 308 PAGE 3 OF 3-June 22,2015 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT THE CITY OF WINTER SPRINGS, FLORIDA, a municipal corporation, Appellant, vs. CASE NO.: 5D15-0293 WCA OF FLORIDA, LLC, a Florida limited liability company, and THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, a political subdivision of the State of Florida, Appellees. / CONDITIONAL MEDIATED SETTLEMENT AGREEMENT SUBJECT TO CITY COMMISSION AND SCHOOL BOARD APPROVAL THIS CONFIDENTIAL MEDIATED SETTLEMENT AGREEMENT (hereinafter as the "Agreement") is entered into by and between Appellant, THE CITY OF WINTER SPRINGS, FLORIDA, a municipal corporation (hereinafter "City"), and Appellees, WCA OF FLORIDA, LLC, a Florida limited liability company (hereinafter "WCA"), and THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter "School Board"), subject to and conditioned upon the approval of the City Commission of the City of Winter Springs, Florida, and the governing board of CASE NO.: 5D15-0293 the Seminole County School Board at duly noticed public meetings. The parties hereby agree and stipulate as follows: 1. This Agreement shall not become binding upon the City or the School Board unless and until it is approved by a majority vote of the City Commission of the City of Winter Springs and the governing board of the School Board at duly noticed public meetings, with the sole and limited exception of the following commitment made by the parties: a. On or before June 30, 2015, the City Manager for the City and the Superintendent for the School Board shall respectively recommend to the City's Commission and the School Board that this Agreement be approved by the City's Commission and the School Board. b. If the School Board and/or the City's Commission fail to approve this Agreement at their respective meetings, counsel for the School Board and/or the City, as applicable, shall notify the mediator for the above-styled proceeding and the other parties that the Agreement was not approved. At such time, the mediator will either declare impasse or continue the mediation with consent of all of the parties. c. If the Agreement is approved by both the School Board and the City's Commission, this Agreement shall become legally binding upon all parties, CASE NO.: 5D15-0293 who shall then promptly proceed, in good faith, with their respective performances under this Agreement. 2. The parties acknowledge that this Agreement is given in compromise of disputed claims and any consideration and compromise made hereunder shall not be construed as an admission of liability or wrong-doing by any party, nor shall it be construed as an admission that any other party's disputed legal position in the above-styled proceeding, or in the action below, was or is superior, correct and/or valid. Without admitting any wrongdoing or liability, the parties to this stipulation desire to amicably resolve all disputes between them, including, without limitation, all appeals, claims, crossclaims and counterclaims filed in the above-styled proceeding and in the action below. 3. Within ten (10) days from the date this Agreement becomes legally binding, if at all, the parties shall file a joint motion in the above-styled proceeding, advising the appellate court that a settlement agreement has been reached and requesting that the appellate court relinquish jurisdiction and direct the lower court to vacate the Final Judgment In Favor of Plaintiff WCA of Florida, LLC, entered in the action below on December 23, 2014, and the Final Judgment in Favor of the Defendant/Cross-Defendant The School Board of Seminole County, Florida, entered in the action below on December 23, 2014 (hereinafter collectively as the "Final Judgments"). Within ten (10) days after the lower court enters an order CASE NO.: 5D15-0293 vacating the Final Judgments, (a) the City will file a voluntary notice of dismissal with prejudice of the above-styled proceeding, and (b) WCA and the School Board will file voluntary dismissals with prejudice of their respective claims, crossclaims and counterclaims. 4. The parties agree that the Final Judgments, the vacation of the Final Judgments and the dismissals of the above-styled proceeding and the action below shall have no precedential value whatsoever with respect to the parties. 5. At such time the lower court vacates the Final Judgments, the following shall occur: a. Article II., Paragraph 18(B), General Purchasing Terms and Conditions under the current contract for solid waste removal service #1314008B between WCA and the School Board, effective November 1, 2013 ("School Board Solid Waste Contract"), shall be deemed automatically amended to provide that: "If the School Board choses to terminate the contract for convenience, the School Board shall provide the Contractor with at least 90 days prior written notice before the effective date of termination." b. WCA shall file a non-exclusive solid waste commercial franchise application with the City no later than seven (7) days after the Final Judgments are vacated. Said application shall be accompanied with an application fee in the amount of $1,000 made payable to the City by check. CASE NO.: 5D15-0293 The School Board agrees to pay the application fee to the City on behalf of WCA. Upon receipt of a completed application and said fee, the City will grant WCA, by ordinance, a non-exclusive commercial solid waste franchise to operate within the City of Winter Springs for the sole purpose of providing solid waste removal services to the School Board under the existing School Board Solid Waste Contract. The ordinance will be considered and approved by the City Commission using the City's regular ordinance adoption process. The ordinance shall set forth the City's solid waste non-exclusive commercial franchise terms and conditions, which are generally customary for similar non-exclusive franchises between Florida municipalities and the solid waste removal industry. In addition, the term of the non-exclusive commercial franchise shall run concurrent with the remainder of the sixty (60) month term of the School Board Solid Waste Contract. c. Further, the ordinance for said non-exclusive franchise shall require that WCA compensate the City a non-exclusive commercial franchise fee equal to ten percent (10%) of the gross revenue received by WCA from all sources related to WCA's solid waste removal services provided to the School Board within the jurisdictional limits of the City of Winter Springs. Upon adoption of said ordinance by the City's CASE NO.: 5D15-0293 Commission, WCA agrees to abide by the terms and conditions set forth in the ordinance. 6. The parties acknowledge that they have had the opportunity to obtain counsel to represent them prior to their execution of this Agreement and they have not relied upon any representations or advice of any other party or opposing counsel before executing this Agreement. The parties further acknowledge that they have voluntarily agreed to the terms of this Agreement and have not been coerced under any circumstances by any opposing party, counsel or the mediator. 7. The parties and their counsel further acknowledge that: (a) the mediator is and has remained a neutral, impartial facilitator for the parties throughout the mediation; (b) although the mediator is a licensed attorney in Florida and may have used his experience to make observations or play "devil's advocate" during the course of the mediation, nothing the mediator did or stated during the mediation was relied upon by the parties or their counsel as legal services, legal advice or a legal opinion of the mediator; (c) the mediator did not make any decisions for the parties regarding whether to settle their dispute and/or on what terms to settle; (d) the mediator did not render any legal services or legal advice in connection with the drafting of this Agreement, except as a scrivener; and (e) the parties have solely relied upon the advice of their counsel for the drafting and execution of this Agreement. CASE NO.: 5D15-0293 8. This Agreement is the entire agreement between the parties with respect to settlement of the subject matter covered herein and any modification or change hereof shall be in writing and signed by all parties and their attorneys. Except as otherwise provided herein, each party to this Agreement shall bear their own attorney's fees and costs. 9. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become effective as stated herein when counterparts have been signed by each of the parties and delivered to the other parties; it being understood that all parties need not sign the same counterparts. DATED this day of May, 2015. THE CITY OF WINTER SPRINGS FLORIDA By: Kevin L. Smith, City Manager Date: 5/28/2015 Anthony A. Garganese , Esq. Approved by the City Commission on Florida Bar No.: 988294 this day of , 2015. Counsel for The City of Winter Springs Charles Lacey, Mayor CASE NO.: 5D15-0293 WCA OF FLORIDA, LLC By: Print Name and Capacity Frank A. Hamner, Esq. Florida Bar No.: 59153 Date: Counsel for WCA of Florida, LLC THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA By: Dr. Walt Griffin, Superintendent Robert E. Bonner, Esq. Florida Bar No.: 327875 Counsel for The School Board of Seminole County, Florida Date: CASE NO.: 5D15-0293 Approved by the School Board on this day of , 2015 Tina Calderone, Chairman