Agenda 06/14/2016 Item #16K 3 6/14/2016 16.K.3.
EXECUTIVE SUMMARY
Recommendation to approve a pre-suit mediated settlement agreement and authorize the
Chair to execute a Settlement Agreement with Affordable Landscaping Service & Design,
LLC. and Albert Benarroch.
OBJECTIVE: For the Board of County Commissioners to approve the pre-suit mediated
settlement agreement and authorize the Chair to execute a Settlement Agreement with
Affordable Landscaping Service & Design, LLC and Albert Benarroch (collectively
"Affordable").
CONSIDERATIONS: Collier County and Affordable are engaged in two disputes.
The first dispute pertains to approximately 6,126 bags of County owned mulch. Staff previously
asserted that the mulch was unlawfully retained, and claimed damages in the sum of$29,744.52
(comprised of$14,773 in costs of the mulch and $14,971.52 in County costs in recovering the
mulch). Affordable contends that it was simply storing the mulch for later use in its work with
the County, and that the $14,971 in recovery costs was needless. Upon inspection, staff
determined that the mulch had deteriorated beyond use and disposed of it.
The second dispute involves the landscaping work performed within the medians at the Radio
Road MSTU. The County asserts that Affordable materially breached its performance
obligations under the contract leading to the failure of a large portion of the landscaping within
the Radio Road MSTU median areas. The removal and replacement cost incurred to remediate
the landscaping was approximately $80,854.19. Affordable asserts that installation defects by
others, irrigation issues outside its control, and a flawed and defective landscaping plan resulted
in the loss of the landscaping, that it properly performed under the contract, and had the County
continued with the landscaping after the expiration of its contract, the damages, if any, would
have been nominal (there was an approximate one month lag in between the date Affordable's
contract expired and the date the County was able to get another landscaper there).
The County is withholding approved payments of $72,723.77 to Affordable for other work
performed under various contracts with the County. Affordable asserts it is actually owed
$92,454.85 by the County for work performed.
Pursuant to the terms under the Dispute Resolution section of the standard County contract, the
County and Affordable Landscaping attended pre-suit mediation on June 1, 2016. A settlement
was reached, pending Board approval, in which both parties walk away without owing the other
anything. There are no other open agreements between the parties.
The County Attorney's analysis is as follows:
The best case scenario after a trial for the County is that Affordable owes the County $80,854.19
(for the costs of replacing the landscaping)plus $29,744.52 (costs of the mulch plus its recovery)
for a total of$110,598.71, less the $72,723.77 in withheld payments owed Affordable, for a total
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of $37,874.94. Minimum pre-trial and trial costs would be approximately $15,000, for a total
recovery of$22,874.94. This does not include any staff time, as we would handle the litigation
in-house.
The worse case scenario is that the jury awards Affordable $92,454.85 for work performed, less
$14,773 for the cost of the mulch, for a total of$77,681.85. Including minimum $15,000 costs
of pre-trial and trial,this would result in a$92,681.85 cost for the County.
Given the range of awards, it is the County Attorney's recommendation that no further action be
taken in this matter, that the County make no further payments to Affordable and retain the
$72,723.77 in withheld payments. It is the County Attorney's further recommendation that the
County does not award any further contracts to Affordable unless circumstances with Affordable
materially change.
FISCAL IMPACT: None.
RECOMMENDATION: For the Board of County Commissioners to approve the pre-suit
mediated settlement agreement and authorize the Chair to execute a Settlement Agreement, in
the County's dispute with Affordable Landscaping Service & Design, LLC. and Albert
Benarroch.
Prepared By: Jeffrey A. Klatzkow, County Attorney
Attachment: Settlement Agreement
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.3.
Item Summary: Recommendation to approve a pre-suit mediated settlement agreement
and authorize the Chair to execute a Settlement Agreement with Affordable Landscaping
Service & Design, LLC. and Albert Benarroch.
Meeting Date: 6/14/2016
Prepared By
Name:NeetVirginia
Title: Legal Assistant/Paralegal, CAO Office Administration
6/7/2016 3:21:04 PM
Submitted by
Title: Legal Assistant/Paralegal, CAO Office Administration
Name:NeetVirginia
6/7/2016 3:21:05 PM
Approved By
Name: ArnoldMichelle
Title: Division Director-Pub Tran&Nbrhd Enh,Public Transit&Neighborhood Enhancemt
Date: 6/7/2016 4:10:12 PM
Name: GossardTravis
Title: Division Director-Road Maintenance,Road Maintenance
Date: 6/7/2016 4:39:10 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/8/2016 8:56:43 AM
Name: IsacksonMark
Title: Division Director-Corp Fin&Mgmt Svc, Office of Management&Budget
Date: 6/8/2016 9:17:10 AM
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6/14/2016 16.K.3.
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/8/2016 9:39:50 AM
Name: OchsLeo
Title: County Manager,County Managers Office
Date: 6/8/2016 11:16:36 AM
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6/14/2016 16.K.3.
PRE-SUIT MEDIATED SETTLEMENT AGREEMENT
This PRE-SUIT MEDIA I ED SETTLEMENT AGREEMENT (hereafter referred to as
"Agreement") is made and entered into this 14th day of June, 2016, by and between Affordable
Landscaping Service & Design, LLC and Albert Benarroch, an individual (collectively referred
to as Affordable) and Collier County,Florida("Collier County").
Recitals:
WHEREAS, Collier County and Affordable are engaged in two disputes. The first
dispute pertains to approximately 6,126 bags of County-owned mulch. Staff previously asserted
that the mulch was unlawfully retained, and claimed damages in the sum of $29,744.52
(comprised of$14,773.00 in costs of the mulch and$14,971.52 in County costs in recovering the
mulch). Affordable contends that it was simply storing the mulch for later use in its work with
the County, and that the $14,971.52 in recovery costs was needless. Upon inspection, staff
determined that the mulch had deteriorated beyond use and disposed of it;and
WHEREAS, the second dispute involves the landscaping work performed within the
medians at the Radio Road MSTU. The County asserts that Affordable materially breached its
performance obligations under the contract leading to the failure of a large portion of the
landscaping within the Radio Road MSTU median areas. The removal and replacement cost
incurred to remediate the landscaping was approximately $80,854.19. Affordable asserts that
installation defects by others, irrigation issues outside its control, and a flawed and defective
landscaping plan resulted in the loss of the landscaping, that it properly performed under the
contract, and had the County continued with the landscaping after the expiration of its contract,
the damages, if any, would have been nominal (there was an approximate one month lag in
between the date Affordable's contract expired and the date the County was able to get another
landscaper);and
WHEREAS, the County is withholding approved payments of$72,723.77 to Affordable
for other work performed under various contracts with the County. Affordable asserts it is
actually owed$92,454.85 by the County for work performed;and
WHEREAS, the parties wish to walk away from one another without any further right,
duty or obligation between them.
NOW, THEREFORE, in consideration of the foregoing premises and the following
mutual promises,the parties agree as follows:
1. All Monies. Pursuant to this Agreement, all monies owed to Affordable by Collier
County under the contracts (currently believed by Collier County to total $72,723.77 but
believed by Affordable to be $92,454.85) and any other monies owed to Affordable by
Collier County under the contracts, or for any other reason, whether currently known or
unknown, are forfeited by Affordable. Affordable hereby relinquishes any and all claims
to said monies and is owed nothing further by the County.
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2. Releases. Except for the obligations of this Agreement, which are not hereby released
and which shall survive the execution hereof, Affordable, Albert Benarroch, an
individual, and Collier County, for themselves and for their respective successors and
assigns, hereby remise, release, acquit, waive, satisfy and forever discharge one another
and one another's respective officers, directors, shareholders, managers, members,
employees (in the case of Affordable, including, but not limited to, Albert Benarroch),
agents, servants, representatives and insurers, and the respective personal representatives,
heirs, successors and assigns of all of them, of and from all, and all manner of action and
actions, cause and causes of action, suits, debts, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
guarantees, warranties (whether express or implied, and whether based on statute,
common law or otherwise), third-party claims, bad faith claims, additional insured
claims, claims for false arrest and/or malicious prosecution, subrogation claims,
variances, trespasses, damages,judgments, executions, claims and demands whatsoever,
which either has or may have against the other, whether arising in tort, by contract, by
virtue of statute, or otherwise, and whether in law or in equity, regardless of whether the
same are known or unknown, suspected or unsuspected, patent or latent, or have yet
accrued or not accrued (all of which are referred to herein collectively as "Claims"),
provided the same in any way arise out of or relate to the Contracts and/or the Mulch
Issues.
3. Entire Agreement. This Agreement sets forth the entire understanding of the parties and
no verbal or written warranties or representations have been made or have been relied
upon which do not appear in writing within this Agreement. Any reliance on verbal or
other representations which do not appear within this Agreement shall be deemed
unjustifiable reliance. Each party hereto is represented by that party's own counsel (or
has had the opportunity to confer with counsel of their own choosing) and has had the
benefit of(or the opportunity to have the benefit of) such counsel's advice in reviewing,
commenting upon,and modifying this Agreement.
4. Modification of Agreement. This Agreement may not be amended or modified except
by written instrument signed by all of the parties hereto, and the parties agree that this
provision may not be waived except in writing.
5. Waiver. The rights of the parties under this Agreement are to be considered cumulative,
and the failure on the part of any party to exercise or enforce properly or promptly any
rights arising out of this Agreement shall not operate to forfeit or serve as a waiver of any
of those or other rights. The waiver by one party of the performance of any covenant or
condition herein shall not invalidate this Agreement, nor shall it be considered to be a
waiver by such party of any other covenant or condition herein. The waiver by any party
of the time for performing any act shall not constitute a waiver of the time for performing
any other act or an identical act required to be performed at a later time.
6. Mediator as Scrivener; Interpretation. The mediator has provided the initial draft of
this Agreement to the parties and their counsel as a draft for their consideration. The
mediator has done so as an accommodation to assist the parties in memorializing their
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agreement and has not done so in order to render any legal advice. The parties and their
counsel have been free to add to, delete from, and to otherwise change the initial draft as
they have seen fit. Any changes made to the initial draft of this Agreement have been at
the request of one or more of the parties to this Agreement (or their counsel) and
represent the memorialization of their intent. The parties hereto acknowledge and
agree that the mediator has not provided them with any legal advice (either during
the course of the mediation or in connection with the negotiation and preparation of
this Agreement), and that they have obtained (or have had the opportunity to
obtain) their own independent legal advice prior to executing this Agreement. The
parties hereto agree that in the event of any dispute as to the precise meaning of any term
or provision contained herein,the principle of construction and interpretation that written
documents are to be construed against the party preparing the same shall not be
applicable. Wherever used herein, the singular shall include the plural, the plural shall
include the singular, and pronouns shall be read as masculine, feminine or neuter, all as
the context requires.
7. Cooperation. The parties hereto agree to cooperate fully in the execution of any
documents or performance in any way which may be reasonably necessary to carry out
the purposes of this Agreement and to effectuate the intent of the parties hereto.
8. No Admission of Liability. By this settlement, no party admits any liability, but rather
the parties have agreed to this settlement as a compromise of disputed claims in the
interests of avoiding the costs and uncertainty of continued litigation.
9. Time is of the Essence. Time is of the essence of this Agreement.
10. Headings. The headings used in this Agreement are for convenience and reference only
and in no way define, describe, extend, or limit the scope or intent of this Agreement or
the intent of any provision in it.
11. Severability. If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable for any reason, whether on its face or
as applied, the remaining provisions shall remain in full force and effect.
12. Benefit and Binding Effect. This Agreement shall inure to the benefit of and be binding
upon the parties, their heirs, successors and assigns. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The individuals signing below on
behalf of entities represent and warrant that they have the full authority to bind their
respective entities to all of the provisions hereof. Signatures by facsimile transmission or
other electronic transmission of this Agreement shall be acceptable and binding upon the
Parties. A copy hereof shall be as binding as the executed original.
13. Governing Law. This Agreement shall be governed by the laws of the State of Florida,
without regard to its principles of conflicts of law.
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14. Condition Precedent. Any and all other provisions of this Agreement to the contrary
notwithstanding, this Agreement is expressly subject to and conditioned upon its being
approved by the Board of County Commissioners of Collier County, Florida, at a duly
noticed board meeting within the next thirty (30) days. If so approved, this Agreement
shall be in full force and effect in accordance with the terms hereof. If not so approved,
then this Agreement shall be null and void and of no force or effect whatsoever.
W WITNESS WHEREOF, the parties have executed this Agreement on the date first
stated above.
AS TO AFFORDABLE:
Affordable Landscaping Service&Design,
LLC
iii ilh (-- 11 ,
By: f./
Albe 'enar ••' , anager Je '\ib Fri. 'n,Esq.,Counsel for
. M •'.b e L: dscaping Service&Design,
LLC.
i
Albert Benarroch,in his individual ''
capacity �,�
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�
By. f►.1 ‘,t. . � ..
` . .
Albert ena • '� Jeff , idk n, ''q.,Counsel for Albe
Bena 0
AS TO COLLIER COUNTY:
ATTEST:
DWIGHT E.BROCK,Clerk BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY,FLORIDA
By:_ By:
, Deputy Clerk DONNA FIALA,Chairman
Approv.1 ,. a' and legality:
.,iii f
t
i _iii
Jeffrey '', l.•.kow
County , oi.
'ay
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