Backup Documents 06/14/2016 Item #16K 3 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 16 K 3
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTINGSLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office KN 6-14-16
4. BCC Office Board of County W 63,11 /
Commissioners lt�-16` (
5. Minutes and Records Clerk of Court's Office (^ ,
(g 1 I(0 3',3
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the
addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff Kevin Noel Contact Information 239-252-8400
Contact/ Department
Agenda Date Item was June 14,2016 Agenda Item Number 16K3
Approved by the BCC
Type of Document Pre-suit mediated settlement agreement and Number of Original One
Attached authorize the Chair to execute a Settlement V Documents Attached
Agreement with Affordable Landscaping Service
&Design,LLC.and Albert Benarroch.
PO number or account n/a
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
I. Does the document require the chairman's original signature Original Signature KN
2. Does the document need to be sent to another agency for additional signatures? If yes, KN
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be KN
signed by the Chairman, with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's KN
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the KN
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's KN
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip KN
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on 06-14-16 and all changes made during KN
the meetinghave been incorporated in the attached document. The Count
P Y
Attorney's Office has reviewed the changes,if applicable.
9. Initials of attorney verifying that the attached document is the version approved by the to.)_ \
BCC all changes directed by the BCC have been made and the document is ready for the
Chairman s signature. •�'°�"
I:Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS Original 9.03.04,Revised 1.26.05,Revised 2.24.05;Revised 11/30/12
3 GRANT 16K
FRIDKIN JEFFREY D. FRIDKIN
Board Certified Civil Trial Attorney
PEARSON Board Certified Business Litigation Attorney
239.514.1000 Ext.2008
jfridkin@gfpac.com
June 8, 2016
LA:; C
Kevin L. Noell
Assistant County Attorney
Collier County Attorney's Office
3299 Tamiami Trail E.
Harmon Turner Building, Suite 800 N
Naples, FL 34112
Re: Affordable Landscaping Service & Design, LLC and Albert Benarroch /Collier County
Pre-Suit Mediated Settlement Agreement
Dear Mr. Noell:
Enclosed please find Pre-Suit Mediated Settlement Agreement containing the original signatures of
Albert Benarroch individually and as Manager of Affordable Landscaping Service & Design, and
myself as counsel for Albert Benarroch individually and Affordable Landscaping Service & Design,
LLC.
Please pr•vide our office with a fully executed copy of the Pre-Suit Mediated Settlement Agreement.
Sincer€l
Jeffr D. Fri•
JDF/Ik
Enclosure
GRANT FRIDKIN PEARSON,P.A. 5551 Ridgewood Drive,Suite 501,Naples,Florida 34108 I T 239.5141000 F 239.514.0377 I www.gfpac.com
16K 3
Memorandum
To: Minutes and Records
Clerk of Court's Office
From: Jessica Hayes
County Attorney's Office
Date: June 14, 2016
Re: Pre-suit Mediated Settlement Agreement
Once executed, a copy (our office will retain the original) of this agreement needs to be sent to:
Grant, Fridkin, Pearson, PA
5551 Ridgewood Drive
Suite 501
Naples, FL 34108
Thank you,
9,(1)ACCd-, "I
ra
Jessica Hayes
Legal Assistant
Collier County Attorney's Office
16K 3
ice::.
Count}-of'Collior
CLERK OF THE CICU ) COURT
COLLIER COUNTY COLIIRTHO SE
3315 TAMIAMI TRL E STE 102 Dwight E. Brock-ClerkOf Circuit Court P.O. BOX 413044
NAPLES,FL 34112-5324 "V'' NAPLES,FL 34101-3044
Clerk of Courts • Comptroller • Auditor • Custodian of County Funds
June 20, 2016
Grant, Fridkin, Pearson, P.A.
Attn: Jeffrey D. Fridkin,
5551 Ridgewood Drive
Suite 501
Naples, Florida 34108
Re: Pre-Suit Mediated Settlement Agreement
Transmitted herewith is one (1) certified copy of the the above referenced document for
your records per request, as adopted by the Collier County Board of County
Commissioners of Collier County, Florida on Tuesday, June 14, 2016, during Regular
Session.
Very truly yours,
DWIGHT E. BROCK, CLERK
Martha Vergara, Deputy - k
Enclosure
Phone- (239) 252-2646 Fax- (239) 252-2755
Website- www.CollierClerk.com Email-CollierClerk@collierclerk.com
16K 3
PRE-SUIT MEDIATED SETTLEMENT AGREEMENT
This PRE-SUIT MEDIATED 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.
1
16K
3
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 ata 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
2
16K 3
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.
3
1 6K 3
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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
stated above.
AS TO AFFORDABLE:
Affordable Landscaping Service &Design,
LLC ,
B y: ./.."/
f N10..k�Q.�. / '�--
�.
Albe ena - anager Jeffrey 11 Itik.1, Esq.,Counsel for
Afforda• vl ds aping Service&Design,
LLC.
Albert Benarroch,in his individual
capacity \ q (1BY: — _ , t�- -
Albert enar y.- Jeffrey D. X411 sq., Counsel for Albert
Benarroch
AS TO COLLIER COUNTY:
ATTEST:
DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY,FLORIDA
Be--)v: ; -,ti
Attest as to Ghairman'4) , c. DONNA FIALA,Chairman
`p Y �'�
signa re o ly
App i -a si
'. form and legality:
—IliI
Jeffre A. '' atzkow
Coun A 'limey
ry
4