Item T09 T.9
County f � .�� ",�, 1 BOARD OF COUNTY COMMISSIONERS
Mayor Craig Cates,District 1
Mayor Pro Tem Holly Merrill Raschein,District 5
The Florida Keys
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
County Commission Meeting
March 22, 2023
Agenda Item Number: T.9
Agenda Item Summary #11879
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292-3470
Yes
AGENDA ITEM WORDING: Approval of settlement agreement to resolve litigation in the case
of AshBritt, Inc. v. Monroe County, 16th Jud. Cir. Case No. 17-CA-802-K; rescission of 5/16/2018
letter terminating prior contract with AshBritt and reinstatement of AshBritt contract dated
6/21/2017; exercise of year 1 and year 2 options to renew AshBritt through 8/1/2023; approval to
issue new Request for Proposals for disaster recovery and response services including debris
collection with the goal of having new contract(s) in place with debris vendors with an effective date
of 8/1/2023.
ITEM BACKGROUND: The litigation at issue is an action by AshBritt, Inc. against Monroe
County for breach of contract and breach of the implied duty of good faith and fair dealing. The
lawsuit arises from services performed by AshBritt, Inc. after Hurricane Irma in 2017,pursuant to an
Agreement for Disaster Response and Recovery Services between AshBritt and Monroe County
awarded on 6/21/2017 following a Request for Proposals (RFP). The lawsuit by AshBritt against
Monroe County and Florida Department of Transportation (FDOT),AshBritt, Inc. v. Monroe County
et al., 161h Jud. Cir. Case No. 17-CA-802-K, was filed on 10/24/2017. (FDOT was dropped as a
defendant shortly thereafter.)
For the work that it performed following Hurricane Irma, AshBritt issued a total of 19 invoices to the
County. On 16 of the invoices, AshBritt was paid a total of approximately $9.8 million. However,
on two of the invoices (issued in November 2017 and January 2018), AshBritt claimed that it was
entitled to an additional $536,100 for putrid waste removal from the ROW (right of way), and on a
third invoice (issued in January 2018), AshBritt sought another $555,510.15 for"additional haulout"
charges. The County's position was that neither incremental charge was in the contract, and refused
to pay.
On 5/16/2018, the County notified AshBritt that it was terminating the AshBritt contract. The
County also has a currently existing contract with another vendor, DRC Emergency Services, dated
10/30/2017.
The parties have recently reached a proposed agreement to settle the litigation fully and finally. The
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T.9
key deal points of the settlement are as follows:
• AshBritt's contract dated 6/21/2017 is reinstated;
• AshBritt's contract had an initial 5-year term, followed by five 1-year extensions to renew at
the option of the County. If this agenda item is approved, the County will exercise the first
two options, to extend the contract through 8/1/2023;
• The County will issue another RFP for disaster recovery and response services. The intent is
to have proposals from qualified vendors back and a recommendation for award to the BOCC
on the 7/19/2023 meeting, with an effective date for new contract(s) of 8/1/2023;
• Both DRC and AshBritt will be notified that their current contracts will be terminated on
8/1/2023 (the date of the new award);
• Monroe County will pay $100,000 to AshBritt;
• Each parry releases any and all claims against each other, and each parry bears its own
attorneys' fees and costs both at the trial and appellate level; and
• The parties will jointly dismiss the case.
The proposed settlement has been approved by AshBritt. The settlement is in the best interests of
the County, and staff recommends approval.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
Approval settlement agreement; rescission of 5/16/18 termination letter; reinstatement of 6/20/17
agreement; approval to issue RFP for debris contract.
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Ashbritt Executed_Settlement Agreement 03.14.2023 - 2017CA802K(00275366xDBB48)
Exh A, Stipulation for Dismissal AshBritt
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract: $100,000
Total Cost to County: $100,000
Current Year Portion: $100,000
Budgeted: YES
Source of Funds: 001-00107
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
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Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required: Yes, as provided in 2017 AshBritt contract.
Additional Details:
$100,000 settlement payment to AshBritt
REVIEWED BY:
Cynthia Hall Completed 03/14/2023 2:02 PM
Christine Limbert Completed 03/14/2023 2:38 PM
Bob Shillinger Completed 03/14/2023 2:51 PM
Purchasing Completed 03/14/2023 2:51 PM
Budget and Finance Completed 03/14/2023 2:57 PM
Brian Bradley Completed 03/14/2023 4:12 PM
Lindsey Ballard Completed 03/14/2023 4:21 PM
Board of County Commissioners Pending 03/22/2023 9:00 AM
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T.9.a
SETTLEMENT AGREEMENT
This Settlement Agreement ("Settlement Agreement") is made as of the last date that a
signature has been affixed below ("Effective Date") between AshBritt, Inc. ("AshBritt"), and
Monroe County, Florida ("County") (collectively "the Parties").
WHEREAS,AshBritt and the County are the remaining parties in AshBritt,Inc.v. Monroe
Coun , Case No. 2017-CA-000802-K, currently pending in the Circuit Court for the Sixteenth
Judicial Circuit, in and for Monroe County, Florida ("Litigation"); and
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WHEREAS, the Parties desire to achieve a full, final, and complete resolution to all
disputes, claims, and matters whatsoever, whether raised or not, (i)in the Litigation and(ii)in any U)
way arising, expressly or by implication, from the agreement at issue in the Litigation, i.e., the
Agreement for Disaster Response and Recovery Services dated June 21, 2017 ("Contract");
THEREFORE, in consideration of the mutual promises contained herein, the Parties
hereby settle the Litigation and release all claims against one another under the following terms:
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1. The above recitals are true and an integral part of this Agreement.
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2. The intent of this Settlement Agreement is to resolve, fully and finally, the N
Litigation, together with any and all claims and potential claims arising from or in any way related
to or connected with the alleged facts, claims, or circumstances asserted in the Litigation. No
aspect or element of the Litigation is excluded from this Agreement. 00
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3. A Stipulation for Dismissal and Final Order of Dismissal of the Litigation is V-
attached hereto as Exhibit A. Upon delivery of this fully executed Settlement Agreement to
AshBritt by email, the County shall be entitled to submit Exhibit A to the Court and request the
entry of the Final Order of Dismissal,Reserving Jurisdiction to Enforce the Settlement Agreement.
4. Within ten (10) business days following execution of this Agreement by both
Parties, the County shall deliver a lump sum payment in the amount of one hundred thousand
dollars ($100,000) ("Settlement Amount")to AshBritt.
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5. Immediately upon execution of this Agreement by both Parties, (i) the May 16,
2018 letter issued by the County to AshBritt terminating the Contract pursuant to paragraph 9.513
of the Contract will be deemed to have been withdrawn, (ii) the Contract will be reinstated and
deemed to have remained in full force through June 20, 2022, (iii)the Contract will also be deemed
to have been renewed a first time by the County (prior to the Contract's expiration) through June
20, 2023, and (iv) the Contract will also be deemed to have been renewed a second time by the
County (prior to the Contract's expiration)through August 1, 2023. The intent of this paragraph 5
is to create a reinstatement of the Contract without any changes to its terms for a term/period
ending on or before August 1, 2023, after a Request for Proposals for Disaster Response and
Recovery Services ("New RFP")is issued and awarded by the County.
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6. The County shall issue written notice to DRC Emergency Services, LLC ("DRC"),
pursuant to paragraph 9.5(D) of the October 30, 2017 Agreement for Disaster Response and
Recovery Services between the County and DRC ("DRC Contract") that the DRC Contract shall
be terminated effective August 1, 2023.
7. Following the Effective Date of this Agreement, the County will issue the New E
RFP. The County will thereafter review responses, select a vendor, and award a new contract 2
("New Contract") to one or more entities, with an effective date for the New Contract of August
1, 2023.
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8. In the event that unforeseen events cause the award of the New Contract or the 0
effective date of the New Contract to be delayed past August 1, 2023, then the County will be U)
entitled to proceed in a commercially reasonable manner to issue, procure and award the New
Contract.
9. AshBritt's General Release: By signing this Settlement Agreement, AshBritt
hereby irrevocably releases and forever discharges Monroe County,the County's officials, officers,
agents, representatives, employees, contractors, attorneys, and insurance carriers (including but
not limited to the Florida League of Cities, Inc. and Florida Municipal Insurance Trust) from any
and all actions, claims, and causes of action that AshBritt has, ever had, or may have, includingLO
but not limited to claims for attorneys' fees and costs at both the trial court and appellate court
level, from the beginning of time to the Effective Date of this Agreement. By entering into this
Settlement Agreement, AshBritt explicitly waives all of the aforementioned Claims. The only
claim excluded from the scope of any general release created by this Agreement is the right to 00
enforce the terms of this Agreement. U
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10. County's General Release: By signing this Settlement Agreement, the County N
hereby irrevocably releases and forever discharges AshBritt, together with AshBritt's officers, N
directors, agents, representatives, employees, contractors, attorneys, and insurance carriers from
any and all actions, claims, and causes of action that the County has, ever had, or may have,
including but not limited to claims for attorneys'fees and costs at both the trial court and appellate
court level, from the beginning of time to the Effective Date of this Agreement. By entering into
this Settlement Agreement, the County explicitly waives all of the aforementioned Claims. The
only claim excluded from the scope of any general release created by this Agreement is the right
to enforce the terms of this Agreement.
11. AshBritt and Monroe County acknowledge that each takes a different view of the
facts, circumstances, and law related to the Litigation. The Parties acknowledge that this
Settlement Agreement is based upon a mutual desire to resolve the dispute. This Settlement (n
Agreement is entered into to resolve the Litigation in its entirety and to avoid the expenditure of
time and resources, and the settlement will not be considered to be any admission of liability by
either side in the Litigation. X
12. This Agreement is binding upon the Parties, their successors, assigns,
representatives, agents, officials, officers, directors, and all other representatives of each of the
Parties.
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13. The execution of and performance under this Agreement has been duly authorized
by all applicable laws and regulations and all necessary corporate action, and this Agreement
constitutes a valid and binding obligation imposed upon the County and AshBritt.
14. This Agreement may be executed in counterparts, each of which shall be an
original,but all of which together shall constitute one and the same instrument.
15. This Agreement will be governed exclusively by Florida law and with the exclusive
venue for any lawsuit relating to the Agreement in Monroe County,Florida. E
AshBritt,Inc.
By ittany erkins Castillo as President CL
Datq�,March .,2023
Att s. t ern for AsliT r "
By �� d��r����t_ a,a�,,�� as s'`���aR n, (title) �e
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Board of County Commissioners of Monroe County,Florida _
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By Craig Cates as Mayor
Date: March 2023
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Attestation for Monroe County N
By Kevin Madok as Clerk
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY
ASHBRITT, INC., a Florida corporation, Case No. 17-CA-802-K
Plaintiff, Hon. Timothy J. Koenig
V.
MONROE COUNTY, FLORIDA; et al.
Defendants.
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STIPULATION FOR DISMISSAL WITH PREJUDICE
IT IS HEREBY STIPULATED AND AGREED by and between the undersigned
counsel for the respective parties herein, that the claims of ASHBRITT, INC., against Defendant
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MONROE COUNTY have been amicably resolved in accordance with the attached Settlement
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Agreement, and shall be dismissed with prejudice, with each of the respective parties herein to
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bear its own costs and attorneys' fees. The Court reserves jurisdiction to enforce the terms of the CL
Settlement Agreement.
DATED this day of March 2023. U)
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SMITH/HAWKS JOHNSON, ANSELMO, MURDOCH,
Counsel for PlaintiAshBritt, Inc. BURKE, PIPER & HOCHMAN, P.A. �+
Counsel for Monroe County, Florida
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By: By:
Barton W. Smith Jeffrey L. Hochman
Florida Bar No. 20169 Florida Bar No. 902098
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Lucas S. Lanasa
Florida Bar No. 73866
MONROE COUNTY ATTORNEY'S
OFFICE
Co-Counsel for Monroe County, Florida
By:
Cynthia L. Hall
Florida Bar No. 34218
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
efiled and served this day of March 2023via the e-portal on all counsel of record in this matter.
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By:
Cynthia L. Hall
Florida Bar No. 34218
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T.9.b
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY
ASHBRITT, INC., a Florida corporation, Case No. 17-CA-802-K
Plaintiff, Hon. Timothy J. Koenig
V.
MONROE COUNTY, FLORIDA; et al.
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Defendants. E
FINAL ORDER OF DISMISSAL WITH PREJUDICE AND RETENTION OF
JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT
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THIS CAUSE came before the Court upon the filing of the parties' March , 2023,
Stipulation for Dismissal with Prejudice, and the Court being duly advised in the premises, it is
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ORDERED AND ADJUDGED that this case is hereby dismissed with prejudice with
each party to bear its own attorney's fees and costs. The Court approves and adopts the Settlement
Agreement attached to the parties' March 2023, Stipulation for Dismissal with Prejudice
("Settlement Agreement") as an order of the Court, directs the parties to abide by the Settlement
Agreement, and retains jurisdiction to enforce the Settlement Agreement.
DONE AND ORDERED in Chambers at Key West, Monroe County Florida this DDDD.
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Copies furnished to:
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APPOINTED OFFICERS (continued)
• A copy of the form must be provided immediately to the other members of the agency.
• The form must be read publicly at the next meeting after the form is filed.
IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:
• You must disclose orally the nature of your conflict in the measure before participating.
• You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the
meeting,who must incorporate the form in the minutes.A copy of the form must be provided immediately to the other members of the
agency, and the form must be read publicly at the next meeting after the form is filed.
................ ............... _._...._
DISCLOSURE OF LOCAL OFFICER'S INTEREST
Holly Merrill Raschein hereby disclose that on March 22 20 23
(a)A measure came or will come before my agency which (check one or more)
inured to my special private gain or loss;
inured to the special gain or loss of my business associate,
_ inured to the special gain or loss of my relative,
inured to the special gain or loss of AshBritt Item T-9 by
whom I am retained; or
inured to the special gain or loss of which
is the parent subsidiary, or sibling organization or subsidiary of a principal which has retained me.
(b)The measure before my agency and the nature of my conflicting interest in the measure is as follows:
If disclosure of specific information would violate confidentiality or privilege pursuant to law or rules governing attorneys, a public officer,
who is also an attorney, may comply with the disclosure requirements of this section by disclosing the nature of the interest in such a way
as to provide the public with notice of the conflict.
March 22, 2023
Date Filed nature
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE
CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT,
REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A
CIVIL PENALTY NOT TO EXCEED $10,000.
....._.................... ..... ...._
CE FORM 8B-EFF.11/2013 PAGE 2
Adopted by reference in Rule 34-7,010(1)(f),F.A.C.
FORM 8B MEMORANDUM ORANDUM OF VOTING CONFLICT FOR.
COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS
.......................
LAST NAME—FIRST NAME—MIDDLE NAME NAME OF BOARD,COUNCIL COMMISSION,AUTHORITY,OR COMMITTEE
Raschein Merrill Holly BOCC
................................. ... _.
MAILING ADDRESS THE BOARD COUNCIL,COMMISSION,AUTHORITY OR COMMITTEE ON
102050 Overseas Hwy WHICH I SERVE IS A UNIT OF:
TY
.............. COUNTY --- El CITY UfCOUNTY ❑OTHER LOCAL AGENCY
CI — .......,
Key Largo, FL 33037 NAME OF POLITICAL SUBDIVISION:
DATE ON WHICH VOTE OCCURRED
March 22, 2023 MY POSITION IS:
d ELECTIVE ❑ APPOINTIVE
WHO MUST FILE FORM 813
This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council,
commission, authority, or committee. It applies to members of advisory and non-advisory bodies who are presented with a voting conflict of
interest under Section 112.3143, Florida Statutes.
Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before
completing and filing the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
would inure to his or her special private gain or loss. Each elected or appointed local officer also MUST ABSTAIN from knowingly voting on
a measure which would inure to the special gain or loss of a principal (other than a government agency) by whom he or she is retained
(including the parent, subsidiary, or sibling organization of a principal by which he or she is retained);to the special private gain or loss of a
relative; or to the special private gain or loss of a business associate.Commissioners of community redevelopment agencies(CRAs) under
Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited
from voting in that capacity.
For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law,
mother-in-law, son-in-law, and daughter-in-law.A"business associate" means any person or entity engaged in or carrying on a business
enterprise with the officer as a partner,joint venturer, coowner of property, or corporate shareholder(where the shares of the corporation
are not listed on any national or regional stock exchange).
ELECTED OFFICERS:
In addition to abstaining from voting in the situations described above, you must disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are
abstaining from voting; and
WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the
minutes of the meeting, who should incorporate the form in the minutes.
APPOINTED OFFICERS:
Although you must abstain from voting in the situations described above, you are not prohibited by Section 112,3143 from otherwise
participating in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision,
whether orally or in writing and whether made by you or at your direction.
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE
TAKEN:
You must complete and file this form (before making any attempt to influence the decision)with the person responsible for recording the
minutes of the meeting,who will incorporate the form in the minutes. (Continued on page 2)
CE FORM 88-EFF.11/2013 PAGE 1
Adopted by reference in Rule 34-7,010(1)(f),F.A,C,