Sarasota County threatened with lawsuit for Benderson’s failure to pay up
By Jon Susce
Dredging was the foundational construction activity needed to develop the world class Nathan Benderson Rowing Park. Without professional dredging services provided by Dredge America, Randy Benderson’s rowing facility wouldn’t even exist. So how does Benderson show his appreciation? He refuses to make good his promise to pay for the services rendered by Dredge America.
Benderson has refused to pay Dredge America for services rendered despite the fact that for the past 15 years Dredge America has successfully completed over 200 professional hydraulic dredging projects throughout the entire U.S. and has earned the reputation as the leading dredging company in the United States for portable hydraulic dredging services.
Though Dredge America, based in Kansas City, Missouri submitted a “Statement of Payment” invoice on November 18, 2013 for $529,490 for work completed on the Benderson Rowing Park in Sarasota, Benderson has failed to pay it. In
response to Benderson’s refusal to pay for services rendered, Bruce Moothart, who is the attorney representing Dredge America, sent a letter to Benderson on April 22, 2014 stating that he was unable to reach him by phone or email. Moothart questioned Benderson in the April 22, 2014 letter as to why Benderson has failed to pay even the $218,781 of the $529,490 which both parties already agree is owed to Dredge America.
DREDGE AMERICA THREATENS LAW SUIT AGAINST SARASOTA
In the 4/22/14 letter, Moothard informed Benderson that Dredge America is not going to walk away from not getting paid the money Benderson owes and that Dredge America will sue Sarasota County government to resolve the debt.
On May 5, 2014, a memo was sent from Sarasota County Attorney Stephen DeMarsh to assistants, Milan Brkich, Thomas Wolfe and Alan Roddy, informing them that Dredge America attorney, Bruce Moothart, had sent a letter to Randy Benderson threatening to sue Sarasota County if Benderson fails to pay for services rendered. DeMarsh then informed Brkich and Wolfe to inform Risk Management of a potential claim.
DeMarsh should have known Moothart had legal justification for taking such action on behalf of Dredge America. Here’s why: In the 4/22/14 letter, Moothart wrote Benderson the following: “As I am sure you are aware, while governmental entities are often immune to liens against construction, since Sarasota County did not require that Benderson procur a payment and performance bond, Dredge America can proceed directly against Sarasota County to obtain the amount it is owed. See School Board of Broward County Florida v. Trane Co., 840 So .2d 1095 (Fla. Dist. Ct. App. 2003).”
In the memo to his assistants, DeMarsh informs them that Moothart, “has been unable to get anywhere with Randy Benderson.” DeMarsh further states that there have been meetings held without resolution and that Dredge America is threatening a lawsuit. DeMarsh continues in the same memo that Moothart has asked for DeMarsh to take action and contact Benderson, which he did. DeMarsh called Todd Mathes of Benderson Development in Sarasota.
Evidently Sarasota County officials put some pressure on Benderson to negotiate a settlement. On June 14, 2014, Moothart emails Brkich stating, “We are making some progress with Benderson. They have made an opening demand and agreed to mediate the case.” Moothart requests Brkich to be present at the mediation meeting which Brkich eventually declined to attend.
On the same day Moothart emails Benderson and agrees to come to Florida and have a face to face meeting, but only if a mediator and a representative from Sarasota County are present. Moothart states that although he believes mediation will not be successful, he will in good faith attend a meeting with Benderson.
PUBLIC TO PAY WHAT BENDERSON REFUSES TO PAY
What is incredible is that if Dredge America is successful in its lawsuit, Sarasota County taxpayers will be required to pay for Benderson reneging on his fiscal responsibilities. No doubt legal fees will also be paid to Dredge America if they prevail in their lawsuit against Sarasota County.
QUESTIONS NEED TO BE ANSWERED
There are serious questions that need to be asked in regard to Benderson failing to pay for services rendered by Dredge America. Is Randy Benderson’s refusal to pay what he owes Dredge America an isolated incident or are there other vendors of the Benderson rowing facility that have not been paid for services rendered?
The following questions regarding the Randy Benderson Rowing Park were sent by The Sarasota Phoenix to Sarasota County Administrator Tom Harmer and other Sarasota County public officials:
1. How long have you known that Randy Benderson has not been paying contractors for services being provided by vendors doing work at Nathan Benderson rowing facility?
2. Are you aware that Benderson is retaining public funds that Sarasota County appropriated for services and for which the county expected to be paid?
3. Are the proper Florida state officials that are involved with expanding public funds for Nathan Benderson Park aware that Benderson is refusing to pay Dredge America and perhaps other vendors that have worked on the Nathan Benderson rowing facility?
4. Are you aware of other vendors that have not been paid in a timely manner for work done at the Nathan Benderson Park?
5. Why was there no performance clause included in the $19 million no bid contract to manage construction as agreed upon by Sarasota County and Benderson?
6. Why does Sarasota County pay Benderson on a monthly basis for managing the construction of the Nathan Benderson Rowing facility?
7. If Dredge America successfully sues Sarasota County for the money it claims it is owed by Benderson, will Benderson be legally exempt from reimbursing Sarasota County for funds received to pay Dredge America?
8. In addition, will Sarasota County ask Benderson for reimbursement for legal fees if Dredge America prevails in collecting the money they allege Benderson owes them?
9. What legal action are you suggesting Benderson pursue to settle his dispute with Dredge America?
10. Has Sarasota County been contacted by the FBI, IRS, or received a grand jury subpoena from Tampa?
The Sarasota Phoenix received the following response from Tom Harmer in reply to the above questions:
“Mr. Susce, Thank you for your email. “I have been made aware of the dispute between Benderson and one of their subcontractors. This contract is being managed by our Public Works Department with support from the County Attorney’s Office as it relates to the dispute. I have forwarded your questions to our public records coordinator so she is aware and can help provide any public records we may have related to your questions.”
Harmer’s response is completely unacceptable but not a surprise as Randy Benderson has every single Sarasota County commissioner in his pocket. Harmer is just another rubber stamp for whatever Benderson or his crony developers Pat Neal, Carlos Beruff, Rex Jensen and a few others put before him or the five Sarasota County commissioners.
If anyone doubts that the present five Sarasota County Commissioners are in the pockets of the Benderson, Neal, Beruff, Jensen Gang, take a walk up to the Sarasota County Supervisor’s office on Ringling Boulevard. Ask Kathy Dent, Sarasota County Supervisor of Elections, to pull the campaign finance reports of the Sarasota County commissioners and read how, for twelve pieces of silver, the Benderson Gang have bought off the five Sarasota County commissioners, turning Sarasota into the corrupt county government Harmer administers.
As Harmer’s response was unacceptable to The Sarasota Phoenix, this follow-up was delivered to him:
As additional information becomes available to The Sarasota Phoenix, more serious questions are arising in the $19 million cost plus 16% “administrative fee” no bid contract Randy Benderson has with not only the Sarasota County Commission but also with the Sarasota County Clerk’s Office under the direction of Karen Rushing.
1. How is the Randy Benderson Rowing Park project being administered financially? Were the bond funds put on deposit with Benderson upfront? Or are they reimbursed through routine (monthly, quarterly) invoices?
2. If they are reimbursed, is the Sarasota County Clerk’s Office, under the direction of Karen Rushing, confirming that subcontractor invoices are actually paid by Benderson before they are invoiced to the county?
3. What are the contractual provisions in the agreement between the county and Benderson that insulate the county from exposure or liability?
4. Are indemnification and warranty clauses boiler-plate for these contracts? If they are not in the contract, why did the Sarasota County Clerk’s office not include them?
5. How is the “project management” (no bid) contract invoiced and paid out by the county to Benderson? How did Rushing’s office let this go out with no competitive bidding?
In addition, this potential exposure also results in the county breaching its own investment cap ($19.5 million) without a referendum, especially if there is no performance bond or indemnification clause.
Under these circumstances, it is clear that the county would exceed the $19.5 million. The failure to have those protections is tantamount to gross negligence and failure to perform just and capable services.