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Agenda 10/10/2017 Item #16K210/10/2017 EXECUTIVE SUMMARY Recommendation to approve and authorize the Chair to execute a Settlement Agreement and Mutual Release in the lawsuit styled Sharon and Lee Rubenstein v. Hannula Landscaping and Irrigation, Inc. and Collier County (Case No. 16-CA-2045), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida, for $75,000, with payment to be made by Hannula’s insurance carrier and no contribution by Collier County. OBJECTIVE: Recommendation to approve the settlement in the lawsuit filed by Sharon and Lee Rubenstein for $75,000, to be paid by Hannula’s insurance carrier, and authorize the Chair to execute the Settlement Agreement and Mutual Release. CONSIDERATIONS: Plaintiff Sharon Rubenstein alleges that, on February 25, 2015, she was walking in the parking lot of the Historical Museum on Marco Island, when she slipped on mahogany shells that were allowed to collect on the pavement. Plaintiff fell to the ground and sustained a fractured left humerus. She underwent several months of physical therapy and alleges her range of motion is now limited. Her medical bills total approximately $7,500. During the time of the subject accident, the County’s landscape contractor for the museum was Hannula. Pursuant to the contract terms, the County tendered its defense to Hannula and requested that Hannula also indemnify the County in the lawsuit. Hannula, through its insurer, refused to defend or indemnify the County and cited to the terms contained in Hannula’s insurance policy in support of its initial denial. During the discovery phase, the County had ongoing discussions with Hannula’s attorney regarding a potential future claim for breach of contract against Hannula due, in part, to Hannula’s insurer’s refusal to defend the County. Based on these discussions, Hannula’s insurer ultimately agreed to explore resolution of the lawsuit, on behalf of both Hannula and the County. Hannula’s insurer reached a tentative settlement with the Plaintiffs for $75,000.00 to resolve all claims against all defendants. The County will contribute no money toward the $75,000 settlement and will be dismissed from the lawsuit. It is the County Attorney and Risk Management Department’s position that this settlement is reasonable given there will be no funds expended by the County and the lawsuit will be dismissed. FISCAL IMPACT: There is no fiscal impact, as Hannula’s insurer will be paying the entire settlement amount. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a majority vote for approval. - KLN RECOMMENDATION: For the Board of County Commissioners to accept the tentative settlement in the lawsuit styled Sharon Rubenstein and Lee Rubenstein v. Hannula Landscaping and Irrigation, Inc. and Collier County (Case No. 16-CA-2045), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida and authorize the Chair to execute the Settlement Agreement and Mutual Release. PREPARED BY: Kevin L. Noell, Assistant County Attorney Jeffrey A. Klatzkow, County Attorney ATTACHMENT(S) 1. Mutual Release Agreement-Rubenstein (PDF) 10/10/2017 COLLIER COUNTY Board of County Commissioners Item Number: 16.K.2 Doc ID: 3787 Item Summary: Recommendation to approve and authorize the Chair to execute a Settlement Agreement and Mutual Release in the lawsuit styled Sharon and Lee Rubenstein v. Hannula Landscaping and Irrigation, Inc. and Collier County (Case No. 16-CA-2045), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida, for $75,000, with payment to be made by Hannula’s insurance carrier and no contribution by Collier County. Meeting Date: 10/10/2017 Prepared by: Title: Legal Assistant – County Attorney's Office Name: Rosa Villarreal 09/27/2017 9:06 AM Submitted by: Title: County Attorney – County Attorney's Office Name: Jeffrey A. Klatzkow 09/27/2017 9:06 AM Approved By: Review: Risk Management Jeff Walker Additional Reviewer Completed 09/27/2017 10:17 AM County Attorney's Office Kevin Noell Level 2 Attorney Review Completed 09/27/2017 11:22 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 09/27/2017 4:23 PM Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 09/28/2017 9:11 AM Budget and Management Office Mark Isackson Additional Reviewer Completed 09/28/2017 10:06 AM County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 10/03/2017 12:03 PM Board of County Commissioners MaryJo Brock Meeting Pending 10/10/2017 9:00 AM MUTUAL RELEASE AGREEMENT This Mutual Release Agreement ("Agreement') is entered into as of this the day of 2017, by and between: (a) Sharon Rubenstein and Lee Rubenstein; (b) Hannula Landscaping and Irrigation, Inc.; (c) Collier County; and (d) FCC[ Insurance Company. Collectively, all of the foregoing shall be referred to as the "Parties." AGREED TERMS 1. Settlement Payment On behalf of Hannula Landscaping and Irrigation, Inc. and Collier County, Florida, FCCI insurance shall pay to Sharon and Lee Rubenstein $75,000.00 (seventy- five thousand and 00/100 dollars). The Settlement Payment represents full and final settlement of all claims raised or which could have been raised by Sharon and Lee Rubenstein, Hannula Landscaping and Irrigation, Inc. and Collier County. 2. General Release, Sharon and Lee Rubenstein on behalf of themselves, their predecessors, successors, affiliates, assigns, attorneys, agents, employees, representatives, and successors in interest, and all persons acting by, through, under, or in concert with them, and each of them, hereby release and discharge Hannula Landscaping and Irrigation, Inc. and Collier County, together with their predecessors, successors, direct and indirect parent companies, direct and indirect subsidiary companies, insurers including, FCCI, companies under common control with any of the foregoing, affiliates and assigns and its and their past, present, and future officers, directors, shareholders, interest holders, members, partners, attorneys, agents, employees, managers, representatives, assigns and successors in interest, and all persons acting by, through, under or in concert with them, and each of them, from ALL CLAIMS, including, but not limited to, any claims for bodily injury, all known and unknown charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages, property damage, business losses, medical costs, workers compensation liens, hospital liens, medical liens, insurance subrogation claims, claims for contribution, third party interests, pain and suffering, mental anguish, emotional distress, expenses (including attorneys' fees and costs actually incurred), and punitive damages, of any nature whatsoever, known or unknown. Collier County on behalf of themselves, their predecessors, successors, affiliates, assigns, attorneys, agents, employees, representatives, and successors in interest, and all persons acting by, through, under, or in concert with them, and each of them, hereby release and discharge Hannula Landscaping and Irrigation, Inc., together with its predecessors, successors, direct and indirect parent companies, direct and indirect subsidiary companies, insurers including, FCCI, companies under common control with any of the foregoing, affiliates and assigns and its and their past, present, and future officers, directors, shareholders, interest holders, members, partners, attorneys, agents, employees, managers, representatives, assigns and successors in interest, and all persons acting by, through, under or in concert with them, and each of them, from ALL CLAIMS for bodily injury and, including all known and unknown charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages, property damage, business losses, medical costs, workers compensation liens, hospital 2 'k '4L X1'1-7 liens, medical liens, insurance subrogation claims, claims for contribution, third party interests, pain and suffering, mental anguish, emotional distress, expenses (including attorneys' fees and costs actually incurred), and punitive damages, of any nature whatsoever, known or unknown. Hannula Landscaping and Irrigation, Inc. on behalf of themselves, their predecessors, successors, affiliates, assigns, attorneys, agents, employees, representatives, and successors in interest, and all persons acting by, through, under, or in concert with them, and each of them, hereby release and discharge Collier County, together with its predecessors, successors, commissioners, attorneys, contractors, subdivisions, and their past, present, and future officers, directors, interest holders, members, agents, employees, managers, representatives, assigns and successors in interest, and all persons acting by, through, under or in concert with them, and each of them, from ALL CLAIMS for bodily injury and, including all known and unknown charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages, property damage, business losses, medical costs, workers compensation liens, hospital liens, medical liens, insurance subrogation claims, claims for contribution, third party interests, pain and suffering, mental anguish, emotional distress, expenses (including attorneys' fees and costs actually incurred), and punitive damages, of any nature whatsoever, known or unknown. 3. Release of Collier County: On behalf of Hannula Landscaping and Irrigation, Inc. and Collier County, Florida, FCCI Insurance Group is paying to Sharon and Lee Rubenstein $75,000.00 (seventy-five thousand and 00/100 dollars). This K settlement payment represents full and final settlement of all claims raised or which could have been raised by Sharon and Lee Rubenstein, Hannula Landscaping and Irrigation, Inc. and Collier County. That portion of FCCI's payment to resolve this lawsuit, on behalf of Collier County, if any, was made in reciprocity for Collier County's consideration in waiving any claims against FCCI's insured, Hannula Landscaping and Irrigation, Inc. and/or FCCI, related to Collier County's cost of defense and/or indemnification in the subject lawsuit. Based on the aforementioned consideration received by FCCI and FCCI's insured from Collier County, FCCI, together with its predecessors, successors, direct and indirect parent companies, direct and indirect subsidiary companies, insurers, including companies under common control with any of the foregoing, affiliates and assigns and its and their past, present, and future officers, directors, shareholders, interest holders, members, partners, attorneys, agents, employees, managers, representatives, assigns and successors in interest, and all persons acting by, through, under or in concert with FCCI, hereby releases Collier County, together with its predecessors, successors, commissioners, attorneys, contractors, subdivisions, and their past, present, and future officers, directors, interest holders, members, agents, employees, managers, representatives, assigns and successors in interest, and all persons acting by, through, under or in concert with them, and each of them, from ALL CLAIMS, including but not limited to: claims which could be brought in law or equity, including but not limited to, claims for subrogation, claims for contribution, reimbursement, contribution, all known and unknown charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages, business losses, costs, liens, third party interests, expenses incurred (including attorneys' fees and costs actually incurred or to be incurred), and punitive damages, and any and all other claims of any nature whatsoever, known or unknown. 4. Any action to enforce the terms of this Release shall be governed by, construed, interpreted and enforced in accordance with the laws of the State of Florida, without regard to the principles of conflicts of laws, shall be brought only in the Circuit Court of the 20th Judicial Circuit in and for Collier County, Florida, and Collier County will be entitled to recover any attorney fees and costs incurred to enforce the terms of this Release. 5. By signing this Release, the undersigned acknowledges that the undersigned has relied upon the legal advice of FCCI's respective attorneys, who are the attorneys of FCCI's own choosing, that such terms of this Release are fully understood and voluntarily accepted by FCCI, and that, other than the consideration set forth herein, no promises or representations of any kind, whether oral or written, have been made to them. 6. Dismissal of Lawsuit No later than 10 days from the date of the receipt of the Settlement Payment, Sharon and Lee Rubenstein shall file a notice of voluntary dismissal with prejudice of the lawsuit filed in the 20th Judicial Circuit in and for Collier County, Case no.: 16 -CA - 2045. 7. Resolution and Satisfaction of Third -Party Interests/Liens. Settlement is also predicated upon resolution and satisfaction (and release) by Sharon and Lee Rubenstein of any and all third -party interests in each of the claims, including but not limited to hospital and medical liens, Workers Compensation subrogation, all other insurance subrogation (including but not limited to health care insurance, and property insurance), governmental liens (e.g., Child Support liens, Medicare and/or Medicaid), attorneys' fees, and any and all other interests or encumbrances against each and every one of the claims. These liens and interests are to be resolved, satisfied and extinguished by and through the monies paid in settlement to the Party, and no additional funding is being provided for such liens and interests outside of what each Party receives. 8. Counterparts. This Agreement may be executed by the Parties in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each Counterpart shall identify only the amount the settling Party is receiving and only the settling Party shall know the amount to be received. However, even if one or more Party discloses the amount received to one or more other Party, that shall not invalidate the overall Agreement. 9. No Admission of Liability. The Parties acknowledge that the Settlement Payment was agreed upon as a compromise and final settlement of disputed claims and that payment of the Settlement Payment is not, and may not be construed as, an admission of liability by any of the Parties. 10. Agreement is Legally Binding. This Agreement is legally binding upon and shall inure to the benefit of each of the Parties and their respective successors, assigns, executors, administrators, heirs and estates. 11. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties and supersedes all prior negotiations and/or agreements, proposed or otherwise, written or oral, concerning the subject matter hereof. Furthermore, no modification of this Agreement shall be binding unless in writing and signed by each of the Parties hereto. 12. New or Different Facts: No Effect. Except as provided herein, this Agreement shall be, and remain, in effect despite any alleged breach of this Agreement or the discovery or existence of any new or additional fact, or any fact different from that which either Party now knows or believes to be true. Notwithstanding the foregoing, nothing in this Agreement shall be construed as, or constitute, a release of any Party's rights to enforce the terms of this Agreement. 13. Interpretation. Should any provision of this Agreement be declared or be determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and such illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. The headings within this Agreement are purely for convenience and are not to be used as an aid in interpretation. Moreover, this Agreement shall not be construed against either Party as the author or drafter of the Agreement. 14. Governing Law and Choice of Forum. This Agreement is made and entered into within and shall be governed by, construed, interpreted and enforced in accordance with the laws of the State of Florida, without regard to the principles of conflicts of laws. Any action to enforce this Agreement shall be brought only in the Circuit Court of the 20th Judicial Circuit in and for Collier County, Florida. 7 `1' 15. Reliance on Own Counsel. In entering into this Agreement, the Parties acknowledge that they have relied upon the legal advice of their respective attorneys, who are the attorneys of their own choosing, that such terms are fully understood and voluntarily accepted by them, and that, other than the consideration set forth herein, no promises or representations of any kind have been made to them by the other Party. The Parties represent and acknowledge that in executing this Agreement they did not rely, and have not relied, upon any representation or statement, whether oral or written, made by the other Party or by that other Party's agents, representatives or attorneys with regard to the subject matter, basis or effect of this Agreement or otherwise. 16. Attorneys Fees and Costs. All Parties, each and every, shall bear their own costs. 17. Authority to Execute Agreement. By signing below, each Party warrants and represents that the person signing this Agreement on its behalf has authority to bind that Party. 18. Effective Date. The terms of the Agreement will be effective when a fully executed copy of this Agreement is delivered to counsel for the Parties (the "Effective Date"). READ THE FOREGOING DOCUMENT CAREFULLY. IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS. IN WITNESS WHEREOF, and intending to be legally bound, each of the Parties hereto have caused this Agreement to be executed as of the date(s) set forth below. Sharool Rubenstein In ,,,,, ,,,,, MICHELLE BECERRA ' Notary Public - State of Flan a Expires Jun 9. 2016 n c s,• 'o My Comm. Commission # FF 115269 Bonded hrough atToallotar Assn. Date: 8 ick -U ,62 q w 1'"I Printed Name: Counsel: ha)(Aye Lb��, Lee Rubenstein By Printed Name: cc;'P/1 4/13 10^SfP/1 - WR"n &WA Collier County M Printed Name: Approved �as/to for and legality: Counsel: L� Hannula Landscaping and Irrigation, Inc. By Printed Name: Counsel: FCC[ Insurance Company By Date: Printed Name: Michael Kittleberger M Date: q, /' MICHELLE BECERRA PUH .`�pY i " Notary Public •State of Florida My Comm. Expires Jun 9, 2018 ` ;•� *'' ���:' Commission # FF 115269 I I Bonded Through National Notary Assn. Date: Date: Printed Name: Counsel: Lee Rubenstein By___ Printed Name: Counsel: Collier County Printed Name: Counsel: Hannuia Landscaping and Irrigation, Inc. B _ Printed Name: C -D F Counsel: FCCI Insurance Company By Printed Name: Michael Kittleberger 9 Date: Date: Date: Date: SIALwk A 9*I7 Printed Name: Counsel: Lee Rubenstein By Date.- Printed ate:Printed Name: Counsel.- Collier ounsel:Collier County By Date: Printed Name: Counsel: Hannula Landscaping and Irrigation, Inc. Date: Printed Name: Counsel: FCCI Insurance Com y B Date: Printed Name: / ' 7tCnce / 15,1,7' le4"�' Michael Kittleberger 9 Counsel: 10