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Agenda 02/09/2010 Item #16K6 Agenda Item No. 16K6 February 9,2010 Page 1 of 10 EXECUTIVE SUMMARY Approval of agreement between Collier County and Physician Led Area Network (PLAN) for the County Attorney's Office to provide defense for PLAN in the lawsuit styled Deborah Dahlmanns V. Plan and Marcy Krumbine, Case No. 09-7915-CA OBJECTIVE: For the Board to: (I) approve an agreement between Collier County and PLAN that authorizes the Office of the County Attorney to defend PLAN in the lawsuit styled Deborah Dahlmanns v. PLAN and Marcv Krumbine, Case No, 09-79l5-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida; and (2) declare that such defense serves a public purpose. CONSIDERATIONS: Marcy Krumbine, an employee of Collier County, was serving as Chairperson of the Board of Directors of PLAN when the Executive Director of PLAN, Deborah Dahlmanns was terminated. Deborah Dahlmanns was notified of the termination in a letter written by Ms. Krumbine. At the time of the termination and presently, Ms Krumbine's position was and is Director of Housing and Human Services for Collier County. Prior to this instance, other Collier County employees have served on the Board of PLAN. PLAN is a not-for-profit entity created to provide medical care for indigent Collier County residents. It operates on grant funds and donations. PLAN has indicated to the County that it has no funds to provide an adequate defense. Although PLAN secured liability insurance, pursuant to its contract with the County, the insurance company has agreed only to provide a defense for Ms Krumbine. The insurer's position is that an action on a contract of employment is excluded from coverage. The facts of this matter are extraordinarily unique and inextricably involve a County employee. A defense of PLAN is in the public interest and serves a public purpose by preserving funds for indigent health care for Collier County residents. If the Board authorizes this Office to represent PLAN, this Office will do so provided there is no conflict with the Board of County Commissioners. There may come a time, however, where the best interests of PLAN do not coincide with the best interests of Marcy Krumbine. Should such a conflict arise, this Office will seek further direction from the Board. FISCAL IMP ACT: There will be no out-of-pocket expenses, as all legal work will be done by this Office. Collier County will not assume any responsibility for any damage award or attorney fees and costs award against PLAN and will provide only a legal defense to the litigation. Under the agreement Collier County may seek reimbursement for all outside costs incurred by the Office of the County Attorney, including deposition costs, court reporter costs, copying, and mailing costs. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board approve the agreement to provide a defense for PLAN that authorizes the Office of the County Attorney to defend PLAN in the lawsuit styled Agenda Item No. 16K6 February 9.2010 Page 2 of 10 Deborah Dahlmanns v. PLAN and Marcy Knunbine, Case No. 09-79l5-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida; and to declare a public purpose for same. PREPARED BY: Jeffrey A. Klatzkow, County Attorney 2 Item Number: Item Summary: Meeting Date: Agenda Item No. 16K6 February 9. 2010 Page 3 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16K6 Approval of agreement between Collier County and Physician Led Area Network (PLAN) for the County Attorneys Office to provide defense for PLAN in the lawsuit styled Deborah Dahlmanns V. Plan and Marcy Krumbine, Case No. 09-7915-CA. 2/9/2010 9:00:00 AM Date Prepared By Jeff Klatzkow County Attorney 2/1/20103:36:25 PM Date Approved By Jeff Klatzkow County Attorney 2/1/20103:43 PM Date Approved By OMS Coordinator County Manager's Office Office of Management & Budget 2/1/20104:08 PM Date Approved By Susan Usher Office of Management & Budget Management/Budget Analyst, Senior Office of Management & Budget 2/1/20107:10 PM Date Approved By Mark Isackson Office of Management & Budget Management/Budget Analyst, Senior Office of Management & Budget 212/20108:54 AM Agenda Item No. 16K6 February 9, 2010 Page 4 of 10 AGREEMENT BETWEEN COLLIER COUNTY AND COLLIER WE CARE, INC. aka PHYSICIAN LED ACCESS NETWORK (PLAN) OF COLLIER COUNTY This Agreement ("Agreement") is made by and between the Board of County Commissioners of Collier County, Florida (the "County"), and the Collier We Care, Inc, aka Physician Led Access Network of Collier County ("PLAN"), a Florida not-for-profit corporation, which has been determined to be exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code of 1986, as amended ("Code") and not to be a private foundation within the meaning of section 509(a) of the Code. WHEREAS, an action for declaratory relief and judgment has been filed in the Twentieth Judicial Circuit, in and for Collier County, styled Deborah Dahlmanns v. PLAN and Marcv Krumbine, Case No. 09-7915-CA ("Lawsuit"), in which County employee Marcy Krumbine has been sued individually in her capacity as Chairperson of the Board of Directors of PLAN; and WHEREAS, PLAN has a contract with the County through August 31, 2010 [see copy attached as Exhibit "A"] to perform medical services for uninsured Collier County residents; and WHEREAS, under said contract, PLAN secured liability insurance; however, PLAN's insurer has declined to pay PLAN's legal expenses related to the Lawsuit because the Lawsuit accuses PLAN of breach of contract; and WHEREAS, the Lawsuit alleges, inter alia, a County employee, Marcy Krumbine, terminated an employee of PLAN without cause, precipitating the Lawsuit; and WHEREAS, ~ 3.2 of PLAN's By-Laws require its Board of Directors to include one representative from Collier County Govemment and Marcy Krumbine was that member at all times material hereto; and Agenda Item No. 16K6 February 9, 2010 Page 5 of 10 WHEREAS, Marcy Krumbine's Job Description requires her "to collaborate with PLAN to insure success of the physician donated services as part of the safety net for health care services for the uninsured."; and to "Implement Health Information Technology Grant with PLAN..."; and WHEREAS, PLAN has alleged it has insufficient funds for its defense of the Lawsuit; and the County does not wish to have its grant funds used for litigation expenses; and WHEREAS, the Collier County Attorney's Office is willing to defend PLAN and such defense will be conducted with an attorney from the County Attorney's Office ("County Attorney"), and thus, will not affect the grant award to PLAN; and WHEREAS, this in-house defense of the Lawsuit will aid PLAN in its delivery of medical care to uninsured Collier County residents; and WHEREAS, the County has determined this defense serves a public purpose; and NOW THEREFORE, in consideration of the premises contained herein, the Collier County Board of County Commissioners agrees to assign the County Attorney to provide a defense in the Lawsuit for PLAN as set forth below: ARTICLE 1 TERM AND TIME OF PERFORMANCE 1.1 The term of this Agreement shall be until the conclusion of the Lawsuit, unless terminated earlier in accordance with the provisions of this Agreement or at the discretion of the County Attorney. In the event the term of this Agreement extends beyond a single fiscal year of County, the continuation of this Agreement beyond the end of any fiscal year shall be subject to the availability of funds from County in accordance with Chapter 129, Florida Statutes. 2 Agenda Item No. 16K6 February 9, 2010 Page 6 of 10 1.2 Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities of this Agreement. 1.3 Any amendments, alterations, variations, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, duly signed by both parties hereto, and attached to the original of this Agreement. 1.4 In the event PLAN is found liable in the Lawsuit, the County does not assume any responsibility for any damage awards or attorneys' fees and costs awards against PLAN and will provide only a legal defense to the Lawsuit. The County may seek reimbursement from PLAN for all outside costs relating to the Lawsuit, such as court costs, court reporter costs, copying, and mailing. ARTICLE 2 TERMINATION 2.1 This Agreement may be terminated by either party for cause upon five (5) days notice or by either party for convenience upon no less than ten (10) days advance written notice. 2,2 Termination of this Agreement for cause shall include, but not be limited to, failure, in the opinion of the County Attorney, to cooperate with the County Attorney, or failure to continuously perform in a manner determined by the County Attorney to meet or accomplish the objectives of the County Attorney in the Lawsuit. The County Attorney may also terminate this Agreement if he determines, in his sole discretion, that a conflict exists with his primary client, the Board of County Commissioners, as well as the County Administrator or County Staff. 2,3 Upon notice by either party to terminate, the County shall refrain from performing further services or incurring additional expenses under the terms of this Agreement. 3 Agenda Item No. 16K6 February 9,2010 Page 7 of 10 2.4 PLAN acknowledges and agrees that Ten Dollars ($10) of compensation will be paid by the County, the adequacy of which is hereby acknowledged by PLAN, as specific consideration to PLAN for the County's right to terminate this Agreement for convenience. 2.5 The County's obligations to PLAN as provided for hereunder shall cease upon termination, except for participating in an orderly and professional transfer of such responsibilities and files or copies of files to PLAN or its designee. ARTICLE 3 REVIEW AND INSPECTION OF RECORDS 3.1 The County shall have the right to review all books and records of PLAN pertinent to the Lawsuit as determined by the County Attorney. PLAN shall preserve and make available at reasonable times for examination, review, and copying by the County Attorney, all PLAN Board minutes, memoranda, by-laws, financial records, supporting documents, and, any other documents deemed pertinent to the Lawsuit by the County Attorney, upon request within 2 days of request, by the County Attorney; whether verbal or written. 3.2 The County and PLAN shall comply with the Florida Public Records Act (Chapter 119, Florida Statutes) if determined to be applicable to PLAN's records, however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by the County or PLAN. ARTICLE 4 INDEMNIFICATION 4.1 PLAN acknowledges and agrees that an additional Ten Dollars ($10.00) of compensation paid by the County, the adequacy of which is hereby acknowledged by PLAN, is given as specific consideration to PLAN so that PLAN shall at all times 4 Agenda Item No. 16K6 February 9. 2010 Page 8 of 10 hereafter indemnify, hold harmless and; at the County's option, defend or pay for an attorney selected by the County to defend the County, its officers, agents, servants, and employees against any and all claims, losses, liabilities, and expenditures of any kind, including attorney fees, court costs, and expenses, caused by negligent act or omission of PLAN, its employees, agents, servants, or officers, or accruing, resulting from, or related to the subject matter of this Agreement including, without limitation, any and all claims, demands or causes of action of any nature whatsoever resulting from injuries or damages sustained by any person or property. The provisions of this section shall survive the expiration or earlier termination of this Agreement. To the extent considered necessary by the County, any swns due PLAN under this Agreement may be retained by the County until all of the County's claims for indemnification pursuant to this Agreement have been settled or otherwise resolved; and any amount withheld shall not be subject to payment of interest by the County. ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Any and all original or copies of reports, photographs, surveys, and other data and docwnents provided, requested, received, or created in connection with the Lawsuit and placed in the possession of the County shall remain the property of the County. ARTICLE 6 NOTICES 6.1 Whenever either party desires to give notice to the other, such notice may be in writing, sent by registered, certified, or regular United States Mail, postage prepaid, return receipt requested, or by hand-delivery, addressed to the party for whom it is intended at the place last specified; or by facsimile transmission. The place for giving notice shall remain the 5 Agenda Item No. 16K6 February 9, 2010 Page 9 of 10 same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: FOR COLLIER COUNTY: Jeffrey A. Klatzkow, County Attorney Collier County Government Center Administration Building, 8th Floor 3301 Tamiami Trail East Naples, Florida 34112 Telephone: (239) 252-8400 Fax: (239) 774-0225 FOR PLAN: Physician Led Access Network (PLAN) of Collier County, Inc. 1012 Goodlette-Frank Rd., Suite #201 Naples, Florida 34101 Paul Mitchell, M.D., Board Vice-Chainnan Telephone: (239) 434-0008 Fax: (239) 417-8900 ARTICLE 7 MISCELLANEOUS 7.1 COMPLIANCE WITH LAWS The parties shall comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in perfonning its duties, responsibilities, and obligations related to this Agreement. 7.2 APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Venue for litigation concerning this Agreement shall be in Collier County, Florida. 7.3 INCORPORATION BY REFERENCE 6 Agenda Item No. 16K6 February 9, 2010 Page 10 of 10 The truth and accuracy of each "Whereas" clause set forth above is incorporated herein and acknowledged by the parties. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: DEPUTY CLERK FRED W. COYLE, CHAIRMAN al sufficiency PHYSICIAN LED ACCESS NETWORK (PLAN) By: Its: STATE OF FLORIDA COUNTY OF COLLIER The foregoing Agreement was acknowledged before me this _ day of 2010, by as of PLAN. He/she is personally known to me or produced as identification. Signature of Notary Public Name of Notary Public typed, printed or My Commission Expires: 7