Agenda 03/10/2009 Item #16K 2
l\genda It8m N'J. 16K2
~v'1arch '10, 2009
Page 1 of 9
.~
EXECUTIVE SUMMARY
Recommendation to approve settlement in the lawsuit entitled Collier County, Florida I'S.
Botner Land Design, Inc., et al., filed in the Twentieth Judicial Circuit in and for Collier
County, Florida, Case No. 02-1923-CA for $99,500.00.
OBJECTIVE: For the Board of County Commissioners to approve settlement, whereupon the
County will accept $99,500.00 as full settlement in the lawsllit entitled Collier County, Florida
VS. Botner Land Design, Inc., et aI., recovering for claims ofhreach of contract and professional
negligence relating to the landscape architect's design and contract administration on three
projects.
-
CONSIDERATIONS: On May 24, 2002 Collier County filed suit against Botner Land Design,
Inc., a Florida Corporation, George Botner, ASIA, Landscape Architect, (hereinafter "Botner")
and Central Florida Landscaping of Tampa, Inc., nlk/a Central Florida Landscaping, Inc. The
claim against Botner was basically that he committed breach of contract and professional
negligence as both the design professional and contract administrator for three projects. The
projects were Davis Boulevard, Phase II, Bayshore Boulevard Streetscape Project, (hereinafter
"Bayshore"), and USAl North median landscape, (hereinafter "USAI North Median Project").
The allegations against Central Florida Landscaping are dirccted to actions in the Davis
Boulevard Project only and are for breach of contract dealing with the installation of an irrigation
system.
Prior to service upon defendant, Central Florida Landscaping, Central Florida Landscaping had
filed for bankruptcy. Thus, the hankruptcy of Central Florida Landscaping stayed any action
against it pending the outcome of the hankruptcy. Ultimately, Central Florida Landscaping was
determined to be bankrupt and the claim against them was dismissed hy the Court.
-
After service was affected against Botner, his professional negligence carrier, who insured
Botner for professional negligence in accordance with the terms of Botner's agreement with the
County, filed for hankruptcy. To emphasize, Botner did not file for bankruptcy but the insurance
company that he paid a premium to provide professional ncgligence insurance filcd for
bankruptcy. As a result of this bankruptcy, the cntire litigation was stayed by the Bankruptcy
Court in Pennsylvania pending the outcome of the insurance company bankruptcy. Ultimately,
the insurance company was declared bankrupt and the Florida Insurance Guarantee Association,
(hereinafter "FIGA"), stood in the place of the insurancc company. FIGA then assumed
representation of Botner. Under Florida law, FIGA's extent of liability was substantially less
than the insurance company for Botner and at its maximum amount available would be
$300,000.00, if all claims were proven and the matter went to trial. The FIGA $300,000.00 limit
was not for damages only bllt also includcd all costs incUlTed in taking the matter to trial. In
other words, the FIGA attorney and all expert fees and all costs for depositions and discovery
would come off the $300,000.00 limit. In fact, without any meaningful discovery being
conducted, other than the exchange of interrogatories and requests to produce and document
inspection, the al110lmt available has already been reduced by S40,000.OO at the time of the
proposed settlement.
f"genda :rc::::r,i ~'Jo. ~_~K2
fVi3,c.n 10, .:::::uU9
2 of 9
On June 20, 2008, I forwarded a demand package to the attorney for Botner which was a dctailed
outline of what the County felt were appropriatc damages and the liability of Botner. The mattcr
was taken under consideration by Botner and his attorney whieh required an in depth review.
On or about February 18, 2009, the attorney for Botner and I agreed to a settlement in the
amount of $99,500.00 for all claims, subject to Board approval.
I believe that this settlement is reasonable and cost effective under all the circumstances. In
order to take this matter to trial, the County would have to incur somewhere between $ I 0,000.00
and $20,000.00 in deposition costs alone. Moreover, the County would have had to retain at
least one if not two experts in the field and could anticipate their costs in reviewing the numerous
files involved to be somewhere between $30,000.00 and $60,000.00 excluding the costs of trial.
Even more telling would be the fact that Botner's attorney would also have to conduct discovery
as well as retain an expert or experts and I can state that their costs would have been well in
excess of the County's when you factor in legal fees since all costs incurred by FIGA would be
deducted fi'om the sum remaining.
Based upon the above, the age of these claims, the protracted bankruptcy stay and the total
monies available, the County Attorney recommends that this mattcr bc settled for the sum of
$99,500.00.
FISCAL IMPACT: The settlement offer amounts to $99,500.00, which will be revenue
deposited into Fund 112-163652-600761-369130.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item.
LEGAL CONSIDERATIONS: Both the County Attorney and the Transportation
Administrator opine that settlement in the sum of $99,500.00 for the County's claims is
reasonable and cost effcctivc under all the circumstances outlined. This itcm is not quasi
judicial, and as such cx partc disclosurc is not required. This item requires majority vote only.
This item is legally sufficient for Board Action. Approvcd: JWH, Litigation Section Chief
RECOMMENDATION: That the Board of County Conm1issioners approve settlement in the
amount of $99,500.00 and authorize the Chairman of the Board of County Commissioners to
execute all necessary documents.
PREPARED BY: Jacqueline Williams Hubbard, Litigation Section Chief
02-1923-CA'1170
2
Item Number:
Item Summary:
Meeting Date:
Page 1 of I
AgencJa Item No. '16K2
rv~arch 10. 2009
Page:; of 9
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
1GK2
Recommendation to applove settlement in the lawsuit entitled Collier County Florida vs.
Botner Land Design. Inc" et al., filed in the Twentieth Judicial Circuit in and for Collier
County, Florida, Case No 02-1923-CA for $99.500,00.
3/10/2009900:00 AM
Prepared By
Jacqueline W. Hubbard
County Attorney
Assistant County Attorney
Date
County Attorney Office
2/25/200911:48:44 AM
Appro\-'Cd By
Pamela J. Lulich
Transportation Services
Proj~ct Manager
Date
Alternative T,ansportation Modes
2/26/20099:49 AM
Approved By
Jacqueline W. Hubbard
County Attorney
Assistant County Attorney
Date
County Attorney Office
2'26/2009 12:08 PM
Apprond By
Michelle Edwards Arnold
Transportation Services
Alternative Transportation Modes
Director
Date
Alterniltive Tr<lospor;ation Mod(;s
2,'26:'20(193:11 PM
Approved B)-'
Kelsey Ward
Administrative Services
Contract Administration Manager
Date
Purchasing
2,'25/:0093:39 PM
Apprond By
Norm E. Feder, AiCP
Transportation Services
Transportation Division Administrator
Date
Transportation Services Admin.
2126/2009 4:43 PM
Approved By
Jeff Klatzkow
County Attorney
Assistant County A.ttomey
Dz:te
County Attorney Office
2/26/2Q09 5:18 PM
A pproved By
OMS Coordinator
County Manager's Office
OMB Coordi;wtor
Date
Office of Management & Budget
2/27!2009 9:42 AM
Approved By
Mark iSaCF-.S0!l
County Manager's Office
3udgel p-.nuiy,;;t
Date
Office of Management & Budget
3;'2/20092:17 PM
..\ pprovcd B)'
Jar"'es V. Mudd
Bo.::rd of County
Commissioners
CQun~y ~,~Z:1B;:2r
:J:::tc
County Manager's Office
3!2!2009 5:58 PM
1,1",.lIr.\ ^ n"'....rl"T"',,1'\ I:'v....,-"'1'\ 1" t\tf.--...,--.I~o/_ ,n 1 n 0/_ ,n,nno\ 1 h o/~ ,nrr\~I~i='l\TTO/" ,n ^ nl:'l\lf"\ ^ \ 1
~ 1_1/,nno
AGenda l~ei11 ~Jo. "I i31<2
J r"~arch i 0 2009
P3:J8 4 ()f 9
SETTL.EMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter
referred to as the "Agreement and Release") is entered into and made on this
day of
, 2009 by and between Botner Land Design, Inc. and George
Botner, ASLA, a sole proprietor, licensed to do business in the State of Florida
(hereinafter referred to as "Botner") and Board of County Commissioners for Collier
County (hereinafter referred to as the "County").
WIT N E SSE T H:
WHEREAS, County filed a lawsuit against Botner in the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida, styled Board of County
Commissioners for Collier County v. Botner Land Design, Inc. and George Botner,
AS LA, a sole proprietor, licensed to do business in the State of Florida; Case No. 02-
1923-CA (hereinafter referred to as the "Lawsuit"); and,
WHEREAS, County and Botner, without either of them admitting any liability or
fault, desire to settle the Lawsuit and any and al/ disputes that arise from, relate or refer
in any way, whether directly or indirectly, to the incidents described or allegations made
in the Complaint filed in the Law5uit; and,
WHEREAS, County and Botner desire to reduce their settlement to a writing so
that it shall be binding upon them as well as their respective owners, principals, elected
,!:\.'Jenda item No. 16K2
March 10. 2009
Page 5 of 9
officials, officers, employees, ex-employees, agents, attorneys, representatives,
insurers, spouses, successors, assigns, heirs and affiliates.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
consideration set forth in this Agreement and Release, and with the intent to be legally
bound, County and Botner agree as follows:
1. County and Botner adopt and incorporate the foregoing recitals,
sometimes referred to as 'Whereas Clauses", by reference into this Agreement and
Release.
2. In consideration of the resolution of all disputes or claims arising from or
referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and
in consideration of the sum of Ninety Nine Thousand Five Hundred Dollars ($99,500.00)
and other valuable consideration, the receipt and adequacy of which is hereby
acknowledged by County, County agrees to dismiss the Lawsuit with prejudice.
3. In consideration of the resolution of the Lawsuit, and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged,
County, on its behalf, as well as on behalf of its elected officials, officers, employees,
ex-employees, attorneys, agents, representatives, insurers, successors and assigns
and affiliates hereby expressly releases and forever discharges Botner, as well as its
officers, employees, ex-employees, agents, attorneys, representatives, successors,
assigns, heirs, insurers and affiliates from any and all claims, demands, causes of
actions, damages, costs, attorney's fees, expenses and obligations of any kind or
nature whatsoever that he has asserted or could have asserted in the Lawsuit or that
.-
2
!\osnda !terr, No. "16K2
~ March 10. :009
?~}de 6 of 9
arise from or relate or refer in any way, whether directly or indirectly, to the Lawsuit or
any incident, event or allegation referred to or made in the Complaint in the Lawsuit.
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, County and Botner agree that either of them (as well as
any other persons or entities intended to be bound) shall, in the event of any breach,
retain the right to enforce the terms and conditions of this Agreement and Release.
5. County and Botner acknowledge and agree that this Agreement and
Release is intended to and shall be binding upon their respective owners, principals,
officials, officers, employees, ex-employees, agents, attorneys, representatives,
insurers, successors, assigns, spouses, heirs and affiliates.
6. County and Botner recognize and acknowledge that this Agreement and
Release memorializes and states a settlement of disputed claims and nothing in this
Agreement and Release shall be construed to be an admission of any kind, whether of
fault, liability, or of a particular policy or procedure, on the part of either County or
Botner.
7. County and Botner acknowledge and agree that this Agreement and
Release is the product of mutual negotiation and no doubtful or ambiguous language or
provision in this Agreement and Release is to be construed against any party based
upon a claim that the party drafted the ambiguous provision or language or that the
party was intended to be benefited by the ambiguous provision or language.
8. This Agreement and Release may be amended only by a written
instrument speCifically referring to this Agreement and Release and executed with the
same formalities as this Agreement and Release.
3
Aoenca I~em No. 16K2
~ March 10. 2009
Page 7 oi 9
9. In the event of an alleged breach of this Agreement and Release, County
and Botner agree that all underlying causes of action or claims of County have been
extinguished by this Agreement and Release and that the sole remedy for breach of this
Agreement and Release shall be for specific performance of its terms and conditions or
any damages arising from the breach. In this regard, County and Botner further agree
that the sole venue for any such action shall be in the Twentieth Judicial Circuit in and
for Collier County, Florida in Naples, Florida.
10. This Agreement and Release shall be governed by the laws of the State of
Florida.
IN WITNESS WHEREOF, County and Botner have signed and sealed this
Agreement and Release as set forth below.
Date:
Dale:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Deputy Clerk
Donna Fiala, Chairman
Date:
Botner Land Design, Inc.
Signature
Print Name
Print Title
4
i~genGa Item No. ~ 6K2
March 10 2009
?21ge 8 of 9
STATE OF
COUNlY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN COLLIER COUNlY
AND BOTNER LAND DESIGN, INC. WAS SWORN TO and subscribed
by . before me on this day of
2009,
Personally Known
or
Produced Identification
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Type of Identification Produced
Date:
Botner Land Design, Inc,
Signature
Print Name
Print Titie
STATE OF
COUNlY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN COLLIER
COUNTY AND GEORGE BOTNER, ASLA, a sole proprietor, licensed to do
business in the State of Florida WAS SWORN TO and subscribed
5
by
2009.
, before me on this
day of
Personally Known
or
Produced Identification
Signature of Notary Public
l\]enda Item ~~o. 16K2
March 10, 2009
Page 9 of 9
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Type of Identification Produced
Approved as to form and
legal sufficiency:
{iacqueline Williams Hubbard
Litigation Section Chief
- i
02-1923CAIII68
6