Agenda 10/27/2020 Item #16K 1 (Settlement Agreement & Mututal Release)10/27/2020
16. K.1
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chairman to execute a Settlement Agreement and
Mutual Release in the lawsuit styled Cara McElderry v. Collier County, et al. (Case No. 19-CA-2441),
now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County,
Florida, for the sum of $4,500.
OBJECTIVE: Recommendation to approve the settlement in the lawsuit filed by Cara McElderry for
the sum of $4,500 and authorize the Chairman to execute the Settlement Agreement and Mutual Release.
CONSIDERATIONS: This lawsuit arises out of an incident that occurred July 18, 2017, at Collier
County North Regional Park's Sun-N-Fun Lagoon, Naples, Florida. Plaintiff went down a water slide,
and at the bottom was hit by her husband who came down the slide behind her; Plaintiff suffered a
fractured rib. Plaintiff alleges that the County was negligent allowing her husband to follow too soon
down the slide.
The County commenced with settlement negotiations with the Plaintiff's counsel, and all parties have
agreed to a settlement amount of $4,500.00. The County Attorney and the Risk Management Director
recommend that the Board approve this settlement as reasonable. Should this case continue to trial
additional costs will be incurred that are expected to well exceed this amount.
FISCAL IMPACT: Funds are budgeted and available in Fun 516, Property & Casualty Insurance fund
and the total impact will be $4,500.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a majority
vote for approval. - CMG
RECOMMENDATION: For the Board of County Commissioners to approve and authorize the
Chairman to execute the Settlement Agreement for the total sum of $4,500 in the lawsuit styled Cara
McElderry v. Collier County, et. al. (Case No. 19-CA-2441), now pending in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida.
PREPARED BY: Colleen M. Greene, Assistant County Attorney
Kevin L. Noell, Attorney for Collier County
ATTACHMENT(S)
1. Settlement agreement-Mcelderry (PDF)
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16.K.1
10/27/2020
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1
Doe ID: 13920
Item Summary: Recommendation to approve and authorize the Chair to execute a Settlement
Agreement and Mutual Release in the lawsuit styled Cara McElderry v. Collier County, et al. (Case No.
19-CA-2441), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier
County, Florida, for the sum of $4,500.
Meeting Date: 10/27/2020
Prepared by:
Title: Legal Assistant — County Attorney's Office
Name: Rosa Villarreal
10/13/2020 11:03 AM
Submitted by:
Title: County Attorney — County Attorney's Office
Name: Jeffrey A. Klatzkow
10/13/2020 11:03 AM
Approved By:
Review:
Risk Management
County Attorney's Office
Office of Management and Budget
Budget and Management Office
County Attorney's Office
County Manager's Office
Board of County Commissioners
Jeff Walker
Additional Reviewer
Colleen Greene
Level 2 Attorney Review
Debra Windsor
Level 3 OMB Gatekeeper Review
Mark Isackson
Additional Reviewer
Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
Geoffrey Willig
Level 4 County Manager Review
MaryJo Brock
Meeting Pending
Completed
10/13/2020 11:17 AM
Completed
10/13/2020 12:16 PM
Completed
10/13/2020 12:36 PM
Completed
10/13/2020 3:30 PM
Completed
10/14/2020 2:10 PM
Completed
10/20/2020 9:12 AM
10/27/2020 9:00 AM
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement") is
entered into and made on this -7f-� day of ()rj:Qjnpj— , 2020, by and between CARA
MCELDERRY, (hereinafter referred to as "Plaintiff') and COLLIER COUNTY BOARD OF
COUNTY COMMISSIONERS, including all other entities named as Defendants in the Lawsuit,
(hereinafter referred to as the "County").
WITNESSETH:
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida, styled Cara McElderry v. Collier
County, et, al., Case No. 19-CA-2441 (hereinafter referred to as the "Lawsuit"); and
WHEREAS, PIaintiff and the County, without either parry admitting any liability or
fault, desires to settle the Lawsuit and any and all disputes that arise from, relate or refer in any
way, whether directly or indirectly, known or unknown, to the incidents described or allegations
made in the complaint filed in the Lawsuit; and,
WHEREAS, Plaintiff and the County desire to reduce the settlement to a writing so that
it shall be binding upon both parties' respective owners, principals, elected officials, officers,
employees, ex -employees, agents, attorneys, representatives, insurers, successors, assigns, heirs,
departments, agencies and affiliates.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
consideration set forth in this Agreement, and with the intent to be legally bound, Plaintiff and
County agree as follows:
Plaintiff and the County adopt and incorporate the foregoing recitals, sometimes
referred to as "Whereas Clauses", by reference into this Agreement.
[18-CA-2065i1476452111 1
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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 Four Thousand Five Hundred Dollars and 0/100 (S4,500.00) and
other valuable consideration, the receipt and adequacy of which is hereby acknowledged by
Plaintiff, Plaintiff 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, Plaintiff, on behalf of
herself, her attorneys, agents, representatives, insurers, heirs, successors and assigns, hereby
expressly releases and forever discharges the County, as well as its owners, principals, elected
officials, officers, employees, ex -employees, agents, attorneys, contractors, representatives,
successors, assigns, insurers, heirs, departments, agencies and affiliates, from any and all claims,
demands, causes of actions, damages, costs, liens, attorney's fees, expenses, medical bills and
obligations of any kind or nature whatsoever that she has asserted or could have asserted in the
Lawsuit or that arise from or relate or refer in any way, whether directly or indirectly, to the
Lawsuit or any incident, event or allegation referred to in the Complaint in the Lawsuit.
4. Notwithstanding anything that may be to the contrary in. Paragraph 3 of this
Agreement, Plaintiff and the County 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
term and conditions of this Agreement.
5. Plaintiff and the County acknowledge and agree that this Agreement is intended
to and shall be binding upon their respective owners, principals, elected officials, officers,
employees, ex -employees, agents, attorneys, representatives, insurers, successors, assigns, heirs,
and affiliates.
[ 1 S-CA-2065/ 1476452/ 11 2
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6. Plaintiff and the County recognize and acknowledge that this Agreement
memorializes and states a settlement of disputed claims and nothing in this Agreement 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 Plaintiff or the County.
7, Plaintiff and the County acknowledge and agree that this Agreement is the
product of mutual negotiation and no doubtful or ambiguous language or provision in this
Agreement 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 may be amended only by a written instrument specifically
referring to this Agreement and executed with the same formalities as this Agreement.
9. In the event of an alleged breach of this Agreement, Plaintiff and the County
agree that all underlying causes of action or claims of Plaintiff has been extinguished by this
Agreement and that the sole remedy for breach of this Agreement shall be for specific
performance of the terms and conditions of this Agreement. In this regard, Plaintiff and the
County 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 shall be governed by the laws of the State of Florida.
11, Plaintiff shall be solely responsible for payment and satisfaction of all liens,
medical bills, and all other expenses, costs, debts, or losses arising out of, or anyway connected
to, injuries and/or damages suffered from the incident described in the Lawsuit which have been
or could have been brought in the Lawsuit, including but not limited to any attorney fees
incurred in the subject Lawsuit.
IN WITNESS WHEREOF, Plaintiff and the County have signed and sealed this
Agreement and Release as set forth below.
By:
[18-CA-- 2065/1476452/11 a
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Cara. McElderry, plaintiff
STATE OF 1- i LFYNS
COUNTY OF 1!5
Sworn to (or affirmed) and subscribed before me this 7+h day of 0�6er , 2020, by
co"A lair, L- 14er , who is (,"') personally known to in or, ( ) produced
s identification.
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AS TO COUNTY:
ATTEST:
CRYSTAL K. KINZEL, Clerk
Date:
Approved as to form and legality
Colleen M. Greene
Assistant County Attorney
[ 18-CA-2Q65/1476452/1 ]
2
(Signatu e of Notary Public - State off T"CA
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(Print, Type, or Stamp
Commissioned Name of NotaryPublic)
Commission Expires Uajoi I av
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Burt L. Saunders, Chairman
Date;
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