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HomeMy WebLinkAboutItem V(A) Proposed Settlement Agreement and Release: Ronald L Stucki and Discount Deals Inc vs City of Ocoee and Russell B Wagner AGENDA 8-16-94 Item V A FOLEY & LARDNER III NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801 TELEPHONE 14071 423-7656 FACSIMILE 14071 648-1743 TAMPA, FLORIDA MAILING ADDRESS MILWAUKEE, WISCONSIN JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON. WISCONSIN TALLAHASSEE, FLORIDA WASHINGTON. D.C. WEST PALM BEACH, FLORIDA ORLANDO. FL. 32802-2193 ANNAPOLIS, MARYLAND CHICAGO. ILLINOIS MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney g,,/ DATE: August 10, 1994 l RE: Proposed Settlement Agreement and Release: Ronald L. Stucki and Discount Deals, Inc. vs. City of Ocoee and Russell B. Wagner Attached hereto is a proposed Settlement Agreement and Release between Ronald L. Stucki and Discount Deals, Inc. ("Plaintiffs") and the City of Ocoee and Russell B. Wagner ("Defendants") . Pursuant to Section 164 . 106, Florida Statutes, an advertised public hearing regarding the proposed Settlement Agreement and Release has been placed on the agenda for the City Commission meeting of August 16, 1994 . City Commission action is required because the proposed agreement includes a release of certain claims which the City may have against Mr. Stucki and/or Discount Deals, Inc. By way of background, the Plaintiffs brought a lawsuit against the City and Russell B. Wagner in December 1989. Notification of the lawsuit was given to the Florida League of Cities and Republic Insurance Company, the insurers of the City. The Florida League of Cities retained the law firm of Dean, Ringers, Morgan & Lawton to represent the City and has paid all of their legal fees in connection with the litigation. Republic Insurance Company initially retained Foley & Lardner to represent the City. In December 1992 Republic Insurance Company retained the law firm of Taraska, Grower, Unger & Ketchum to represent the City as substitute counsel for Foley & Lardner and has paid all legal fees incurred by Taraska, Grower. Since that time, Foley & Lardner's role has been limited to monitoring the activities of the law firms retained by the insurance carriers and coordinating communication with the City. Due to a policy deductible, the City paid a total of $25, 000 in fees and costs to Foley & Lardner in connection with The Honorable Mayor and City Commissioners of the City of Ocoee August 10, 1994 Page 2 the defense of this case and has paid the cost of monitoring the litigation since Taraska, Grower was retained by Republic Insurance. The law firms of Dean, Ringers and Taraska, Grower, as legal counsel for the City, have negotiated the proposed Settlement Agreement and Release with the Plaintiffs. The City Attorney has reviewed various drafts of the Settlement Agreement and has provided comments and input. Dean, Ringers and Taraska, Grower have recommended that the City approve the proposed Settlement Agreement and Release. The City Attorney concurs in their recommendation. In that the City has fully exhausted its deductible in this matter, the City will not be called upon to participate in the funding of the recommended settlement. The highlights of the proposed Settlement Agreement and Release are as follows: (1) The Plaintiffs will receive a total settlement payment of $25, 000 which will be funded one-half by each insurance carrier. (2) The payment to the Plaintiffs is not considered an admission by the City and no past or present wrong doing on the part of the City is implied by such payment or negotiations. (3) The Plaintiffs and Defendants are executing mutual general releases. The release by the City specifically provides that it shall not be construed as a release with respect to any violations of law (including municipal ordinances) which are unrelated to the subject of the litigation or which may arise in the future as a result of any acts of the Plaintiffs subsequent to the settlement. This specific provision was added at the request of the City Attorney. (4) Concurrent with the execution of the Settlement Agreement and Release, legal counsel for the Plaintiffs will deliver a dismissal, with prejudice, of the litigation. This will be filed with the Circuit Court and the case will be dismissed. The Honorable Mayor and City Commissioners of the City of Ocoee August 10, 1994 Page 3 Essentially, the insurance carriers have determined that the cost of the settlement will be less than the legal fees and costs which would be incurred in continuing a defense of the lawsuit. For your information, attached hereto is a summary of the initial complaint as prepared by Sewell, Todd & Broxton, Inc. in January 1990. While there were subsequent amendments to the Complaint, I believe that this remains a fair summary of the allegations. Due to the complexity of the allegations and the voluminous files, I am not attempting to provide a more detailed summary. However, if you require any additional information, your legal counsel retained by the insurance carriers will be present at the City Commission meeting to respond to your inquiries. RECOMMENDATION: It respectfully is recommended that the City Commission approve the proposed Settlement Agreement and Release between Ronald L. Stucki and Discount Deals, Inc. (Plaintiffs) and the City of Ocoee and Russell B. Wagner (Defendants) in Case No. CI 89-9604 and authorize execution thereof by the Mayor and City Clerk. PER:dh Enclosure cc: Douglas T. Noah, Esq. (w/enc. ) Jeanelle Bronson, Esq. (w/enc. ) Ms. Peggy Psaledakis (w/enc. ) C:\WP51\DOCS\OCOE\MEMOS\PERDDH08.10218/10/941 DEBBIEH I PER:dh x s SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE is made and entered into this ,/_ day of `17- ()- , 1994, by RONALD L. STUCKI and DISCOUNT DEALS, INC. , a Florida corporation, (hereinafter collectively "Plaintiffs") , and the CITY OF OCOEE, a Florida municipal corporation and RUSSELL B. WAGNER (hereinafter collectively "the Defendants") . RECITALS A. On or about the 13th day of December, 1989, Plaintiffs filed a Complaint and subsequently amended said Complaint on two occasions (the Complaint and any amendments thereto are hereinafter referred to as the "Complaint") in the Circuit Court, in and for Orange County, Florida, bearing Case Number CI 89-9604, which Complaint arose out of certain alleged acts or omissions of the Defendants by and through their agents and employees. B. THE FLORIDA LEAGUE OF CITIES and THE REPUBLIC INSURANCE COMPANY (hereinafter collectively the "Insurers" ) , are liability insurers of the Defendants, and as such, may be obligated to pay any final judgment obtained against Defendants which is covered by their policies of liability insurance. C. The parties desire to enter into this Settlement Agreement and Release in order to provide for payment in full settlement and discharge of all claims which are the subject of the Complaint and related documents and proceedings upon the terms and conditions set forth herein. AGREEMENT The parties hereto agree as follows: V t 1. Release and Discharge. Plaintiffs and Defendants hereby mutually covenant and agree to completely release and forever discharge the other; and Plaintiffs further agree to completely release and forever discharge the Insurers; and Plaintiffs and Defendants agree to discharge the others past, present, and future elected officials, officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns, and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated, of and from any and all past, present, or future claims, demands, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on or arising from the Constitution of the United States, or the Florida State Constitution, and federal or state law claims, or tort, contract, civil rights action or other theory of recovery, and whether for compensatory, or punitive damages or for attorney fees or legal costs and expenses which they now have or which may hereafter accrue or otherwise be acquired on account of, or in any way growing out of, the Complaint (and all related documents and proceedings thereto) , including, without limitation, any and all known or unknown claims which have resulted or/may result from any acts or omissions alleged in the Complaint, and for any matter from the beginning of time to the date of this Agreement in anyway related, directly or indirectly, to the subjects of the Complaint (and all related documents and proceedings thereto) . This Release on the part of Plaintiff and 2 r i Defendants shall be fully binding and considered a complete settlement between Plaintiffs, Defendants, and the Insurers, and all parties represented by or claiming through Plaintiffs and Defendants. Nothing contained herein shall be construed as a release of Plaintiffs by the City of Ocoee with respect to any violations of law (including but not limited to municipal ordinances of the City of Ocoee) which are unrelated to the subject of the Complaint (and all related documents and proceedings thereto) or which may arise in the future as a result of any acts or omissions by Plaintiffs subsequent to the date of this Settlement Agreement. 2. Payment. In further consideration of the release set forth above, the Insurers, on behalf of the Defendants, hereby each agree to pay to STUCKI the sum of TWELVE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($12,500.00) , for a total settlement payment of TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) upon execution of this Settlement Agreement and Release. Payment shall be in the form of a check made payable to Discount Deals, Inc. and Ronald L. Stucki, or to Ronald L. Stucki and his attorney-of-record, Michael D. Jones, which payment shall be deemed sufficient consideration to make this Agreement binding upon and for the benefit of all parties reX'erred to herein. 3. Attorneys' Fees. Each party hereto shall bear all attorneys' fees and costs arising from the actions of its own counsel in connection with the Complaint and related documents and proceedings, this Settlement Agreement and Release, and the matters 3 and documents referred to herein, the filing of a dismissal of the Complaint and all related matters. 4. General Release. Plaintiffs and Defendants hereby acknowledge and agree that the release set forth in Section 1 hereof is a general release. Plaintiffs and Defendants further expressly waive and assume the risk of any and all claims for damages which exist as of this date, but which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise, and which, if known, would materially affect his decision to enter into this Settlement Agreement and Release. Plaintiffs further agree that they have accepted payment of the sum specified herein as a complete compromise of matters involving disputed issues of law and fact between Plaintiffs and Defendants and its agents and employees and the Insurers, and they fully assume the risk that the facts or law may be otherwise than he believes. 5. Delivery of Dismissal With Prejudice. Concurrently with the execution of this Settlement Agreement and Release, counsel for Plaintiffs shall deliver to counsel for Defendants, an executed dismissal, with prejudice, of the civil action described in Recital "A" above. Plaintiffs have authorized their attorney to execute this dismissal, on their behalf, and hereby authorize Defendants' counsel to file said dismissal with the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, and have it entered as a matter of record. 4 6. Warranty of Capacity to Execute Agreement. Plaintiffs do hereby represent and warrant that no other person or entity has or has had interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement and Release; that he has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that he has not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. 7. Disclaimer of Liability. Plaintiffs agree and acknowledge that they accept payment of the sums specified in this Settlement Agreement and Release as a full and complete compromise of matters involving disputed issues between the parties; that neither payment of the sums by the Defendants or their Insurers, or their attorneys or representatives, shall be considered admissions by any of said parties; and that no past or present wrongdoing on the part of Defendants shall be implied by such payments or negotiations. 8. Entire Agreement; Successors in Interest. This Settlement Agreement contains the entire agreement between Plaintiffs, Defendants and Defendants ' Insurers with regard to the matters set forth in it, and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. No other matters, issues, or agreements exist between Plaintiffs, Defendants and/or Defendant 's insurers which are not expressly set forth herein. 5 • r 9. Construction by Florida Law. This Settlement Agreement and Release is entered into in the State of Florida and shall be construed and interpreted in accordance with its laws. 10. Representation of Comprehension of Document. In entering into this Settlement Agreement and Release, Plaintiffs represent that they have relied upon the legal advice of their attorney, who is the attorney of his own choice, that the terms of this Settlement Agreement and Release have been completely read and explained to them by their attorney, and that those terms are fully understood and voluntarily accepted by them. 11. Additional Documents. Plaintiffs agree to cooperate fully, execute any and all supplementary documents, and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement and Release. 12. Effectiveness. This Settlement Agreement and Release shall become effective immediately following execution by the parties. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed as of the ,2/ ' day of :- y 0 eit 1994. Sighed, sealed and delivered in he presence of: .P414 `ef4"4-2a ��- L RONALD L. S�+UCKI kILILL TATE OF FLORIDA / PAT DAHLSTROM JUNTY OF ORANGE Notary Public. State of Florida The foregoing instrument was acknowledged My comm expires line 23, 1995 before me this June 21 , 1994 by Ronald Comm. No. C0120642 Stucki, who is personally known to m% and who did not take an oath ■ r Ack.--5 -4/014.1., STATE OF FLORIDA COUNTY OF ORANGE PAT DAHLSTROM The foregoing instrument was acknowled . Notary Public, State of Florida before me this June 21 , 1994 by Ronald My comm. expires June 23, 1995 Stucki , who is personally known to me Comm. No. CC120642 who did not take an oath. DISCOUNT DEALS, INC. 6", ; ja.d., BY: /' -11440-1-17- ��Ronald Stucki Di (CORPORATE SEAL) RUSSELL B. WAGNER CITY OF OCOEE, FLORIDA BY: S. Scott Vandergrift, Mayor Executed on: , 1994 Attest: Jean Grafton, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON 1994 LEGALITY this day of UNDER AGENDA ITEM NO. , 1994. DEAN, RINGERS, MORGAN & LAWTON, P.A. By: Attorney TAPJSKA, GROWER, UNGER & KETCHAM, P.A. By: Attorney 7 •+ STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared S. SCOTT VANDERGRIFT and JEAN GRAFTON, personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE and that they severally acknowledged executing the same freely and voluntarily under authority duly vested in them by said municipality. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1994. Signature of Notary Name of Notary (Typed, printed or stamped) Commission Number (If not legible on seal) My Commission expires: (If not legible on seal) 8 Sewell, Todd & Broxton, Inc. Independent Adjusters For Insurance Companies and Self-Insureds ADMINISTRATIVE January 11 , 1990 Reply To: 280 W. Canton Avenue, Suite 310 DQE' Winter Park, Florida 32789 TALLAHASSEE,FL (407)740-0501 1904)681.2315 FAX(904)224-5359 CLEARWATER City o f Ocoee (8131535.6747 150 Lake Shore Drive FT.LAUDERDALE Ocoee, FL 32761 1305)486-2431 FAX(305)731.2470 Attention: Ivan Poston, Finance Director FT.MYERS 18131 939-3545 FAX(813)939.3504 Re: Our Member : City of Ocoee GAINESVILLE Our File : 81000-047 19X)376.6474 FAX(904)371-9232 ,Claimant : Ronald L. Stucki/Discount Deals, Inc. JACKSONVILLE (904)731.0444 Dear N . Poston: FAX(904)731-8945 LAKELAND As we agreed in our telephone conference of January 11 , 1989, OM) (81)64e FAX5739 we have retained Mr. Dale Morgan of the law firm of Dean, MELBOURNE Ringers , Morgan and Lawton to defend the City of Ocoee in (407)723.5252 the suit brought by Ronald L. Stucki and Discount Deals, Inc. FAX(407)725.2085 We will be responsible for the payment of Mr. Morgan' s MIAMI fees as well as cost of defense. (305)944.6336 FAX(305)947.7420 OCALA Plaintiff has alleged under Count I that the action arises (904)8544955 under the Fifth and Fourteenth Amendments to the Constitution FAX(9X)es486so of the United States and under Title 42 of the United States ORRLLA D40662 Code, Section 1983 and 1988 as result of the City and FAX(407)629-0225 certain of its employees unjustifiably becoming involved in PANAMA CITY and impairing the negotiations and contract between Stucki (904)785-0601 and Southland Corporation in that they knowingly and/or FAX(904)785-7908 intentionally gave the Southland Corporation incorrect PENSACOLA information about- the developability of the property and (904)432-3409 P Y P P Y FAX(904)433.5625 stated to the Southland Corporation that the property had SARASOTA little, if any, developable land and that Wagner and/or other (6'3)746.0407 city employees further knowingly and intentionally misrepre- FAX(813)722-5033 ST.PETERSBURG sented to the Southland Corporation that substantial portions (813)535.6747 of the property would have to be dedicated to the city as TALLAHASSEE right-of-way prior to development and that other and further (904)222.5617 land requirements relating to the property would be required FAX(9X)224.5359. prior to development. It is further alleged that the city TAMPA and Wagner ' s interference with the prospective contractual (813)286.1607 FAX(813)286-8195 relationship damaged Stucki in his negotiations for the WEST PALM BEACH sale of the property because the purchase price that Southland (407)9673332 Corporation paid was greatly reduced below the fair value FAX(407)964.9909 of the property and below the value that Southland Corporation would have paid the city had the city refrained from giving REPORT NO. incorrect and unjustifiable information concerning the development of the property. In Count II , it ' s alleged that -- • the acts of the city and Wagner were done intentionally, `") Reservation of Rights Stucki/Ocoee Page -2- without just cause or justification, with the knowledge of prospective contractual relationship between Stucki and Southland solely for the purpose of interfering with that contractual ' relationship. Under Count III , it ' s alleged that by reason of Wagner ' s misrepresentations , Stucki was forced to sell the property for a greatly reduced value, and has suffered damages in excess of $5 ,000. Count. IV alleges that in 1981 , Discount Deals, Inc . and Cardinal Industries submitted a written proposal to the city involving the construction of a motel on the property and, pursuant to that proposal , Stucki applied to the city for approval of a motel on the property, which is and was zoned C-2. At the time of Stucki ' s submission of the proposal , the C-2 zoning for the property would have permitted the construction of a motel . Subsequently, the city passed an ordinance which provided that motels could only be constructed on property with a C-3 zoning classification and that said ordinance was enacted without cause or justification and solely to prevent Discount Deals from constructing a motel on the property thereby causing the prospective contractual relationsip between Discount Deals , Inc. and Cardinal Industries to be impaired and impossible to fufill . Under Count V, it ' s alleged that the acts of the city were done intentionally without cause or justification and with knowledge of the prospective contractual relationship between Discount Deals, Inc. and Cardinal Industries and solely for the purpose of interferring with that contractual relationship. In Count VI, it ' s alleged that Stucki attempted to sell a 100x800 foot strip of property fronting on Bluford Avenue just north of the property described in the suit to prospective purchasers, including, but not limited to, Popeye ' s Chicken, Inc. and Southland Corporation and that Wagner knew of the desire to sell said property and without cause or justification, falsely represented to prospective buyers that said strip of property was not buildable or developable. In Count VII, it ' s alleged that as a result of Wagner misrepresentation, Stucki was forced to sell the property for a greatly reduced value and Count VII alleges that the acts of the defendants were done intentionally, without cause or justification, and knowledge of advantageous prospective contractual relationship between Stucki and the aforesaid prospective purchaser solely for the purpose of interferring with these contractual relationships . Count IX alleges that the city has discriminated against Discount Deals , Inc. by attempting to force unwarranted and inapplicable Ocoee City Code provisions and that Discount Deals , Inc. was singled out and cited by the city for certain Reservation of Rights Stucki/Ocoee Page -3- code violations regarding allegedly uncut grass on the . property and that these actions were done without cause and justification and not to other simularly situated properties and were done solely to harass Discount Deals , Inc. and interfere with its enjoyment and use of its property. Count X alleges that commencing in or around 1980 or 1981 , the city diverted, caused to be diverted -or allowed the diversion of drainage from other properties in the city onto, over and across that portion of property described in Exhibit "D" which lies south of Story Road and, thereafter, on various dates, the city entered upon the plaintiff' s land and caused various improvements to be made upon that land for the purpose of using the plaintiff' s land as part of the city' s drainage system and that the city' s actions have caused drainage across plaintiff' s property to such an extent that plaintiff' s were permanently deprived of all reasonable, beneficial and economically viable use of the portions of their property which had been ditched or otherwise altered by the city for drainage purposes. It is alleged that foregoing actions of city display a purposeful and intentional pattern of discrimination against the plaintiffs . Further, there appears to be various dates referred to in the Complaint so it is unclear at this point as to the date of occurrence to which the alleged violations refer. As you are aware, the coverage through the League of Cities did not become effective for the City of Ocoee until October 1 , 1986. Therefore, for all the above reasons, we must reserve our rights as to any coverage defenses . Further research will be done with reference to the date of the occurrence . Notwithstanding this reservation of rights , all defenses which are available to you in the opinion of defense counsel will be vigorously asserted on your behalf. We are presently investigating the dates of the occurrences and the other allegations of the plaintiff and will continue to keep you advised of developments . Please keep us apprised of any developments at your end. If you have any questions or need additional information, please feel free to contact me. Very truly yours, )aL,e., 3r7:32 Kenneth R. Hakanson Division Manager KRH/ld cc: Scott Kirk, Esquire