Loading...
2004-25486 ResoRESOLUTION NO. 2004-25486 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, RATIFYING A SETTLEMENT OF THE TORT CLAIM STYLED CLAUDE TUNC AND MARTINE TUNC, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF STEPHANIE TUNC, DECEASED AND SANDRINE TUNC V. CITY OF MIAMI BEACH, 11TH JUDICIAL CIRCUIT COURT CASE NO. 03-21813 CA 20, AND WILL PAY $200,000.00, LESS MONIES ALREADY PAID, FROM THE CITY'S RISK MANAGEMENT FUND PURSUANT TO FLORIDA STATUTE §768.28; AND WILL COOPERATE WITH PLAINTIFF IN THE APPLICATION FOR A CLAIMS BILL IN THE AMOUNT OF $1,300,000.00 TO THE FLORIDA LEGISLATURE; AND WILL PAY SAID AMOUNT UPON PASSAGE AS LAW BY THE LEGISLATURE; AND FURTHER AUTHORIZING THE EXECUTION BY THE OFFICE OF THE CITY MANAGER AND CITY ATTORNEY OF ANY AND ALL DOCUMENTS RELATED TO THE SETTLEMENT. WHEREAS, on October 23, 2003, the City was served with a lawsuit pursuant to Florida Statute §768.28 alleging that on February 22, 2003, a City police officer negligently operated a police vehicle on the soft sand at Miami Beach and caused same to run over and kill Stephanie Tunc and severely injure Sandrine Tunc both of whom were lying on the beach sunbathing, and Sandrine Tunc was caused to suffer multiple fractures, a crushed liver, mental anguish, psychological injuries, lost wages, and medical expenses for which she seeks damages and costs under the Florida Waiver of Sovereign Immunity Statute; and WHEREAS, subject t o t he terms s et forth herein ("Settlement Agreement and " he City, without admission of liability, Stipulation for Consent Judgment ),t plaintiffs and the have agreed to resolve any and all claims and disputes by and between them; NOW, THEREFORE, BE IT DULY RESOLVED BYTHE MAYORAND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City commission herein ratify a settlement of the claim styled Claude Tunc and Martine Tunc, Individually, and as Personal Representative of the Estate of Stephanie Tunc, deceased and Sandrine Tunc v. City of Miami Beach, for which the City will pay $200,000.00 less monies already paid from the City's Risk Management Fund; and $1,300,000.00 or any lesser amount ordered by the Legislature; and further ratify the execution of any and all related documents by the City Manager and City Attorney's office. PASSED and ADOPTED this 4th day of ~uar 2004. CITY CLERK APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Attorn~ Date SETTLEMENT AGREEMENT AND STIPULATION FOR CONSENT JUDGMENT THIS AGREEMENT is entered into between CLAUDE TUNC and MARTINE TUNC, individually, and as Personal Representative of the Estate of Stephanie Tunc, deceased and SANDRINE TUNC, and the CITY OF MIAMI BEACH, as follows: WHEREAS, Plaintiffs, CLAUDE TUNC and MARTINE TUNC, individually, and as Personal Representative of the Estate of Stephanie Tunc, deceased and SANDRINE TUNC, (hereafter collectively "Plaintiffs") sued Defendant the CITY OF MIAMI BEACH (hereafter the "City") in Circuit Court Case No. 03-20813 CA 20 (hereinafter "lawsuit"), now pending in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, arising out of an incident that occurred on or about February 22, 2003, wherein SANDRINE TUNC, sustained severe injuries and STEPHANIE TUNC was killed, and WHEREAS, Plaintiffs have asserted in this litigation that the City was negligent in regard to said incident; and WHEREAS, the City has denied any liability for this incident and it is agreed that this settlement does not represent an admission of fault by the City, but rather is the resolution of a disputed claim; and WHEREAS, Plaintiffs and the City acknowledge that this settlement does not purport to fully compensate Plaintiffs for all their damages, but rather is a compromise settlement of the claims they may have against the City; and WHEREAS, the City is protected under the sovereign immunity laws of the State of Florida for any liability it may have in the aforementioned lawsuit for any judgment in excess of the sovereign immunity liability cap on damages; and Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment WHEREAS, Plaintiffs, CLAUDE TUNC and MARTINE TUNC, individually, and as Personal Representative of the Estate of Stephanie Tunc, deceased and SANDRINE TUNC, requires significant medical and psychological care and treatment for the remainder of her life as a result of the injuries she received in the incident of February 22, 2003 and whereas Stephanie Tunc was killed; and WHEREAS, Plaintiffs and the City acknowledge that the potential jury verdict in this case could be in excess of the settlement amount and that it is reasonable for the City to fix its maximum exposure for the claims in this matter; and WHEREAS, the City desires to limit its exposure to a judgment that may be rendered against it and in favor of Plaintiffs in excess of the amount referenced herein; and WHEREAS, Plaintiffs desire to limit their exposure to a judgment that may be rendered against them and in favor of the City; and WHEREAS, the parties hereto acknowledge that it is in the best interest of Plaintiffs and the City to settle the dispute between them so that Plaintiffs receive some compensation for Stephanie Tunc's death and Sandrine Tune's injuries and past and future medical care expenses, while at the same time minimizing the City's monetary exposure; and WHEREAS, the City agrees to pay and Plaintiffs agree to accept a total of $1,500.000.00 as a compromise settlement of any and all claims against the City in the lawsuit and/or arising out of the incident that occurred on February 22, 2003; and WHEREAS, as City agrees to submit to a Consent Judgment for One Million Five Hundred Thousand Dollars ($1,500.000.00), of which the City shall pay Plaintiffs its sovereign immunity cap in the amount of Two Hundred Thousand Dollars ($200,000.00) less monies already paid to Plaintiffs within ten (10) business days of the execution of this Settlement Page 2 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment Agreement and Stipulation for Consent Judgment. After the City has paid its sovereign immunity cap of $200,000.00 to Plaintiffs, the only indebtedness that shall remain collectible against the City under the Consent Judgment entered in the lawsuit is One Million Three Hundred Thousand Dollars ($1,300,000.00); and WHEREAS, the payment of the remainder of the Consent Judgment, One Million Three Hundred Thousand Dollars ($1,300,000.00) is conditioned upon the passage of a claim bill by the Legislature of the State of Florida in the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00), or any other amount, in favor of Plaintiffs; and WHEREAS, Plaintiffs wish to apply to the Legislature of the State of Florida for the passage of a claims bill allowing and/or directing the City to pay to Plaintiffs the remainder of the Consent Judgment in the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00) (hereinafter referred to as "Plaintiffs' claim bill") in compromise settlement of any and all claims against the City arising out of or relating to this lawsuit; and WHEREAS, Plaintiffs shall have the sole responsibility of drafting and filing Plaintiffs' claims bill application and other appropriate documents as necessary for filing with the Legislature of the State of Florida, and the City shall provide to Plaintiffs any and all pertinent requested documents or information within its custody or control within a reasonable time; and WHEREAS, the City agrees not to oppose Plaintiffs in their applications to the Legislature of the State of Florida for the passage of Plaintiffs' claims bill allowing and/or directing the City to pay the remainder amount of the Consent Judgment One Million Three Hundred Thousand Dollars ($1,300,000.00) in compromise settlement of any and all claims against the City arising our of or relating to the lawsuit and/or the incident on February 22, 2003; and Page 3 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment WHEREAS, the City agrees to affirmatively cooperate with Plaintiffs in their application to the Legislature of the State of Florida for the passage of Plaintiffs' claim bill allowing and/or directing t he City t o p ay t he remainder amount o f t he Consent Judgment, O ne Million Three Hundred Thousand Dollars ($1,300,000.00) in compromise settlement of any and all claims against the City arising out of or relating to the lawsuit, and further agrees that such affirmative cooperation shall include attendance by an appropriate representative of the City in the legislative claims bill process, to the extent necessary, to advise the Legislature of the State of Florida or its special master that the City believes the passage of Plaintiffs' claims bill is in its best interest; and WHEREAS, it is the intent of Plaintiffs and the City that should Plaintiffs' claims bill in the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00) in favor of Plaintiffs and against the City not be enacted and signed into law in the 2004 legislative session, Plaintiffs may re-apply to the Legislature of the State of Florida for passage of Plaintiffs' claims bill each and every succeeding year until such time as the Legislature of the State of Florida passes Plaintiffs' claim bill and it is signed into law by the Governor; and WHEREAS, it is the intent of Plaintiffs and the City that the rejection of Plaintiffs' claim bill by the Legislature of the State of Florida or the Governor's failure to sign any claims bill passed by the Legislature of the State of Florida in favor of Plaintiffs is effective only in the legislative session where such rejection or failure took place and does not preclude Plaintiffs from re-applying to the Legislature of the State of Florida for passage of Plaintiffs' claims bill in succeeding legislative sessions; and WHEREAS, it is the intent of Plaintiffs and the City that there is no limitation as to the number of times Plaintiffs may apply to the Legislature of the State of Florida for the passage of Page 4 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment Plaintiffs' claims bill in the event Plaintiffs' claims bill is not passed by the Legislature of the State of Florida and signed into law by the Governor in the 2004 legislative session, however, the City shall not be required to actively cooperate with Plaintiffs in pursuit of Plaintiffs' claims bill after five (5) years from the date of this Settlement Agreement. NOW, THEREFORE, in consideration of One Dollar ($1.00) and the promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The City agrees to pay, to the extent permitted by the Legislature of the State of Florida, and Plaintiffs agree to accept a total of One Million Five Hundred Thousand Dollars ($1,500,000.00) as a compromise settlement of any and all claims against the City arising out of or relating to the lawsuit and/or the incident on February 22, 2003. 2. The City stipulates and consents to the entry of a consent judgment in favor of Plaintiffs and against it in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) (hereinafter the "Consent Judgment" or the "Consent Final Judgment" or the "Final Judgment"). 3. The City agrees to pay the Estate of Stephanie Tunc, One Hundred Thousand Dollars ($100,000.00) less Twenty Two Thousand One Hundred Seventy Nine Dollars already paid for a total of Seventy Seven Thousand Eight Hundred Twenty One Dollars ($77,821.00) within ten (10) business days of the execution of the Settlement Agreement and Stipulation for Consent Judgment for which execution shall issue, and agrees to pay Plaintiff, SANDRINE TUNC, One Hundred Thousand Dollars ($100,000.00) less Three Thousand Dollars ($3,000.00) already paid for a total of Ninety Seven Thousand Dollars ($97,000.00) for which let execution Page 5 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment issue. The remaining indebtedness under the Consent Judgment is conditioned upon passage of Plaintiffs' claims bill by the Legislature of the State of Florida. 4. Plaintiffs acknowledge and agree that alter the City has paid its $200,000.00 sovereign immunity cap to Plaintiffs, the only remaining indebtedness under the Consent Judgment is the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00), payment of which is conditioned upon passage of a claims bill by the Legislature of the State of Florida in the amount of One Million Three Thousand Dollars ($1,300,000.00), or any other amount, in favor of Plaintiffs. 5. The parties to this settlement agreement agree to take such action and to execute and deliver all such documents, instruments, or writings as are necessary to effectuate and fully perform all conditions to requirements of this settlement agreement. 6. Plaintiffs shall have the sole responsibility of drafting and filing Plaintiffs' claims bill application and other appropriate documents as necessary for filing with the Legislature of the State of Florida. The City shall provide to Plaintiffs any and all pertinent requested documents or information within its custody or control within a reasonable time. 7. The City agrees to affirmatively cooperate with Plaintiffs in their application to the Legislature of the State of Florida for the passage of Plaintiffs' claims bill allowing and/or directing the City to pay the remaining amount of the Consent Judgment, One Million Three Hundred Thousand Dollars ($1,300,000.00), in compromise settlement of any and all claims against the City arising out of or relating to the lawsuit, and further agrees that such affirmative cooperation shall include attendance by an appropriate representative of the City in the legislative claims bill process, to the extent necessary, and encouragement to the Legislature of Page 6 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment the State of Florida or its special master that the City believes the passage of Plaintiffs claims bill is in its best interest. 8. Plaintiffs acknowledge and agree that the City has no control over the Legislature of the State of Florida and that if the Legislature, for whatever reason, alters, modifies or otherwise changes the obligations of the City including, but not limited to, modifying the amount of Plaintiffs' claims bill, Plaintiffs shall accept such amount as Full and final settlement of their claims against the City arising our of the lawsuit and/or the incident that occurred on February 22, 2003. Nothing herein shall be construed to be a waiver of Plaintiffs' right to administratively challenge or appeal any determination made by the Legislature of the State of Florida. 9. Plaintiffs and the City acknowledge and agree that this settlement does not purport to fully compensate Plaintiffs for all their damages, but rather is a compromise settlement of the claims they may have against the City. 10. The City shall pay to Plaintiffs the amount of any claims bill passed by the Legislature of the State of Florida in favor of Plaintiffs in compromise settlement of any and all claims against the City arising our of the lawsuit within twenty (20) days of such claims bill becoming law and Plaintiffs shall give the City a satisfaction of the complete indebtedness under the Consent Judgment within twenty (20) business days after receipt of said proceeds, such satisfaction, a complete satisfaction of the Consent Judgment and any indebtedness of the City to Plaintiffs, shall state an amount equal to the amount designated in any claims bill signed into law in favor of Plaintiffs arising out of or relating to the lawsuit. 11. The Final Judgment shall be subject to the covenants and terms of this Settlement Agreement and Stipulation for Consent Judgment. Page 7 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment 12. The Court shall retain jurisdiction to enforce the terms of this Settlement Agreement and Stipulation for Consent Judgment. 13. Should Plaintiffs' claims bill in the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00) in favor of Plaintiffs and against the City not be enacted in the 2004 legislative session, the parties hereto acknowledge and agree that Plaintiffs may re-apply to the Legislature of the State of Florida for passage of Plaintiffs' claims bill each and every succeeding year until such time as the Legislature of the State of Florida passes Plaintiffs' claims bill and it becomes law, however, nothing herein should be construed to require the active participation of the City beyond five (5) years from the date of this Settlement Agreement. 14. It is the desire of the parties to this Settlement Agreement that any court which may be called upon to construe this Settlement Agreement and Stipulation for Consent Judgment will give effect to the intention of the parties hereto, provided that such actions will be brought in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. DATED THIS __ day of February, 2004. Witness SANDRINE TUNC Witness Witness Witness MARTINE TUNC CLAUDE TUNC CITY OF MIAMI BEACH JORGE M. GONZALEZ City Manager Page 8 of 9 Tunc v. City of Miami Beach Settlement Agreement and Stipulation for Consent Judgment BEFORE ME, the undersigned authority, personally appeared SANDRINE TUNC, as City Manager of the City of Miami Beach, who after being duly sworn, who is personally known to me, deposes and states that he signed this Agreement on his own free will. SWORN TO AND SUBSCRIBED before me this __ day of February, 2004. Notary Public My Commission Expires: BEFORE ME, the undersigned authority, personally appeared MARTINE TUNC, as City Manager of the City of Miami Beach, who after being duly sworn, who is personally known to me, deposes and states that he signed this Agreement on his own free will. SWORN TO AND SUBSCRIBED before me this __ day of February, 2004. Notary Public My Commission Expires BEFORE ME, the undersigned authority, personally appeared CLAUDE TUNC, as City Manager of the City of Miami Beach, who after being duly sworn, who is personally known to me, deposes and states that he signed this Agreement on his own free will. SWORN TO AND SUBSCRIBED before me this __ day of February, 2004. Notary Public My Commission Expires: STATE OF FLORIDA ) ) COUNTY OF MIAMI-DADE ) SS BEFORE ME, the undersigned authority, personally appeared JORGE M. GONZALEZ, a s City Manager of the City of Miami Beach, who after being duly sworn, who is personally known to me, deposes and states that he signed this Agreement on his own free will. SWORN TO AND SUBSCRIBED before me this __ day of February, 2004. Notary Public My Commission Expires: Page 9 of 9 R9 - New Business and Commission Requests R9G Discussion Regarding Possible Settlement Of Claude Tunc And Martine Tunc, As Personal Representatives Of The Estate Of Stephanie Tunc, And Sandrine Tunc Vs. City Of Miami Beach, Case No. 03-21813 CA 20, 11th Judicial Circuit Court Of Florida. (City Attorney's Office) (Documents in Legal - To be Submitted) AGENDA ITEM DATE