Backup Documents 06/14-15/2011 Item #16K1
ORIGINAL DOCUMENTS CHECKLIST & ROUTING sJp K 1
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
(Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The
completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on
the item.)
ROUTING SLIP
Complete routing lines #1 through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is
already complete with the exception of the Chairman's signature, draw a line through routing lines #1 through #4, complete the
checklist, and forward to Ian Mitchell (line #5).
Route to Addressee(s)
(List in routing order)
1.
Office
Initials
Date
2.
3.
4. Ian Mitchell, Executive Manager
fA
,
t,ht/rl
Board of County Commissioners
5. Trish Morgan
Clerk's Minutes and Records
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, including Ian Mitchell, need to contact stafffor additional or missing
information, All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item,)
Name of Primary Staff Heidi Ashton-Cicko, Assistant County Phone Number 252-8400
Contact Attorney
Agenda Date Item was June 14,2011 Agenda Item Number 16KI
Approved by the BCC
Type of Document Settlement Agreement Number of Original 4 originals
Attached Documents Attached
1.
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
a propriate.
Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed by
the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from contracts,
agreements, etc, that have been fully executed by all parties except the BCC Chairman and
Clerk to the Board and ossibly State Officials.)
All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and the Clerk to the Board
The Chairman's signature line date has been entered as the date of BCC approval of the
document or the final ne otiated contract date whichever is a plicable.
"Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
signature and initials are re uired.
In most cases (some contracts are an exception), the original document and this routing slip
should be provided to Ian Mitchell in the BCC office within 24 hours ofBCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of our deadlines!
Return 3 full executed co ies of settlement a reement to Heidi Ashton-Cicko in CAO
N/ A (Not
A licable)
Yes
(Initial)
2.
3.
4,
5.
6.
I. Forms! County Forms! BCC For
WWS Original 9.03,04
Routing Slip
16K 1
MEMORANDUM
Date:
June 14,2011
To:
Heidi Ashton-Cicko, Section Chief
County Attorney's Office
From:
Ann Jennejohn, Deputy Clerk
Minutes & Records Department
Re:
Settlement Agreement and Mutual Release with
Wal-Mart Stores East, LP (Case No. 06-0013-CA)
Attached for your records and further distribution are three original copies (3) of
the agreement referenced above, (Item #16K1) approved by the Board of County
Commissioners on Tuesday, June 14,2011.
The Minutes and Record's Department will hold the remaining original agreement
for the Board's Official Record.
If you have any questions, please feel free to call me at 252-8406.
Thank you.
Attachments (3)
16 K 1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE
(hereinafter referred to as the "Agreement and Release") is entered into and made as of
the Effective Date in 2011 (defined in the final numbered paragraph hereof), by and
between WAL-MART STORES EAST, LP, (hereinafter referred to as "Wal-Mart") and
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA
(hereinafter referred to as "the County").
WIT N E SSE T H:
WHEREAS, Respondent CIRCLE K STORES, INC. filed a Counterclaim
against the County in the Circuit Court for the Twentieth Judicial Circuit in and for Collier
County, Florida, in the lawsuit styled Board of County Commissioners of Collier County,
Florida v. Collier HMA, Inc., et aI., Case No. 06-0013-CA (hereinafter referred to as the
"Lawsuit")' and
, ,
WHEREAS, Wal-Mart and the County, without either of them admitting any
liability or fault, desire to settle any and all disputes that arise from, relate or refer in any
way, whether directly or indirectly, to the incidents described or allegations made in the
Counterclaim filed in the Lawsuit; and,
WHEREAS, since August, 2005, Wal-Mart at its expense has maintained that
certain letter of credit with the County as beneficiary issued by JPMorganChase Bank,
No. L5LS-694352, dated August 3, 2005 (as extended or otherwise amended, the
"Letter of Credit"); pending resolution of the Lawsuit, the County has retained
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16 K 1
possession thereof and, once the other settlement terms hereunder are met, the County
will release the Letter of Credit as hereinafter provided,
WHEREAS, Wal-Mart and the County desire to reduce their settlement to a
writing so that it shall be binding upon them as well as their respective owners,
principals, elected officials, officers, employees, ex-employees, agents, attorneys,
representatives, insurers, 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, Wal-Mart and the County agree as follows:
1. Wal-Mart and the County adopt and incorporate the foregoing recitals,
sometimes referred to as "Whereas Clauses", by reference into this Agreement and
Release.
2. Wal-Mart shall pay to the County the sum of Thirty-Seven Thousand
Three Hundred Dollars ($37,300) within 30 days of execution of this Agreement and
Release by all parties, by issuing a check payable to the Board of County
Commissioners of Collier County, Florida, and sent c/o Heidi Ashton-Cicko, Assistant
County Attorney, Office of the County Attorney, 3299 East Tamiami Trail, Suite 800,
Naples, FL 34112-5749. Within 5 days after delivery of the check as aforesaid, the
County will release and discharge the Letter of Credit by sending the original of the
same together with a cover letter acknowledging the County's release and discharge
thereof to JPMorgan Chase Bank, N.A., Attention: Letter of Credit Department, 10420
Highland Manor Drive, Tampa, FL 33610, and simultaneously sending a copy of that
cover letter to Wal-Mart's counsel, Thomas W. Danaher, Gray Robinson, P.A., 201 N.
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16K 1
Franklin Street, Suite 2200, Tampa, FL 33602, or a scanned copy to TDanaher@gray-
robinson.com.
3. 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 upon
receipt and in consideration of the sum of Thirty-Seven Thousand Three Hundred
Dollars ($37,300) paid in accordance with paragraph 2, above, and other valuable
consideration paid by Wal-Mart, the receipt and adequacy of which is hereby
acknowledged by the County, the County hereby expressly releases and forever
discharges Wal-Mart, as well as its owners, principals, officers, employees, ex-
employees, agents, attorneys, representatives, insurers, successors, assigns, heirs 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 the
County 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 or made in the Complaint or Counterclaim in the Lawsuit.
4. In consideration of the resolution of the Lawsuit, the release and discharge
by the County of the Letter of Credit in accordance with paragraph 2, above, and for
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Wal-Mart, on behalf of itself, as well as on behalf of its attorneys,
agents, representatives, insurers, heirs, successors and assigns, hereby expressly
releases and forever discharges the County, as well as its elected officials, officers,
employees, ex-employees, agents, attorneys, representatives, successors, assigns,
insurers and affiliates from any and all claims, demands, causes of actions, damages,
Page 3 of7
16 K 1
costs, attorney's fees, expenses and obligations of any kind or nature whatsoever that
Wal-Mart 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 or made in the Complaint or Counterclaim in the Lawsuit.
5. Notwithstanding anything that may be to the contrary in Paragraphs 3 or 4
above, Wal-Mart and the County agree that either of them (as well as any other persons
or entities intended to be bound or benefitted hereby) shall, in the event of any breach,
retain the right to enforce the terms and conditions of this Agreement and Release. In
the event of an alleged breach of this Agreement and Release, Wal-Mart and the
County agree that all underlying causes of action or claims of Wal-Mart and the County
respecting or relating to the subject matter of the Lawsuit and the Letter of Credit 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, Wal-Mart 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.
6. Wal-Mart and the County 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, heirs and affiliates.
7. Wal-Mart and the County recognize and acknowledge that this Agreement
and Release memorializes and states a settlement of disputed claims, and that nothing
in this Agreement and Release shall be construed to be an admission of any kind,
Page 4 of7
16K 1
whether of fault, liability, or of a particular policy or procedure, on the part of either Wal-
Mart or the County.
8. Wal-Mart and the County acknowledge and agree that this Agreement and
Release is the product of mutual negotiation, and that 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.
9. 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.
10. This Agreement and Release shall be governed by the laws of the State of
Florida.
11. This Agreement and Release may be executed in counterparts, but the
same shall jointly constitute one and the same instrument.
12. The "Effective Date" hereof shall be the first date upon which both parties
have executed this Agreement and Release, as evidenced by the dates entered in their
respective signature blocks below.
IN WITNESS WHEREOF, Wal-Mart and the County have signed and sealed
this Agreement and Release as set forth below.
Date: LD II '-t II \
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Fred W. Coyle, Chairman
Page 5 of7
16K 1
Approved as to form and
legal sufficiency:
~ ,A---Oo
Heidi Ashton-Cicko
Section Chief, Asst. County Attorney
Date: Lt I, V I /{
,
[Wal-Mart's Signature Page Follows]
Page 6 of7
16K 1
Witnesses:
A~6-s
Signature
~,jeLJI' R,."1.~Jer
nnt name
Date:
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WAL-MART STORES EAST, LP
BY: WSE MANAGEMENT, LLC, a
Delaware limited liability company and
its General Partner
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Signature
lSraVldtJh/ ~ IU t\S'cr
Print name
BY:
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Print name;:1)o.J C71-1[;/lct:'f;.G"
Title: Sa 7)z./JGt:T~
STATE OF _R(,~"5a.'S
COUNTY OF ~€.f\.tl)'"
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN WAL-MART STORES
EAST, LP AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
'1:>0" E ,""QS'e_J~_~e. , as ~t'. b~r-e.ti-or of
WSE Management, LLC, General Partner of Wal-Mart Stores East, LP, before me on
this 2~..\.-'" day of "~r: \ , 2011.
~ j~t~ ~ K\~ OO~ LO()U~
Si nature of ~ Public
RANDI DANIELLE WOODS .
NOTARY PUBLIC
BENTON County, Arkansas
M Commission Expires 8/1/2019
Personally Known
or
Produced Identification
~
C
(Please print, type or stamp)
My Commission expires:
ublic
Type of Identification Produced
06-0013-CN616
# 2492671 v3
Page 70f7