Agenda 06/11/2013 Item #16K16/11/2013 16. K.1.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chairwoman to execute a Settlement
Agreement in the lawsuit entitled Lowe's Home Centers, Inc., v. Kohl's Department Stores,
Inc., et al., filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case
No. 08- 6373 -CA).
OBJECTIVE: Recommendation to approve settlement in the lawsuit filed by Lowe's Home
Centers, Inc., v. Kohl's Department Stores, Inc., et al., filed in the Twentieth Judicial Circuit in
and for Collier County, Florida (Case No. 08- 6373 -CA) and authorize the Chairwoman to
execute the Settlement Agreement.
CONSIDERATIONS: This litigation stems from the installation of a median between the
Lowe's Home Centers, Inc. and Kohl's Department Stores, Inc. Lowe's filed suit against Kohl's
seeking removal of the median and monetary damages. Kohl's filed a Third Party Complaint
against the County alleging counts of Contribution, Common -Law Indemnification and
Equitable Subrogation.
The parties have engaged in settlement negotiations and have tentatively, pending Board
approval, agreed to resolve this case with each party to bear its own attorneys' fees and cost.
The County will be dismissed from the lawsuit without paying any damages, attorney fees or
costs.
FISCAL IMPACT: None.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed this settlement
and recommends that the Board of County Commissioners approve this Settlement Agreement.
This item is approved as to form and legality and requires majority vote for approval. — KLN
RECOMMENDATION: For the Board of County Commissioners to accept the settlement in
the lawsuit filed by Lowe's Home Centers, Inc., v. Kohl's Department Stores, Inc., et al., and
authorize the Chairwoman to execute the Settlement Agreement.
Prepared by: Kevin L. Noell, Assistant County Attorney
08- 6373- CA/3522
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6/11/2013 16. K.1.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16. K. 16. K. 1.
Item Summary: Recommendation to approve and authorize the Chairwoman to execute a
Settlement Agreement in the lawsuit entitled Lowe's Home Centers, Inc., v. Kohl's Department
Stores, Inc., et al., filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case
No. 08- 6373 -CA).
Meeting Date: 6/11/2013
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
5/29/2013 10:12:21 AM
Approved By
Name: NoellKevin
Title: Attorney of Record (CAO)
Date: 5/29/2013 11:05:21 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 5/29/2013 1:42:36 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 5/30/2013 8:28:37 AM
Name: OchsLeo
Title: County Manager
Date: 5/30/2013 3:38:00 PM
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6/11/2013 16. K.1.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ( "Agreement ") is made this day of June,
2013 by and between LOWE'S HOME CENTERS, INC., a North Carolina corporation
( "Lowe's "), KOHL'S DEPARTMENT STORES, INC., a Delaware corporation ( "Kohl's "),
and COLLIER COUNTY, a political subdivision of the State of Florida ( "Collier County ")
(Lowe's, Kohl's and Collier County are also collectively, at times, referred to as the "parties"
and, individually, as a "party ").
RECITALS
A. Certain differences previously arose between the parties as have been claimed and
pled in that certain lawsuit styled Lowe 's Home Centers, Inc. v. Kohl's Department Stores, Inc.,
Case No. 08- 6373 -CA, in the Circuit Court of the Twentieth Judicial Circuit in and for Collier
County, Florida, as well as in Appeal No. 2D08 -4942, previously pending before the Second
District Court of Appeal in and for the State of Florida (collectively, the "Litigation ");
B. The parties have determined that it is in their best and mutual interest to amicably
settle the Litigation, as well as those issues raised, or which might have been raised, in the
Litigation without further hardship, cost and expense;
C. By entering into this Agreement, neither party is admitting any sort of liability or fault
on such party's behalf, but rather have determined to settle and compromise all claims asserted
by, or which may have been asserted by, the parties in order to resolve their differences and
avoid the financial expense and burden of protracted and complex litigation;
D. The parties hereto desire to enter into this Agreement to memorialize their agreements
and understandings with respect to the settlement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree as follows:
Recitals: The above recitals are true and correct and are incorporated herein by
reference.
2. Dismissal with Prejudice: Concurrent with the execution of this Agreement, the
parties shall, through their respective counsel of record, file a stipulation for dismissal
with prejudice of the Litigation in its entirety, with each party to bear their own
attorneys' fees and costs. The stipulation of dismissal shall be in the form attached
hereto as EXHIBIT A.
Bear Own Attorneys' Fees: The parties agree that each party hereto shall bear its or
their own attorneys' fees and costs incurred by said party as a result of the Litigation
and this Agreement, and expressly waive any future claim for or entitlement to
attorneys' fees or costs related in any manner to the Litigation or this Agreement.
4. Release: Except for the mutual promises and obligations set forth in this Agreement,.,..
the parties do hereby and by these presents for their respective successors, assigns,
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6/11/2013 16.K.1.
heirs, personal representatives, legatees, devisees, agents, representatives, principals,
shareholders, directors, officers, employees, past, present and future owners, parent
corporations, related or affiliated companies, subsidiaries, accountants, attorneys,
auditors, consultants, insurers and re- insurers, and their respective successors and
predecessors in interest, and for anyone claiming by, through or under said parry, fully
remise, waive, release, acquit, and forever discharge, the other party and their
respective successors, assigns, heirs, personal representatives, legatees, devisees,
agents, representatives, principals, shareholders, directors, officers, employees, past,
present and future owners, parent corporations, related or affiliated companies,
subsidiaries, accountants, attorneys, auditors, consultants, insurers and re- insurers, and
their respective successors and predecessors in interest, of and from any and all claims
raised in the Litigation or which relate in any way to the concrete medians or Lowe's
Northwest exit on the West road which are at issue in the Litigation.
5. Confidentiality: As of the Effective Date, the parties agree to keep the terms of this
Agreement confidential; provided, however, that the parties may disclose the terms of
this Agreement, as necessary: (a) to their respective accountants, tax advisors,
financial consultants, family members and/or legal advisors who first agree to abide by
the terms of this paragraph; (b) to their employees who first agree to abide by the
terms of this paragraph; and (c) as required by law. Nothing contained herein is
intended to prevent the parties from stating that this dispute has been resolved
amicably or words to like effect.
6. Default: In the event of any default under any of the terms of this Agreement,
including a breach of the confidentiality provision contained under paragraph 5 above,
the non - defaulting party may institute legal proceedings or avail itself of any legal
remedies available to such party. In the event of any such actions, or in the event of
any action to enforce and /or interpret the terms of this Agreement, the prevailing party
shall be entitled to an award of reasonable attorneys' fees, costs and expenses incurred
in the action, all through any level of appeal.
Entire Agreement: This Agreement contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all prior or
contemporaneous agreements, understandings, representations, or negotiations
between the parties concerning such subject matter. No waiver, modification,
alteration or amendment of any term, condition or provision of this Agreement shall
be valid or of any force or effect unless in writing, signed by the party to be charged,
and specifying with particularity the nature and extent of such waiver, modification,
alteration or amendment.
8. Binding Nature: This Agreement shall be binding upon and shall inure to the benefit
of all parties hereto, as well as their respective successors, assigns, heirs, personal
representatives, legatees, devisees, agents, principals, shareholders, past, present and
future owners, directors, officers, representatives, employees, parent corporations,
related or affiliated companies, subsidiaries, consultants, insurers and re- insurers, and
their respective successors and predecessors in interest.
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6/11/2013 16.K.1.
9. Governing Law. Jurisdiction and Venue: This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without giving effect to
the conflict of laws provisions. The parties agree that the sole and exclusive
jurisdiction and venue of any action brought pursuant to this Agreement, to enforce
the terms hereof, or otherwise with respect to the relationship between the parties
created or extended pursuant hereto, shall solely lie in the court(s) of the State of
Florida having jurisdiction over Collier County, Florida.
10. Mutual Negotiations: The parties hereto acknowledge that this Agreement is a result
of mutual negotiations and is the joint product of the respective parties. Accordingly,
the parties agree that this Agreement shall be fairly construed in accordance with the
terms hereof and shall not be more strictly construed against any party.
11. Consideration: The parties acknowledge and agree that each is foregoing certain
rights and assuming certain duties and obligations which, but for this Agreement,
would not have been released or assumed. Further, each party will save on additional
costs and attorney's fees that they would otherwise have spent but for this Agreement.
Accordingly, the parties agree that this Agreement is fully and adequately supported
by consideration and is fair and reasonable.
12. Counterparts and Facsimile Signatures: This Agreement may be executed in any
number of counterparts (and by delivery of facsimile signature pages), each of which
shall be deemed an original but all of which shall together constitute one (1) and the
same instrument. A facsimile or electronic signature on this Agreement will be
deemed to be equivalent to an original signature.
13. Authority: Each of the parties hereto acknowledge, represent and warrant that this
Agreement has been duly authorized and approved by the proper representatives of
said party and the undersigned has full power and authority to execute this Agreement
on behalf of such party
14. Paragraph Headings: Captions and paragraph headings in this Agreement are for
convenience and reference only and do not define, describe, extend or limit the scope
or intent of this Agreement or any provision herein.
IN WITNESS WHEREOF, all parties have executed this instrument as of the date first
above written.
LOWE'S HOME CENTERS, INC.
a North Carolina corporation
Its:
KOHL'S DEPARTMENT STORES, INC.
a Delaware corporation
0
Its:
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Date: , 2013
ATTEST:
DWIGHT E. BROCK, CLERK
, DEPUTY CLERK
Approval for form 1 gal sufficiency:
Kevin L. Noell
Assistant County Attorney
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COLLIER COUNTY, a political subdivision of
the State of Florida:
Georgia A. Hiller, Esq., Chairwoman Collier
County Board of County Commissioners
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EXHIBIT A
STIPULATION OF DISMISSAL WITH PREJUDICE
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
LOWE'S HOME CENTERS, INC., a North
Carolina corporation,
Plaintiff,
VS.
KOHL'S DEPARTMENT STORES, INC.,
a Delaware corporation,
Defendant. Case No. 08- 6373 -CA
KOHL'S DEPARTMENT STORES, INC.,
a Delaware corporation,
Third -Party Plaintiff,
vs.
COLLIER COUNTY, a political subdivision
of the State of Florida,
Third -Party Defendant.
STIPULATION FOR DISNIISSAL WITH PREJUDICE
THE PARTIES, by and through their undersigned counsel, hereby stipulate to the
dismissal of this action in its entirety, with prejudice, and with each party to bear its or their
respective attorneys' fees and costs.
Respectfully submitted,
GRANT FRIDKIN PEARSON, P.A.
:
Jeffrey D. Fridkin
Florida Bar No. 0490245
5551 Ridgewood Drive, Suite 501
Naples, Florida 34108
(239) 514 -1000
(239) 514 -0377 (fax)
Attorneys for Lowe's Home Centers, Inc.
Rl
QUARLES & BRADY, LLP
mm
Andrew G. Tretter
Florida Bar No.
1395 Panther Lane, Suite 300
Naples, FL 34109 -7875
(239) 434 -4955
(239) 213 -5455 (fax)
Attorneys for Kohl's Department Stores, Inc.
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OFFICE OF THE COUNTY ATTORNEY
LOOM
Colleen M. Greene, Esq.
Assistant County Attorney
Florida Bar No.
Collier County Attorney's Office
3299 E. Tamiami Trail, Ste. 800
Naples, FL 34112
(239) 252 -8400
(239) 774 -0225 (fax)
Attorneys for Collier County, Florida
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
LOWE' S HOME CENTERS, INC., a North
Carolina corporation,
Plaintiff,
VS.
KOHL'S DEPARTMENT STORES, INC.,
a Delaware corporation,
Defendant.
KOHL'S DEPARTMENT STORES, INC.,
a Delaware corporation,
Third -Party Plaintiff,
VS.
COLLIER COUNTY, a political subdivision
of the State of Florida,
Third -Party Defendant.
6/11/2013 16. K.1.
Case No. 08- 6373 -CA
ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE having come before the Court on the Stipulation for Dismissal with
Prejudice entered into between the parties, the Court having reviewed the file and being
otherwise fully advised of the premises,
IT IS HEREBY ORDERED AND ADJUDGED that the above- captioned case is hereby
DISMISSED with prejudice in its entirety;
IT IS FURTHER ORDERED AND ADJUDGED that each parry shall bear his/her or its
respective attorneys' fees and costs.
DONE AND ORDERED in chambers in Naples, Collier County, Florida this day of
, 20`
Conformed copies to:
Jeffrey D. Fridkin, Esq.
Andrew G. Tretter, Esq.
Colleen M. Greene, Esq.
HONORABLE FREDERICK R. HARDT
Circuit Judge
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