Agenda 06/14/2011 Item #16K1
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6/14/2011 Item 16.K.1.
EXECUTIVE SUMMARY
Recommendation to approve a Stipulated Final Judgment for Parcel No. 27T in the lawsuit
styled Board of County Commissioners v. Collier HMA, Inc., et aL, Case No. 06-0013-CA and
approve a Settlement Agreement and Release between Collier County and Wal-Mart
Stores East LP relating to the inverse condemnation claim in the same case (CR 951 Water
Transmission Mains Project). (Fiscal Impact $20,000 after reimbursement)
OBJECTIVE: That the Board of County Commissioners approve a Stipulated Final Judgment
for payment of full compensation for the taking of Parcel No. 27T in the lawsuit styled Board of
County Commissioners v. Collier HMA, Inc., et al., Case No. 06-0013-CA and approve a
Settlement Agreement and Release between Collier County and Wal-Mart Stores East LP ("Wal-
Mart") relating to the inverse condemnation claim in the same case (CR 951 Water Transmission
Mains Project).
CONSIDERATIONS: The County acquired the subject temporary easement for the
construction of a potable water main along CR 951 by entry of a Stipulated Order of Taking on
April 25, 2006 and depositing the sum of $14,200 into the Court Registry. A Circle K gas
station is operating on the Parent Tract. On April 3, 2006, Respondent, Circle K Stores Inc.,
made a business damage claim of $208,320.
Respondent, Convenience Stores Properties Corp., also filed a counterclaim for inverse
condemnation for the construction of a sidewalk along CR 951 on Circle K's property at the
intersection of US 41 and Collier Boulevard. The sidewalk was constructed in 2007 on Circle
K's property by Wal-Mart's contractor. Wal-Mart understood the sidewalk to be a condition of
the Site Development Plan approval. County staff requested that Wal-Mart construct the
sidewalk and the County would obtain the sidewalk easement. Wal-Mart's representative
constructed the sidewalk but the County was not able to get the sidewalk easement.
The installation of the sidewalk caused a significant amount of vegetation to be removed and
resulted in some ponding of water on Circle K's property.
County staff and Wal-Mart have agreed to the tenns of the Settlement Agreement and Release
whereby Wal-Mart will pay the County $37,300 and the County will release the letter of credit
issued in favor of Collier County by JP Morgan Chase Bank dated August 3, 2005 relating to the
super store.
The County and Respondent, Convenience Stores Properties Corp., negotiated the proposed
settlement of $70,300 as full compensation for the taking of Parcel 27T, for the business damage
claim and the inverse claim. Attomey fees and expert fees costs are still outstanding.
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6/14/2011 Item 16.K.1.
The settlement is broken down as follows:
$15,000 - full compensation for Parce127T
$18,000 - business damage: temporary disruption related to Parcel 27T
$17,300 - removal of trees for sidewalk [covered by money from Wal-Mart]
$20.000 - full compensation for sidewalk easement [covered by money from Wal-Mart]
$70,300 - TOTAL [exclusive offees and costs]
The County's share of the settlement is $33,000 less the deposit of $14,200 for a total of
$18,800. The County has also obtained a sidewalk easement over the Remainder Tract through
the inverse claim of Respondent. To alleviate the ponding on the Circle K site, Transportaiion
Operations has agreed to install a reinforced concrete pipe beneath the sidewalk at an additional
cost of $1 ,200.
The Stipulated Final Judgment is attached as Exhibit "A"; the Settlement Agreement and Release
is attached as Exhibit 'B".
FISCAL IMPACT: $1,200 from the Transportation Department and $ 18,800 from the Utilities
Department. Funds in the amount of $18,800 are available in the FY 201 1 adopted budget:
Water Disttibution Renewal and Replacement - CR 951 Water Transmission Main Project
Settlement (project 71010). Source of funds are water user fees. Funds in the amount of$1,200
are available in the Gas Tax Capital Project Fund (313), Bike and Pedestrian Pathways project
69081.
GROWTH MANAGEMENT IMP ACT: This project is connected with and will" further the
goals and policies of the Collier County Growth Management Plan.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a
majority vote for approval. (HF AC)
RECOMMENDATION: That the Board of County Commissioners approve the Stipulated
Final Judgment as to Parcel 27T, approve the Settlement Agreement and Release between Collier
County and Wal-Mart, and approve expenditure ofthe funds as stated.
PREPARED BY: Heidi Ashton-Cicko, Assistant County Attorney
06-0013-CA/656
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6/14/2011 Item 16.K.1.
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1.
Item Summary: Recommendation to approve a Stipulated Final Judgment for Parcel No.
271 in the lawsuit styled Board of County Commissioners v. Collier HMA, Inc., et aI., Case No.
06-0013-CA and approve a Settlement Agreement and Release between Collier County and
WaJ-Mart Stores East LP relating to the inverse condemnation claim in the same case (CR 951
Water Transmission Mains Project). (Fiscal Impact $20,000 after reimbursement)
Meeting Date: 6/14/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary, County Attomey
5/9/2011 9:22:26 AM
. Approved By
Name: AhmadJay
Title: Director - Transportation Engineering,Transportation Engineering & Construction Management
Date: 5/10/2011 9:54:59 AM
Nalne:FederNonnan
Title: Administrator - Growth Management Div,Transportati
Date: 5/1 0/2011 10:22:08 AM
Name: HendricksKevin
Title: Manager - Right of Way, Transportation Engineering
Date: 5/11/2011 1 :58:20 PM
Name: NauthRookmin
Title: Management/Budget Analyst, Transportation Administr
Date: 5/11/2011 3:07:54 PM
Name: TaylorLisa
Title: Management/Budget Analyst, Transportation Administr
Date: 5/11/2011 4: 11 :57 PM
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Name: AbbottAIicia
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6/14/2011 Item 16.K.1.
Title: Project Manager,Public Utilities Engineering
Date: 5/12/2011 10:25:49 AM
Name: WidesTom
Title: Director - Operations Support - PUD,UtiIities Fina
Date: 5/12/20111:27:47 PM
Name: ChmelikTom
Title: Project Manager, Principal,Public Utilities Engine
Date:5/17/201110:03:25AM
Name: SunyakMark
Title: Project Manager, Principal,Public Utilities Engineering
Date: 5/17/2011 10:09:20 AM
Name: AshtonHeidi
Title: Section Chief/Land Use-Transportation, County Attor
Date: 5/17/2011 10:16:18 AM
Name: DeLonyJim
Title: Administrator - Public Utilities,
Date: 5/17/201110:18:07 AM
Name: DowlingMichael
Title: Property Management Specialist, Senior,Facilities
Date:5/17/20111:04:04PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/27/20112:03:31 PM
Name: UsherSusan
Title: ManagementlBudget Analyst, Senior,Office of Manage
Date: 6/2/2011 3:57:30 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/3/2011 3:27:50 PM
Name: OchsLeo
Title: County Manager
Date: 6/5/20113:12:16 PM
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6/14/2011 Item 16.K.1.
IN THE CIRCUIT COURT OF THE TWENTlETH .JUDIC1AJ.J CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORlJ)A, as
the Governing Body of ColUer County and
as Ex-Officio Governing Board oftbe
Collier County Water.Sewet District,
Petitioner,
Case No.: 06.0013-CA
vs.
Parcel No.: 27T
COl,LIER Hl\.1..<\, INC., et a!.,
Rcsponde.T.J.t9.
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STIPULATED FINAL .JUDGMENT AS TO ALL
CLAIMS OF DEFENDANTS. CONVENIENCE STORES
PROPERTIES CORP. AND CIRCLE K STORES. INC.
THIS CAUSE having come on upon Joint MotioT.l for entry ofa Final Judgment made by the
Petitioner, COLLIER COUNTY, FLORIDA, and Respondeuts, CONVENIENCE STORES
PROPERTIES CORP. mJd CJRCLE K STORES INC. and it appearing to the Court that the parties
were authorized to enter into such Motion, and tb.e Court finding that the compensation to be paid by
the Petiti.oner for the land and improvements tak.en is full, ju-'\t and reasonable for aU parties
CQDcemed, and the Court being fully advised in tbe premises, it is flOW therefore
ORDERED AND ADJ1.iDGED as follows:
1. That the Respondents do have and recover of and from the Petitioner, the IiUIn of
SEVENTI" THOUSAND THREE HUNDRED DOLLARS ($70,300.00), less any sums heretofore
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pai~ in full sett.lement of all claims of the Respondents for compensation from the Petitioner
v.."hatsocver, excluding attorney fees, expert fees and costs and expenses. for the property designated
a.~ Pk-ce127T, herein taken as well. as settlement for clain'ls as set forth in ClRCLE K's Amended
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Ar.Jsy.,er and Counterclaim filed herein on April 27,2009.
i 2. That 'within thirty (30) days of the date Petitioner's counsel receives a conformed
COPl'1 of this Stipulated Final Judgment, toe Petitioner shall forthwith issue a check for the swn of
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FIFl'V-SIX THOUSAND ONE HUNDRED DOLLARS ($56,100.00), representing the settlement
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amoQnt of SEVENTY THOUSAND THREE HUNDRED AND NO/IOO DOLLARS ($70,300.00),
LESS the sum of FOURTEEN tHOUSAND TWO HUNDRED DOLLARS ($14,200.00) which is
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the mfount previously deposited for this Parce127T in this case for wbjch the Petitionet is entitled to
a credit. Upon issmmce of the check: Petitioner shall forward same by U.S. Mail to Ga.ylord Merlin
Ludoyici Diaz & Bain. Attention: Lorena Hart Ludcrvici, EsquiTe~ 5001 West Cypres~ Street, Tamp~
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Florick 33607, as attorneys for Respondent').
13. TI1at on March 31, 2007, Collier County installed a public sidewalk on CIRCLE K' S
prope~ as shown on Exhibit "A." The acquisition by the County of a perpetual easement for
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sidew~lk use, including the right to maintain said sidewalk over the property described in Exhibit
"B~' i~ hereby approved, ratified and confirmed.
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! 4. That \..rithin sixty (60) days of th.e date of eutry of tbis Fin.alJudgmelJt, Petitioner shall
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install ~ new 14'lj{ 23 " elliptical ReF ~ith mitered end sections beu.eath the sidcwaJk to re-establish
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conveyance of VI.'CIter beneath the sidewalk and toward the existing drainage structure \\~thin the
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right- ~f-way. The construction and location of the pipe and mitered end sections shall be conducted
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in. accofda.nce with the plans attacbed hereto as Exhibit "'A."
16. TIlat Parce127T (Temporary Construction Easem.ent), mOre particularly described in
Exhibit "C" attached hereto, which vested in the Petitioner pursuant to the Order of Taking and
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deposit of money heretofore made, is hereby approved, confirmed and ratified.
7. This Stipulated Final Judgment resolves all claims between the parties pertaining to
this action and the counterclaims, except for fees and costs.
8. That this Court retains and .reserves jurisdiction as to attorney fees, expert fees: costs
and expenses, and to enforce this settlement.
9. That this Stipulated Final Judgment is subject to approval by thr; Board of County
Conunissioners of CoUier County, Florida.
lO. Thatthe Notice of Lis Pendens filed in thili action and recorded in Offi.cial Record
Book 3960, Page 637, et seq., of the Public Records ofeoIlier County, Florida be dismissed as to
Parcel 27T.
11. That this Stipulated Final Judgment shall be recorded in the Official Records of
Collier County.
DONE AND ORDERED in Chambers at Naples, Collier County, florida, this
day
of
,2011..
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CIRCUIT COURT JUDGE
Copies furnished to:
Heidi Ashton Cicko, Esq.
Lorena Hart Ludovici, Esq.
Brenda C. Garretson, Esq.
:Merrilll).nch Mortgage Capital, Inc.
Kevin. .Hendricks. ROW Acquisition Mgr: TEeM
Toni Mott, Real. Estate Services
BMkkeepiu.g
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6/14/2011 Item 16.K.1.
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JOlNT MOTION FOR ENTRYOF STIPULATED FINAL
JUDGMENT AS TO ALL CLAIMS OF CIRCLE K STORES. INC.
The UlJder.si&T1ed counsel for Petitioner, COLLIER COUNTY, and counsel for Respondents,
CO~VENIENCE STORES PROPERTIES CORP. and CIRCLE K STORES, INC. hereby move and
req~est this Court to enter the foregoing Stipulated Final Judgment as to all Claims of
CON'VENIENCE STORES PROPERTIES COR.P. and CIRCLE K STORES, INC.
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Dated:
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1 0~
HEII!>l ASHTON CleRO, Esquire
As~i$tant COUlJty Attomey
Florida Bar No.: 966770
BOA~ OF COu'NTY COMMISSIOJ\TERS
OF COLLJER COUNTY, FLORIDA
3299 ~ast Tamiami Trail, Suite 800
Naples, Florida 34112
(239)1252-8400 - Telephone
(239):252-6300 - Facsimile
ATTQRNEY FOR PETITIO:NCR,
COLLIER COUNTY
CP',06.9013\631
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(:---
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LOREN
Florida Bal; No.: 847062
GA YLORD :tvfERLIN LUDOVrCI
DIA.Z & BAIN
5001. West Cypress Street
Tampa, FL 33607
Telephone: (813) 221-9000
Facsimile: (813) 221-9030
ATIORNEY FOR RESPONDENTS:
CONVEN1ENCESTORESPROPERTIES
CORP. AND CJRCLE K STORES, lNe.
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6/14/2011 Item 16.K.1.
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6/14/2011 Item 16.K.1.
LEGAL DESCRIPTION: SIDEWALK EASEM~NT
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ALL THAT CERTAIN PIECE, PARCEL OR TRACT. OF LAND SITUATE, l.YING
AND BEING IN SECTION 3, TOWNSHIP 51 SOUTH, RANGE 26 EAST Or THE
TALLAHASSEE BASE MERIDIAN, COLLIER COUNTY, F l.,OR IDA. SAlD lANDS
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO WIT;
COMMENCING FOR REFERENCE AT THE EAST QUARTER CORNER OF SAID
SECT! ON 3;
THENCE, BEARING SOUTH 00"41 '31" WEST, A DISTANCE OF 1,362.00 FEET
TO A POINT ON iHE SOUiHE:~L Y RIGHT OF WAY LINE OF STATE ROAD 90
( T AMIAMI TRAI L) ;
! THENCE, BEARING NORTH 54"2Q'16" WEST, ALONG SAID SOUTHERLY RIGHT
OF WAY LINE, A DISTANCE OF 4,596.03 FEET TO A POINT 'AT THE
INTERSECTION OF THE SOUTHERLY RIGHT OF WAY LINE OF STATE ROAD 90
(TAMIAMI TRAIL) AND THE EASTERLY ~IGHT OF WAY LINE OF STATE ~OAD
951 (COLLIER BOULEVARD}i
! THENCE" BEARING SOUTH 35043'00" WEST, ALONG SAID EASTERLY RIGHT
lOF WAY LINE, A DISTANCE OF 11.36 FEET TO A POINT ON THE
i AFOREMENTIONED EASTERLY FlIGHT Or WAY UNE Of STATE ROAD 951
i (COLLIER BOULEVARD) AND PLACr: OF SE<1INNING OF THE HEREIN
i DESCRIBEO PARCEL;
i THENCE, CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY ~INE,
: BEARING SOUTH 35 "43 J 00. WEST I A DISTANCE OF 14.98 FEEl TO A POINT
I ON THE' EASTERLY RIGHT OF WAY LINE OF STATE ROAD 961 (COLLIER
i BOULEVARD);
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j THENCE, LEAVING SAID EASTERLY RIGHT OF WAY LINE, BEARING SOUTH
1 08~47'37" EAST, A DISTANCE OF 3.44 FEET TO A POINT;
: THENCE, BEARING SOUTH 04 ~Og '17" WEST, A DISTANCE OF 141.27 FEET
i TO A POINT;
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! THENCE, BEARING SOUTH 90000'00" WEST, A DISTANCE OF 9.53 FEET TO
j A POINT ON THE EASTERLY RIGHT OF WAY LINE OF STATE ROAD 961
! (COLLIER BOULEVARD);
i THENCE, ALONG SAID EASTERLY RIGHT OF WAY LINE, BEARING SOUTH.
i 02"28'03" WEST, A DISTANCE OF 11.39 FECi TO A POINT;
THENCE, LEAVING SAID EASTERLY RIGHT OF WAY LINE, BEARING NORTH
90000'00" EAST, A DISTANCE OF 9.19 FEET TO A POINT;
THENCE, BEARING SOUTH 04"09'17" WEST, A DISi.Cl.NCE OF 66.07 FEET TO
A POINTi
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EXHIBIT "B"
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THENCE; BEARING SOUTH 14025'49" WEST, A DISTANCE OF 34.e2 FEET TO
A POINT ON. THE EASTERLY RIGHT OF WAY LINE OF STATE ROAD 961
(COLL1~R BOU~EVARD)j
THENCE, ALONG SAID EASTERLY RIGHT OF WAY LINE, BEARING SOUTH
02028'03" WEST, A DISTANCE OF 30.n FEET TO A POINTj
THENCE, LEAVING SAID EASTERLY RIGHT OF WAY LINE, BEARING NORTH
2<!e20'~5" EAST, A DISTANCE OF 29.95 FEET TO A POINTj
THENCE, BEARING NORTH 14025'49" cAST, A DISTANCE OF 36.31 FEET TO
A POINTj
THENCE, BEARING NORTH 04009 '17" EAST, A DISTANCE OF" 67.78 FEET TO
A POINT;
THENCE, BEARING NORTH 90.00'00" EAST, A DISTANCE OF B.92 FEET TO
A POINTj
THENCE, BEMHNG NORTH 00000'00" EAST, A DISTANCE Of 11.38 FEET TO
A POINTj
.
THENCE, BEARING SOUTH 90000'00" WEST, A DISTANCE OF 8.09 FEeT TO
A POINT;
THENCE, BEARING NORTH 04009'1{" 'EAST, A DISTANCE OF 141.70 FEET
TO A POINTj
THENCE, BEAR1NG NORtH 08047'37" WEST, A DISTANCE OF 15.31 FEET TO
THE PLACE OF BEGINNING;
THE ABOVE DESCRIBED PREMISES CONTAlN AN AREA OF 3,140 saUARE FEET
O~ 0.0721 ACRES, .MORE OR LESS. SUBJECT TO ALL EASEMENTS;
CONDITIONS AND RESTRICTIONS AS CONTAINED WITHIN THE CHAIN OF_
TITLE. .
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EXHJJ3IT liB II
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I i SKETCH AND DESCRIPTION OF A
TEMPDRARY CONSTRUCTION EASEMENT (27.T).
rill THE NW 1/+ SECTION J, TOWNSHIP 5t S, RAr-IGE: 2li E:
COWER COUNTY, FlORIDA
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COIJMtNClIol:; AT THE IN~CllOl'{ 0; 'tHE: S04TH'rd;T Rl:HT-OI'"-WAY UNE OF us. 41 (rAMtALlI TRAil) ANt) T}lE
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OF COL.u!rt COUNTY, THENCe: R\)N N5~'2"5Z~, A DISTANCE Of' 2.7+.0B FEET AL.ONIO SAle SOUlHVr'ES1
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e9's:r59-W. A. DISTANCE oF. 54.40 FttT TO 'lHE EAST mGlil'-Of"-w'!'y UNE OF COUIllT ROAD 951 IS RECOIlDED IN
OFFICIAL RECORD BOO!< 1456. PAGE: 1244, PU8LII:1 RECORDS OF COWER COUNTY; THENCE; ~UN ,lI,ONG SAID EASt
LiNt roR THE Fou.bwIN~ TWO (2) CALl.S: 1) N02.':2G'SZ"E. A DISiANCE or ".4+ mr: 2) NJ5'3B'OO"E, A
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CALClJLAlED ARE BAStD ON A F'IElO SURV~".
!lAoSIS OF BEARING: SlATE PLANE COORDINA1E
srs1'iOt.l. FlA EAST ZONe:. '03/\)0, .
. THIS IS NOT A SURVEY
, ." COONER.& ASSOCIATES, INC.
, SUR\lEYI,.G AND MAPPING
! 5670 ZlOJ DRIVE. FORT UYeRS. FLORIO A. 33~O~
PHO~~ (239)277-0722 f,r.,X: (23!l)2n-7ti9 EM"'!.: SURVEYlNGCCOONm,COM
CU~T~ GREELEY A~ HANSEN, U.C DRA\lcN BY: OKT CHECKE!) BY: JNW
PARCEl. OESCRIP'TiClH: PAlE: 03/:11/05 SCAl.E: 1"..30' REV:
ln4P. CONS1RUCll~ E;ASEMENT IN 1HE
HW 1/" SEL:110N O~S'-26 PROJECT No: O~0705GH OWG NO:gJ()7~1'I"'-E:lhl :5l1f:eT: 1 Of 1
2005.
EXHIBIT "ert
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6/14/2011 Item 16.K.1.
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6/14/2011 Item 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 Df Collier County,
Florida v. CDlfier HMA, Inc., et a/., Case ND. 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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Exhibit B
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6/14/2011 Item 16.K.1.
possessipn thereof and; once the other settlement terms hereunder are met, the County
will relea~e the Letter of Credit as hereinafter provided,
,
WHEREAS, Wal-Mart and the County desire to reduce their settlement to a
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writing s:o that it shall be binding upon them as well as their respective owners,
principals, elected officials, officers, employees, ex-employees, agents, attorneys,
represen~atives, insurers, successors. assigns, heirs and affiliates.
NPW, THEREFORE, in consideration of the mutual covenants, promises and
consider?tion set forth in this Agreement and Release, and with the intent t6 be legally
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bound, VYal-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.!
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2. j Wal-Mart shall pay to the County the sum of Thirty-Seven Thousand
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Three H~ndred Dollars ($37,300) within 30 days of execution of this Agreement and
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Release i by all parties, by issuing a check payable to the Board of County
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Commis~ioners 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,
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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
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same together with a cover letter acknowledging the County's release and discharge
thereof t~ JPMorgan Chase Bank, N.A., Attention: Letter of Credit Department, 10420
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Highland: Manor Drive, Tampa, FL 33610, and simultaneously sending a copy of that
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cover letter to Wal-Mart's counsel, Thomas W. Danaher, Gray Robinson, P .A, 201 N.
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6/14/2011 Item 16.K.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,
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insurers and affiliates from any and all claims, demands, causes of actions, damages,
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6/14/2011 Item 16.K.1.
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costs, a~orney'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
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or refer i~ any way, whether directly or indirectly, to the Lawsuit or any incident, event or
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allegatioQ referred to or made in the Complaint or Counterclaim in the Lawsuit.
5. J 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 entitie$ intended to be bound or benefitted hereby) shall, in the event of any breach,
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retain the right to enforce the terms and conditions of this Agreement and Release. In
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the everlt of an alleged breach of this Agreement and Release, Wal-Mart and the
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County ~gree that all underlying causes of action or claims of Wal-Mart and the County
respectirlg 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
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conditions, or any damages arising from the breach. In this regard, Wal-Mart and the
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County further agree that the sole venue for any such action shall be in the Twentieth
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Judicial ~ircuit in and for Collier County. Florida in Naples, Florida.
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6.1 Wal-Mart and the County acknowledge and agree that this Agreement and
Release jis intended to and shall be binding upon their respective owners, principals,
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officials, i officers, employees, ex-employees, agents, attorneys, representatives,
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insurers,isuccessors, assigns, heirs and affiliates.
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7.! Wal-Mart and the County recognize and acknowledge that this Agreement
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and Rel~ase memorializes and states a settlement of disputed claims, and that nothing
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in this ~greement and Release shall be construed to be an admission of any. kind,
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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:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Deputy Clerk
By:
Fred W. Coyle, Chairman
.
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Approvetl as to form and
legal sufficiency:
Nl_Q~ A (jrn
Heidi Ashton-Cicko
Section Chief, Asst. County Attorney
Date:
[Waf-Mart's Signature Page Follows]
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Witnesses:
Date: y /2. f /1/
4x~---
Signature
.4/-P "R d !1~/~(,"
Print name
WAL-MART STORES EAST, LP
BY: WSE MANAGEMENT, LLC, a
Delaware limited liability company and
its General Partner
~rL-01k~
Signature
[; r 11 11 do Vt T" M t:iSt; (1
Print name ()
BY:~ ~
Print name::.0-, CT/-;,~e~~
Title: S"IZ. VXIl5CT"u
STATE OF
COUNTY OF
A (' lu1.('lsaS"
""Bet') -\-e "
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN WAL~MART STORES
EAST, LP AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
VO(\ E+h.e.re clIP I as ~t\ i:>\\e.~i-Dr of
WSE Management, LC. General Partner of Wal-Mart Stores East, LP, before me on
this 2~~ dayof 'ApCl\ .2011.
~0 AncLi DIY1 J QYi2t {/OCJV~
~e of Notary Public
.'-'"*'-"'~~~"k~V~~~. ,
RANDI DANIELLE WOODS
NOTARY PUBLIC
BENTON County. Arkansas
~ Corrym!ssion Expi~es 8/1/2019
C 'SSitmc:d'-Naf'fte'o: ... ublic
(Please print, type or stamp)
My Commission expires:
Personally Known -L..
or
Produced Identification
Type of Identification Produced
06-00 I 3-C.tV61 6
1/ 2492671 v3
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