Backup Documents 01/22/2013 Item #12A ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 12 A
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 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#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office JAK
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4. BCC Office Board of County
Lk/
Commissioners 2 11'1,
5. M i nutes and Records Clerk of Court's Office
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_ 4/113
PRIMARY CONTACT INFORMATION
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,may need to contact staff for additional or missing information.
Name of Primary Staff Jeffrey A.Kl tzkow,County Attorney Phone Number 252-8400
Contact/ Department _
Agenda Date Item was 1/22/13 Agenda Item Number 12-A
Approved by the BCC
Type of Document Settlement of Employment Agreement and Number of Original one of each
Attached Non-Disclosure Agreement(Ian Mitchell) Documents Attached
PO number or account N/A
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
I. Does the document require the chairman's original signature? JAK
2. Does the document need to be sent to another agency for additional signatures? If yes, JAK
provide the Contact Information(Name;Agency;Address; Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JAK
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's JAK
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JAK
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's JAK
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip JAK
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding o Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware f your deadlines!
8. The document was approved by the BCC on 1/22/1 and all changes made during the JAK
meeting have been incorporated in the attached document. The County Attorney's
Office has reviewed the changes,if applicable.
9. Initials of attorney verifying that the attached document is the version approved by t
BCC,all changes directed by the BCC have been made,and the document is ready f r the o �'
Chairman's signature.
I.Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS Original 9.03.04,Revised 1.26.05,Revised 2.24.05;Revised 11/30/12
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GRANT
FRIDKIN m JEFFREY D.FRIDKIN
Board Certified Civil Trial Attorney
PEARSON Board Certified Business Litigation Attorney
239.514.1000 Ext.2008
ATTORNEYS AND jfridkin @gfpac.com
COUNSELORS AT LAW
January 18, 2013
Jeffrey A. Klatzkow, Esq.
Office of the County Attorney
3299 Tamiami Trail East, Ste. 800
Naples, FL 34112
Re: Ian Mitchell
Dear Mr. Klatzkow:
Enclosed herewith please find an original Non-Disclosure Agreement, and an original Settlement of
Employment Agreement Dispute. Both of these have been duly executed by Mr. Mitchell.
Per your email correspondence to me of January 16, 2013, this confirms that you will hold the
original Settlement and Employment Agreement Dispute in escrow, pending full performance by
Collier County of its payment obligation under the Settlement Agreement. Once the check in
payment has been issued, you are authorized to deliver the Settlement Agreement to the Board of
Collier County Commissioners, and the matter shall be fully and completely settled.
I would greatly appreciate your forwarding to me a fully executed version of the Settlement
Agreement once it has been duly attested to by the Clerk of the Court, and signed by the Chair of
the Board of County Commissioners.
Thank you for your cooperation in these regards.
Very truly yours,
Jeffrey �� \iii
r
JDF/Ik
Enclosures
cc: Ian Mitchell
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GRANT FRIDKIN PEARSON,P.A. 5551 Ridgewood Drive,Suite 501, Naples,Florida 34108 I T 239.514.1000 F 239.514.0377 I wv✓w.gfpac.com
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SETTLEMENT OF EMPLOYMENT AGREEMENT DISPUTE
BETWEEN IAN MITCHELL AND COLLIER COUNTY
THIS SETTLEMENT AGREEMENT is made and entered into this 22nd day of
January, 2013, by and between the Collier County, a political subdivision of the State of Florida,
by and through its Board of County Commissioners (hereinafter referred to as the"County"), and
Ian Mitchell.
RECITALS:
WHEREAS, on May 25; 2010, the Board of County Commissioners entered into an
Executive Manager to the Board of County Commissioners Employment Agreement with Ian
Mitchell (copy attached). Section 6 of the Employment Agreement entitled "Termination and
Severance Pay" required the following two-part process in order for the Board to terminate the
Employment Agreement.
". . . in the event the COUNTY desires to terminate EMPLOYEE during such time that
EMPLOYEE is willing and able to perform the duties of Executive Manager to the Board of
County Commissioners, COUNTY may do so only in the following manner:
1. A resolution of intent to terminate EMPLOYEE shall be adopted by an
affirmative vote of a three fifths majority of the entire membership of the Board
only after said resolution has been placed on the agenda of a regularly scheduled
Board meeting and where said agenda item has been included as a part of the
published agenda of the Board meeting.
2. Upon adoption of a resolution of intent to terminate EMPLOYEE, the
Board may consider the adoption of a resolution terminating EMPLOYEE at a
regularly scheduled meeting of the Board not less than fourteen (14) days
thereafter. The resolution terminating EMPLOYEE shall require an affirmative
vote of a three fifths majority of the entire membership of the Board for adoption.
In the event of termination, such termination shall be effective at such time and
upon such conditions as may be set by the Board in the resolution terminating
EMPLOYEE;"and
WHEREAS, on September 26, 2012, the Board directed the County Attorney to
review the Employment Agreement for the purpose of initiating the termination process;
and
WHEREAS, on October 9, 2012, the Board completed the first step in this
process by adopting a Resolution confirming its intent to terminate the Employment
Agreement; and
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WHEREAS, on October 23, 2012, the Board of County Commissioners adopted
Resolution No. 2012-202 terminating the Employment Agreement with the Executive Manager
to the Board of County Commissioner (hereinafter referred to as the "Termination Resolution");
and
WHEREAS, Section 6. C. of the Employment Agreement sets forth the compensation
due to the employee as follows:
"C. In the event of termination in accordance with the procedures set forth in
Subsection 6.B, COUNTY agrees to pay EMPLOYEE, in addition to any amounts
then due EMPLOYEE, a lump sum cash payment equal to six (6) months
aggregate salary within ten (10) working days after the effective date of
termination.
EMPLOYEE shall also be compensated in accordance with CMA#5360—Leaves
of Absence for all vacation, holidays, and other accrued benefits to date.
EMPLOYEE's individual health, dental and term life insurance and dependent
health insurance benefits shall be provided for a period of twelve (12) months
after termination;" and
WHEREAS, Section 2 of the Employment Agreement required Mr. Mitchell "work with
the Office of the County Attorney to develop a Confidentiality Agreement, subject to Board
approval, that prevents the divulgence, disclosure and release of confidential and/or sensitive
information acquired during the course of the EMPLOYEE's and the Executive Aide's
employment with the Board not otherwise authorized or compelled by law," which requirement
was never fulfilled; and
WHEREAS, on December 11, 2012, Commissioner Henning brought forward a request
that the Termination Resolution be reconsidered, which motion was approved by a majority of
the Board; and
WHEREAS, during its January 8, 2013 meeting, the Board reconsidered the Termination
Resolution. During discussion of this item, several issues were raised, including whether the
termination was appropriate and no further action need be taken by the Board; whether Mr.
Mitchell had effectively resigned from the position, in which event severance would not be
warranted; whether the Resolution should be rescinded, thereby allowing Mr. Mitchell to return
to his position; and whether Mr. Mitchell was in breach of his Employment Agreement for
failure to have entered into a Confidentiality Agreement; and
WHEREAS, the Board tabled further discussion of this item, and directed the County
Attorney to initiate settlement discussions with Mr. Mitchell; and
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WHEREAS, Mr. Mitchell does not desire to return to his position as Executive Manager
to the Board of County Commissioners, and believes he is entitled to his full severance package;
and
WHEREAS,the parties wish to end this issue and to settle their respective differences.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT. The Employment
Agreement is hereby deemed to have been terminated effective October 23, 2012.
2. SEVERANCE PAY. Within 10 business days from the date of this Settlement
Agreement, Mr. Mitchell shall receive the sum of$24,017.82, representing a total of 19 weeks of
compensation. The parties agree that any and all earned and accrued leave and reimbursements
for expenses that Mr. Mitchell was entitled to has already been paid. In keeping with Section
6.C. of his Employment Agreement, Mr. Mitchell's individual health, dental and term life
insurance and dependent health insurance benefits shall be provided through October 31, 2013.
No further compensation of any kind shall be due.
3. CONFIDENTIALITY AGREEMENT. This Agreement is contingent on both
parties execution of the Confidentiality Agreement attached hereto. The Confidentiality
Agreement shall be revocable on written notice to the County by Mr. Mitchell if and only if Mr.
Mitchell is not paid in accordance with the terms of this Agreement.
4. MUTUAL GENERAL RELEASE. To the extent authorized by Florida Law,
including Florida Statutes Sec. 215.425, in consideration of the mutual relinquishment of their
respective legal rights with reference to disputes and differences each party expressly releases
the other, and their heirs and legal representatives, from all liability for all known and unknown
claims and demands arising out of the Employment Agreement and Mr. Mitchell's role as the
Executive Manager to the Board of County Commissioners. In further consideration of the
foregoing, the parties also hereby release, acquit, satisfy, and forever discharge each other, of
and from all, and all manner of action and actions, suits, debts, dues, sums of money, covenants,
contracts, controversies, agreements, promises, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, which they ever had, now have, or which any personal
representative, successor,heir or assign of them,hereafter can, shall or may have, against each of
them, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day of these presents. The Confidentiality Agreement shall survive this General
Release.
5. GENERAL PROVISIONS:
a. The provisions of this Settlement Agreement constitute the entire understanding
between the parties with respect to the subject matter set forth herein. This Agreement may not
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be amended or modified except in a written document signed by the parties, and no other
representations or understandings are binding on the Board of County Commissioners and Mr.
Mitchell unless contained in a subsequent, duly adopted and executed written amendment to this
Settlement Agreement.
b. This Settlement Agreement shall be construed and administered in accordance
with Florida and any other applicable law. The sole and exclusive venue for any litigation
between the parties arising out of or related to this Agreement or any documents executed in
connection with this Agreement shall be in the Circuit Court in and for Collier County, Florida.
c. Should any provision of this Agreement be declared by a court of competent
jurisdiction to be invalid, the same shall not affect the validity of the Agreement as a whole, or
any part thereof, other than the part declared to be valid.
d. This Settlement Agreement shall become effective as of January 22, 2013.
e. The parties agree that they will execute any other documents as are necessary to
effectuate or carry out the intent of this Settlement Agreement.
IN WITNESS WHEREOF, the parties have caused this Settlement Agreement to be
executed by their appropriate representatives, as of the date first above written.
ATTEST: ,, BOARD • •UNT / COMMISSIONERS
DWIGHT E..BRO tiClerk COLLI:R • Y FLORIDA
B �' � L � B
y _:w L.I►,�►Aw y:
,De uty 11-rk i GEO7 IA A. HILLER, ESQ.
A t • CHAIRWOMAN
WITNESSES: Ian Mitchell C
By: 1 AII
Print Name:
1 at,,,.,4. a 2013
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Print Name: u
Appro ,ed ', a • in
an .41i ,� iciency:
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Jeffrey'f .11' la kow
County . 16■rney
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NON-DISCLOSURE AGREEMENT
THIS AGREEMENT(the"Agreement")is entered into on this 22nd day of January,2013,by and
between the Board of Collier County Commissioners of Collier County, Florida located at 3299 Tamiami
Trail East, Naples, Florida 34112(the "Board") and Ian Mitchell, Executive Manager to the Board of
County Commissioners("Mitchell")as required by Section 2 of Mitchell's Employment Agreement dated
May 25, 2010.
Mitchell in his capacity as Executive Manager to the Board of County Commissioners often
participates in or is privy to the private, confidential discussions regarding the professional and personal
business of the five (5) individual Board members (collectively referred to herein as the Board). During
those discussions, the Board may share certain personal and private information with Mitchell that is
intended to be confidential. Therefore, in consideration of the mutual promises and covenants contained
in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged,the parties hereto agree as follows:
I. Definition of Confidential Information.
(a) For purposes of this Agreement, "Confidential Information" means any oral
communication that is personal, private or particular to the Board members and not generally known to
the public, or written communications not constituting public records as defined by Section 119, Florida
Statutes (2012), whenever and however disclosed. Confidential Information need not be novel or unique
in order to be designated Confidential Information. Mitchell acknowledges that Confidential Information
is personal and private to the Board and that the Board regards all of its Confidential Information as not
subject to disclosure.
(b) Notwithstanding anything in the foregoing to the contrary, Confidential
Information shall not include information which: (i) was known by Mitchell prior to receiving the
Confidential Information from the Board; (b) becomes rightfully known to Mitchell from a third-party
source not known by Mitchell (after diligent inquiry) to be under an obligation to the Board to maintain
confidentiality; (c) is or becomes publicly available through no fault of or failure to act by Mitchell in
breach of this Agreement; (d) concerns information that is protected pursuant to State or Federal
"Whistleblower" laws; or (e) is required to be disclosed in a judicial or administrative proceeding, or is
otherwise requested or required to be disclosed by law or regulation, although the requirements of
paragraph four(4)hereof shall apply prior to any disclosure being made.
2. Disclosure of Confidential Information.
From time to time, the Board may have disclosed Confidential Information to Mitchell
throughout the course of Mitchell's employment with Collier County.Mitchell will: (a)restrict disclosure
of any Confidential Information in connection with his past, current or future employment relationship
with the Board, (b) advise individual Board members who have disclosed such Confidential Information
to Mitchell in advance if he is compelled to disclose such information in accordance with the provisions
of section four (4) below, (c) shall keep all Confidential Information strictly confidential by using the
same reasonable degree of care that he would use if safeguarding his own Confidential Information; and
(d) not disclose any Confidential Information received by it to any third parties (except as otherwise
provided for herein).
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3. Use of Confidential Information.
Mitchell agrees to use the Confidential Information solely in connection with his past,
current or future employment relationship with the Board and not for any purpose other than as authorized
by this Agreement without the prior written consent of an authorized representative of the Board. No
other right, whether expressed or implied, in the Confidential Information is granted to Mitchell
hereunder. All title and ownership of any Confidential Information will remain solely in the Board.
4. Compelled Disclosure of Confidential Information.
Notwithstanding anything in the foregoing to the contrary, Mitchell may disclose
Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena,
discovery request, regulatory request or similar method, provided that Mitchell promptly notifies the
Board in writing of such demand for disclosure so that the Board, at its sole expense, may seek to make
such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of
the Confidential Information. Mitchell agrees that it shall not oppose and shall cooperate with efforts by
the Board with respect to any such request for a protective order or other relief. Notwithstanding the
foregoing, if the Board is unable to obtain or does not seek a protective order and Mitchell is legally
requested or required to disclose such Confidential Information, disclosure of such Confidential
Information may be made without liability.
5. Term.
This Agreement shall remain in effect for a four-year term from the date Mitchell
separates(whether by resignation,retirement or termination)from his employment with the Board.
6. Remedies.
Both parties acknowledge that the Confidential Information to be disclosed hereunder is
of a unique, personal and valuable character, and that the unauthorized dissemination of Confidential
Information will cause the Board to sustain damages. Therefore, both parties hereby agree that the Board
shall be entitled to the following remedies in the event of any dissemination of Confidential Information
by Mitchell in violation of the terms of this agreement: (1)Mitchell and the Board recognize that because
of the unique nature of Confidential Information it is difficult to determine the actual damages that will
result from an unauthorized disclosures. The parties agree, however, that the Board shall be entitled to
recover as liquidated damages, but not as a penalty, the total amount of severance actually paid out to
Mitchell (if any) upon the date of his separation from County employment, and (2) injunctive relief
preventing the dissemination of any Confidential Information in violation of the terms hereof. Such relief
shall be in addition to any other remedies available hereunder, whether at law or in equity. The Board
shall be entitled to recover its costs and fees, including reasonable attorneys' fees, incurred in obtaining
any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorney's fees and expenses.
7. Notice of Breach.
Mitchell shall notify the Board immediately upon discovery of any unauthorized use or
disclosure of Confidential Information by Mitchell, his agents or representatives, or any other breach of
this Agreement by Mitchell, his agents or representatives, and will cooperate with efforts by the Board to
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help the Board regain possession of Confidential Information and prevent its further unauthorized use.
8. Miscellaneous.
(a) This Agreement constitutes the entire understanding between the parties and
supersedes any and all prior or contemporaneous understandings and agreements,whether oral or written,
between the parties, with respect to the subject matter hereof. This Agreement can only be modified by a
written amendment signed by the party against whom enforcement of such modification is sought.
(b) The validity, construction and performance of this Agreement shall be governed and
construed in accordance with the laws of State of Florida. The Federal and State courts located in Collier
County,Florida shall have sole and exclusive jurisdiction over any disputes arising under the terms of this
Agreement.
(c) Any failure by either party to enforce the other party's strict performance of any
provision of this Agreement will not constitute a waiver of its right to subsequently enforce such
provision or any other provision of this Agreement.
(d) Although the restrictions contained in this Agreement are considered by the parties to
be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found
by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or
interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so
modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the
remainder of the Agreement will be enforced as if such provision was not included.
(e) Any notices or communications required or permitted to be given hereunder may be
delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by
certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party.
All such notices or communications shall be deemed to have been given and received (a) in the case of
personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a
nationally recognized overnight carrier,on the third business day following dispatch and(c) in the case of
mailing,on the seventh business day following such mailing.
(f) This Agreement is personal in nature, and neither party may directly or indirectly
assign or transfer it by operation of law or otherwise without the prior written consent of the other party.
All obligations contained in this Agreement shall extend to and be binding upon the parties to this
Agreement and their respective successors, assigns and designees.
(g) Paragraph headings used in this Agreement are for reference only and shall not be
used or relied upon in the interpretation of this Agreement.
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IN WITNESS WHEREOF,the parties hereto have executed this Ageement as of the date first
above written.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E.BRDCK,Clerk COLLIER TY,FLORIDA
BY: A�ii
By 1
GEO T MA.i LER,ESQ.
Date" .bY'[�c�' '; 4-' a 3 CHAIRWOMAN
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Approv:i , form and
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Jeffrey
County .;` o,l'cey
By
First Witness Ian Mitchell
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Type/print witness name
Second Witness
Type/print witness name
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