SETTLEMENT AGREEMENT AND RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE
is entered into by and between JOHN C. DEAN AND DOROTHY H. DEAN and MCSTAIN
ENTERPRISES, BEAUPREZ PISZEK LIMITED PARTNERSHIP, and ROBERT L. BEAUPREZ
(collectively, “the parties”).
RECITALS
The undersigned John C. Dean and Dorothy H.
Dean shall be designated as “Releasors.”
The undersigned McStain Enterprises, Beauprez
Piszek Limited Partnership, and Robert L. Beauprez, shall be designated as
“Releasees.”
WHEREAS, Releasors filed a lawsuit against
McStain Enterprises, Beauprez Piszek Limited Partnership, and Robert L.
Beauprez, along with other parties, in the District Court for the County of
Boulder, State of Colorado, Civil Action No. 95 CV 635 (the “Lawsuit”), arising
out of Releasors’ purchase and/or occupancy of certain real property owned by
Releasors and located in the Indian Peaks development (the “Property”). Following a jury trial, a judgment was
entered in Releasors’ favor in the trial court, and appellate proceedings
followed in the Colorado Court of Appeals.
WHEREAS, in exchange for a monetary
settlement the parties desire to forever resolve all current and potential
disputes among them existing as of January 4, 2000, and to dismiss the lawsuit
with prejudice.
AGREEMENT
NOW, THEREFORE, in consideration for the
mutual covenants contained herein, the parties hereby agree as follows:
In consideration of the payment to Releasors
of the sum of seven hundred thousand dollars ($700,000.00), which, in
accordance with the instructions attached hereto as Exhibit A, is to be wire transferred on January
4, 2000, each party to this Settlement Agreement and Release does release,
acquit and forever discharge every other party to this Settlement Agreement and
Release, his/her/its affiliates, predecessors, successors, insurers,
principals, agents, employers and employees, from any and all claims, demands,
and rights of action of any kind, known or unknown, now existing or arising in
the future, arising out of Releasors’ purchase and/or occupancy of the
Property.
The parties agree that of the payment set
forth above, the amount of $154,162 shall be allocated to the lost value of the
Property and the amount of $506,200 shall be allocated to reimbursement for attorneys
fees and legal costs incurred by Releasors in defending the Property against
the imposition of a constructive easement.
The parties agree that each party is relying upon its own tax advisor,
and that each party is responsible for its own tax treatment of amounts paid or
received pursuant to the provisions of this Settlement Agreement and Release.
By acceptance of the above-designated
consideration, all parties to this Release
agree to be barred forever from instituting or maintaining any action
that is in any way related to the purchase and/or occupancy of the
Property. All parties to this Settlement
Agreement and Release expressly state that no promise or inducement has been
offered except as expressly set forth in this document, and that this
Settlement Agreement and Release is executed without reliance on any statement
or representation by any other party or any of his/her/its representatives
concerning the nature or extent of any injuries or damages or legal liability
therefor, or concerning any tax consequences of the receipt and acceptance of
the consideration set forth herein. All
parties to this Settlement Agreement and Release understand that there may be
losses or damages which are unknown, unrecognized, or otherwise not
contemplated at this time. However,
this Settlement Agreement and Release is intended to and does encompass the
release and discharge of any claims, whether known or unknown, arising from the
purchase and/or occupancy of the Property.
All parties to this Settlement Agreement and
Release understand that this agreement constitutes the settlement of a disputed
claim, and that the acceptance of the above payment is in full accord and
satisfaction thereof. Payment by
Releasees is not to be construed in any way as an admission of liability for
Releasors’ alleged losses or damages, which liability Releasees specifically
deny.
Upon receipt of the settlement monies and the
signed Settlement Agreement and Release, Releasors will execute and file in the
District Court for the County of Boulder, Colorado, a Satisfaction of Judgment
with respect to the Lawsuit, which will not recite the amount of the
settlement, as well as a Stipulation of Dismissal With Prejudice of any
remaining claims against Releasees.
Releasees will dismiss or withdraw their Petition for Rehearing filed in
the Colorado Court of Appeals and the parties to this agreement will execute
such other documents as are necessary to effectuate dismissal of the
appeal. Any action taken by the
Colorado Court of Appeals on Releasees’ Petition for Rehearing prior to the
dismissal or withdrawal of the appeal shall have no effect whatsoever upon the
foregoing Settlement Agreement and Release.
No party shall continue with any further proceedings in this case in the
Colorado Court of Appeals or Colorado Supreme Court, other than to dismiss the
pending action.
All parties to this Settlement Agreement and
Release warrant that they have been represented by competent counsel in the
negotiation and consummation of this compromise settlement, that they have
sought and received advice and an explanation of this Settlement Agreement and Release
as well as all other factors involved in this compromise settlement, and that
they voluntarily and of their own free wills enter into this Settlement
Agreement and Release, fully understanding that by executing this Settlement
Agreement and Release, they are waiving all rights to bring any claim in the
future against any other party to this Settlement Agreement and Release with
regard to Releasors’ purchase and/or occupancy of the Property, including but
not limited to claims for damages of which they are not now aware or which may
be discovered in the future. All
parties to this Settlement Agreement and Release further warrant that they are
legally competent to enter into this Settlement Agreement and Release, and that
they assume the risk of any mistake of fact upon which this Settlement
Agreement and Release may be based.
This Settlement Agreement and Release shall
be construed according to the laws of the State of Colorado, and shall be
binding upon and inure to the benefit of the heirs, personal representatives,
and successors of the parties hereto.
This Settlement Agreement and Release
contains the entire agreement between the parties hereto, and the terms of this
Settlement Agreement and Release are contractual and not a mere recital.
This Agreement may be executed in one or more
counterparts, and/or by facsimile, which, when construed together, shall
constitute one and the same document.
DATED this _____ day of December, 1999.
McStain Enterprises
_______________________ By:
____________________________
John C. Dean
Beauprez Piszek Limited Partnership
_______________________ By: ____________________________
Dorothy H. Dean
_____________________________
Robert L. Beauprez