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”).
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.
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.
_______________________ By: ____________________________
John C. Dean
Beauprez Piszek Limited Partnership
_______________________ By: ____________________________
Dorothy H. Dean
Robert L. Beauprez