Exhibit 10.28
Settlement Apreement
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This Settlement Agreement is made and entered into as of January 31, 2000
("Agreement"), by and among WINDSOR WOODMONT, LLC, a Colorado limited liability
company ("Owner"), and X.X. XXXXXXXX & SONS, INC., a Minnesota corporation
("Contractor"), in connection with the following.
RECITALS
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A. Contractor and Owner entered into that certain Second Amendment to
Standard Form of Agreement between Owner and Contractor, dated December 31, 1999
(the "Second Amendment"), which amended the Supplemented Agreement, Supplemented
General Conditions and First Amendment (as said documents are defined in the
Second Amendment, and which documents are collectively referred to herein as the
"Original Agreement"), wherein Contractor agreed to continue to provide its
services in connection with the excavation of the real property located in the
City of Black Hawk, Colorado, in connection with the construction of a casino
thereupon (the "Project").
B. Contractor had previously commenced and provided its services in
connection with the Original Agreement, until the development of the Project was
suspended, at which time Contractor had provided a substantial amount of
services for which it was not compensated. As a result of the suspension of the
development of the Project, various actions were undertaken by and against the
parties hereto by the parties hereto and by other parties not subject of this
Agreement (the "Third Parties"), which actions remain at issue as of the date
hereof.
C. Contractor did demand payment for its services. Contractor did file and
amend a lien against upon the Project pursuant to (i) that certain Statement of
Lien dated February 8, 1999, and recorded February 23, 1999 in Book 663, at Page
77of the Offidial Records of Xxxxxx County, Colorado, and re-recorded May 5,
1999 in Book 669, at Page 159 of the Official Records of said county, and (ii)
that certain Amended Statement of Lien dated June 21, 1999, and recorded July 6,
1999 in Book 673, at Page 353 of the Official Records of said county
(collectively, the "Liens"'), and also file a complaint and record a list
pendings upon the Project pursuant to that certain Notice of List Pendings,
recorded in Book 669, at Page 447 of the Official Records of said county (the
"List Pendings").
D. Contractor's subcontractor, XXXXXX EQUIPMENT CO. ("Subcontractor", did
also file a lien against upon the Project pursuant to that certain Statement of
Lien dated March 3, 1999, and recorded March 16, 1999 in Book 664, at Page 423
of the Official Records of said county (the "Subcontractor Lien").
E. The parties hereto now desire, by execution of this Agreement, in
connection with the making of the Second Amendment, to release unconditionally
the Liens, the List Pendings, and the Subcontractor Lien upon the Project,
upon the payment to Contractor of the sum of Three Million Three Hundred Thirty
Two Thousand Thirty-Two Dollars ($3,332,032.00), as set forth in paragraph 12 of
the Second Amendment.
F. Concurrently herewith and as a condition concurrent with the validity
and enforceability of this Agreement, all actions of the Third Parties against
Owner and Contractor shall be effectively dismissed with prejudice, or otherwise
disposed of such that neither Owner nor Contractor shall have any further
liability to the Third Parties arising in any manner in connection with the
Project.
NOW, THEREFORE, for good and valuable consideriation, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Consideration to Contractor. In connection with this Agreement, upon the
Effective Date, Contractor shall receive the sum of Three Million Three Hundred
Thirty Two Thousand Thirty-Two Dollars ($3,332,032.00), as set forth in
paragraph 12 of the Second Amendment. In addition, upon the Effective Date,
Owner shall have deposited the sum of Eight Hundred Seventy Seven Thousand Nine
Hundred Ninety-Five Dollars ($877,995.00), representing the approximate amount
of the final payment due to Contractor, into an escrow account administered by a
duly licensed escrow holder or conunercial bank reasonably acceptable to the
parties hereto, for the purposes of providing payment for Contractor's final
payment request.
2. Release of Liens. List Pendings. and Subcontractor Lien. By no later
than the Effective Date, the following shall occur (or have occurred):
(a) Contractor shall deliver to a licensed escrow holder in the State of
Colorado as the parties shall determine, a duly executed and acknowledged lien
release in the appropriate form designated by such escrow holder,
unconditionally releasing the Liens upon the Project, and Contractor shall have
provided all pleadings necessary to obtain a release and discharge of the List
Pendings in recordable form releasing the List Pendings with prejudice.
(b) Contractor shall cause Subcontractor to deliver to the
aforementioned escr9w holder a duly executed and acknowledged lien release in
the appropriate form designated by such escrow holder, unconditionally releasing
the Subcontractor Lien upon the Project.
3. Conditions Precede
(a) The effectiveness and validity of this Agreement and the releases
contemplated hereby are conditioned upon (i) each of the parties having execut
ed and delivered to each of the other parties hereto a counterpart of this
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Agreement, and (iii) the payment of the sum of $3,332,032.00 as set forth in
paragraph 12 of the Second Amendment. The date upon which all conditions
specified in this Section 3 have been satisfied is referred to herein as the
"Effective Date".
(b) The effectiveness and validity of this Agreement and the releases
contemplated hereby are further conditioned upon the effective dismissal with
prejudice, or other satisfactory disposition, no later than the Effective Date,
of all actions by any and all the Third Parties of all claims which were brought
or could have been brought by the Third Parties against Owner and Contractor,
such that neither Owner nor Contractor shall have any further liability to the
Third Parties arising in connection with the Project.
4. Advice of Counsel. In executing this Agreement, all parties acknowledge
that they have consulted with and had the advice of their own counsel, and that
each has executed this Agreement after careful and independent investigation,
and not under fraud, duress or undue influence.
5. Necessary parties. All parties represent and warrant that they will not
have and have not assigned or otherwise transferred or subrogated any interest
in any claims which are the subject matter hereof that they may have against
each other, and each agrees to indemnify, defend and hold the other harmless
from any liability, loss, claims, demands, costs, expenses, or attorneys' fees
incurred by the others as a result of such assignment or transfer to any such
person or entity.
6. Choice of Law and Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado. Each of the
parties to this Agreement has participated equally in the negotiation and
preparation of this Agreement and, as a result, any provisions set forth herein
which may be ambiguous shall not be interpreted in a manner so as to prejudice
any party more than another but shall be construed as a whole and in accordance
with their fair meaning.
7. Further Assurances. Each of the parties shall hereafter execute all
documents and do all that is necessary, convenient or desirable in the
reasonable opinion of any other party to effect the provisions of this
Agreement.
8. Integration. This Agreement memorializes and constitutes the entire
Agreement and understariding between the parties, and supersedes and replaces
all prior negotiations, proposed agreements and agreements, whether written or
unwritten, concerning the matters covered hereby. Each of the parties to this
Agreement acknowledges that no other party, nor any agent or attorney of any
other party has made any promises, representations, or warranties whatsoever,
expressly or impliedly, concerning the matters covered hereby which is not
expressly contained in this Agreement, and each party further acknowledges that
he/she/it has not executed this Agreement in reliance upon any collateral
promise, representation, warranty, or in reliance upon any belief as to any fact
or matter not expressly recited in this Agreement concerning the matters covered
hereby.
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9. Execution in Counterparts. The parties agree that this Agreement may be
executed in any number of counterparts so long as each signatory hereto executes
at least one such counterpart. Each such counterpart shall constitute one
original but all such counterparts taken together shall constitute one and the
same instrument.
10. Severability. Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the validity of the
remaining parts, terms, or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement.
NO FURTHER TEXT ON THIS PAGE
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This Settlement Agreement has been executed as of the date and year first
above written.
"Owner" "Contractor"
WINDSOR WOODMONT, LLC, X.X. XXXXXXXX & SONS, INC.,
a Colorado limited liability company a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxxxx, Manager, Xxxxx X. Xxxxxxxx, Xx,
Executive Vice President General Counsel
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