SETTELEMENT AGREEMENT AND RELEASE

E-mail: perezfranklin@hotmail.com


Place where Verified Complaint and Jury Demand was filed:
District Court, City and County of Denver, State of Colorado
Case Number 96 CV 6563
Courtroom 9

Plaintiff: Franklin Perez

Defendants:
THE COLORADO STATE PATROL; RANDY RAHNE, individually, and in his official capacity as a Colorado State Trooper; GERALD LINCOLN, individually, and in his official capacity as a Colorado State Trooper; and, TIMOTHY McCLINCHY, individually, and in his capacity as a Colorado State Trooper

Signers of the SETTLEMENT AGREEMENT AND RELEASE:
Franklin Perez, Plaintiff (August 23, 1997)
Lietentant Colonel Gary L. Coe, Colorado State Patrol (August 29, 1998)
Clifford W. Hall, Colorado State Controller
Gregg E. Kay, Colorado State First Assistant Attorney General


SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release ("Agreement") is entered into this 23rd of August, 1997, by and between Franklin Perez (hereafter "Perez"), Plaintiff in Case No. 96 CV 6563, Denver District Court entitled Franklin Perez v. The Colorado State Patrol, Randy Rahne, Gerald Lincoln and Timothy McClinchy, (hereafter "Case No. 96 CV 6563") and The Colorado State Patrol, Randy Rahne, Gerald Lincoln and Timothy McClinchy (hereinafter the "State").

RECITALS

A.

Perez (hereafter sometimes referred to as "Plaintiff") commenced Case No. 96 CV 6563 which involves claims for damages against The Colorado State Patrol, [Randy] Rahne, [Gerald] Lincoln and [Timothy] McClinchy (hereafter sometimes referred to as "Defendants"), for claims relating to a traffic stop on December 7, 1995. Perez claimed various civil rights violations under Title 42 of United States Code as well as State claims for false arrest, negligent infliction of emotional distress, negligence, outrageous conduct, negligent supervision, negligent training and malicious prosecution.

B.

Defendants deny any wrongdoing or any liability of any nature whatsoever with respect to the claims, demands and charges asserted by Plaintiff and deny that Plaintiff suffered any injuries, damages or losses or is due any monies or suffered any other injuries or damage as Plaintiff claims.

C.
It is the desire of the parties to compromise and settle all disputed issues and claims between the parties that were made, could have been made, or are in any way related to the claims made in Case No. 96 CV 6563 and any claim that was made or could have been made as a result of the traffic stop on December 7, 1995, and to achieve a mutually acceptable resolution of the dispute between them without incurring the further expense, inconvenience, uncertainty and delay of litigation.

AGREEMENT

Now, therefore, in consideration of the mutual covenants and promises contained in this Agreement, Perez and the State agree as follows:

  1. Acknowledgment. The parties acknowledge that they are entering into this Agreement based upon their own investigation and in reliance on the representations contained in this Agreement and in reliance on their own counsel.

  2. Disclaimer. This Agreement does not constitute evidence of, or any admission of, any liability, omission, or wrongdoing of any kind, and it shall not be offered or received into evidence or otherwise filed or lodged in any proceeding against any party except as may be necessary to prove and enforce its terms. It is expressly understood and agreed that neither this Agreement nor any consideration provided pursuant to this Agreement are to be construed as an admission of liability on the part of Defendants or regarding any and all claims that were asserted in Case No. 96 CV 6563. To the contrary, Defendants have specifically denied any liability for any claims made by Plaintiff. It is further understood and agreed that the consideration referenced herein is in full accord and satisfaction of the disputed claims of Plaintiff as are more fully represented by the pleadings and other documents filed in Case No. 96 CV 6563 and any claim of any kind that has arisen out of the traffic stop on December 7, 1995.

  3. Cash Payment. Without admitting any liability to Plaintiff, Defendants shall pay to Plaintiff the sum of six thousand dollars ($6000.00) in the form of a State of Colorado Warrant made payable to Plaintiff. Said warrant shall be delivered upon the signing of this Agreement by Perez as soon thereafter as is practicable.

  4. Dismissal with Prejudice. Simultaneously with the final execution of this Agreement, Plaintiff pro se and Defendants, by their counsel of record in Case No. 96 CV 6563, shall execute a stipulation for dismissal with prejudice. The Stipulation will be filed with the Court immediately upon receipt by Plaintiff of the payment described in Section 3 hereof.

  5. A. Public Comment. Plaintiff and Defendants and their agents agree that they will not hold a press conference, issue a press release, or otherwise take affirmative steps to comment to the press or media, or publicize to any person or entity the settlement, the terms thereof or the allegation contained in the pleadings. The parties further agree not to engage in disparagement of the settlement.

    B. Private Comment. Plaintiff and Defendants agree that they will not disclose any of the terms of this Agreement to any person or entity unless ordered to do so by order of a court of competent jurisdiction, or as the result of an Open Records Act request. Except as may elsewhere herein provided, the parties may upon request, provide the case number and caption of Case No. 96 CV 6563, and state that all other matters relevant thereto including this Agreement, are subject to a confidentiality agreement.

    C. Open Records Act Exception. The parties understand and agree that upon a request pursuant to the Open Records Act, @ 24-72-201 et seq., C.R.S. (1988 & 1993), Defendants are obligated to provide the requesting person a copy of the Agreement.

    D. Enforcement. The parties expressly acknowledge and agree that any disparagement, comment or disclosure not expressly authorized by this Agreement concerning the Agreement, the parties, or allegations contained in the pleadings will have a serious and adverse effect on the parties, that such a breach will constitute a material breach of the entire Agreement, and a waiver of the provisions of this Section 5 of the Agreement. It is agreed by the parties that a breach of this Section will result in a presumption of irreparable harm for the purpose of injunctive relief. The parties shall be entitled to seek relief as may be available at law or equity for breach of the Agreement as provided in Paragraph 15 - Failure of Performance.

  6. Perez, his agents, successors and assigns, hereby forever release and discharge Defendants, in their official and individual capacities and any and all of their agents, servants, employees, successors, heirs, executors, administrators and assigns and any agencies, departments, divisions and employees, servants and agents of the State of Colorado, from any and all claims, injuries, demands, causes of actions, liabilities, legal claims, expenses or damages of whatever kind, nature or description whether known or unknown, suspected or unsuspected or hereafter discovered, whether in law or in equity, upon contract or tort, or under state or federal law or laws, or under common law or otherwise which he may have had, now has, or hereafter may have, or claim to have, or assert against them as a result of any actions or omissions of Defendants and all of their employees, agents and assigns, their heirs, and successors which occurred or could have occurred on or prior to the date of this Agreement which relate in any manner to the traffic stop on December 7, 1995, which shall include, but not be limited to, claims for state tort, civil rights violations, including but not limited to any claims under 42 U.S.C. @ 1983, negligence, outrageous conduct, false arrest, negligent infliction of emotional distress, outrageous conduct, negligent supervision, negligent training, malicious prosecution or punitive damages. This release specifically includes any claim that has or could have been brought in Case No. 96 CV 6563.

  7. Intent. It is the express intent of Perez that this agreement discharge all claims that we may have against Defendants, operate as a bar to any subsequent proceedings, whether known or unknown, existing now or in the future, pertaining to any claim arising from the traffic stop on December 7, 1995. Plaintiff realizes that he may have sustained or incurred unknown or unforeseeable bodily, personal or psychological injuries, damages to property, business or other losses, costs, expenses, damages, liabilities or claims, and the consequences thereof, which may or will result from the traffic stop on December 7, 1995 and any actions of the defendants in their individual or official capacities, up to the date of the execution of this Agreement. Perez expressly undertakes and assumes the risk that the settlement and underlying execution of this Agreement was made on the basis of mistake or mistakes, mutual or unilateral, as to the nature, extent, effects or consequences of any known or unknown, suspected or unsuspected, present or future, underlying losses or damages.

  8. Governing Law. This Agreement and all performances hereunder shall be governed by the laws of the State of Colorado.

  9. Costs and Expenses. Each party agrees that he shall bear his own costs, expenses and attorneys fees incurred in connection with Case No. 96 CV 6563.

  10. Integration. This Agreement constitutes the entire agreement of the parties and all prior representations and discussions are merged and incorporated herein. This Agreement may not be amended absent a writing evidencing such an amendment executed by both parties.

  11. Waiver. No waiver of any covenant or obligation of this Agreement shall be effective unless contained in a writing signed by the party against whom such waiver is asserted.

  12. No Prior Assignment. Plaintiff represents and warrants to Defendants that he is the sole and lawful owner of all right, title and interest in and to every claim and other matter that the Plaintiff puprports to release or compromise by this Agreement and that the Plaintiff has not previously assigned or transferred, either by act or operation of law, to any party or entity, any claim or other matters released by this Agreement. In the event that Defendants are subjected to further claim by any person, firm, corporation or other entity, acting under any actual or purported lien, right or subrogation, or assignment, the Plaintiff whose claim such person asserts will indemnify and hold defendants harmless from any such claim or demand.

  13. Prohibition Against Assignment. The obligations, or any of them, of the parties to this Agreement shall not be assigned or delegated without the express consent of the parties.

  14. Notice. Any notice required by this Agreement shall be made in writing to the Plaintiff, pro se and to the Defendants.

  15. Failure of Performance. If a party at any time fails to perform its obligations under this Agreement and any other party seeks to or obtains judicial assistance in enforcing such obligations, the party or parties against whom the provisions are sought to be enforced shall pay, in addition to any damages, attorneys fees and related costs of enforcement if the party seeking enforcement is successful in obtaining the relief which it seeks in such judicial action.

  16. Representation. All parties acknowledge and represent that in negotiating this Agreement and the terms of this Agreement, they have been represented by and have conferred with legal counsel. Plaintiff represents and warrants that he has carefully read this Agreement, he understands its contents and that he has executed it as his own free and voluntary act.

  17. Authorization. Plaintiff represents and warrants that he is legally competent to execute this Agreement and assumes full responsibility for and assumes the risk of all mistakes in fact or law regarding any damages, losses or injuries, whether disclosed or undisclosed sustained as a result of any and all claims and incidents giving rise to the allegations in Case No. 96 CV 6563.

  18. Approval. This Agreement shall not be deemed valid until it is approved by the Controller of the State of Colorado or such assistant as he may designate. This provision is applicable to any contract involving the payment of money by the State of Colorado.


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