modified mutual agreement & releaes regarding … · web viewb.dbe, rr and dewey beach,...

Subject to Delaware Rule of Evidence 408February 16, 2011

AMENDED MUTUAL AGREEMENT & RELEASE

This Amended Mutual Agreement & Release (the “Agreement”), is made and entered into as of this ___ day of February, 2011, by and between Dewey Beach Enterprises, Inc., successors and assigns, (“DBE”), Ruddertowne Redevelopment, Inc., successors and assigns, (“RR”) and the Town of Dewey Beach, Delaware (“Dewey Beach” or the “Town”).

A. DBE owns three contiguous parcels of land in Dewey Beach, zoned for commercial and/or structures of commercial and mixed uses, and these parcels encompass at least 80,000 square feet of land (the “Property” or “Ruddertowne”);

B. DBE, RR and Dewey Beach, including Commissioner Diane Hanson, former Commissioners Richard Hanewinckel and Dell Tush, David King, a member of Planning & Zoning, and the Town Board of Adjustment (collectively, “The Town”) are involved in civil matters filed by DBE against the Town over the use of the Property, including the following matters, (collectively, the “Litigation”):

(1) Dewey Beach Enterprises, Inc. and Ruddertowne Redevelopment, Inc. v. Town of Dewey Beach, Dell Tush, David King, Diane Hanson and Richard Hanewinckel, C.A. No. 09-507 (GMS).

(2) Dewey Beach Enterprises, Inc. v. Town of Dewey Beach, Commissioners of Dewey Beach, Dell Tush, Marc Appelbaum, Richard Hanewinckel, Diane Hanson and Marty Seitz, C.A. No. 4426-VCN.

(3) Dewey Beach Enterprises, Inc. v. Town of Dewey Beach, Commissioners of Dewey Beach, Mayor Richard N. Solloway, Marc Appelbaum, Diane Hanson, James Przygocki, and Marty Seitz, C.A. No. 5833-VCN.


(5) Dewey Beach Enterprises, Inc. v. Town of Dewey Beach, Commissioners of Dewey Beach, Mayor Richard N. Solloway, Marc Appelbaum, Diane Hanson, James Przygocki, and Marty Seitz, C.A. No. 5711.

C. DBE, RR and the Town desire to resolve the Litigation through the Town’s recognition that DBE filed a building permit application on April 4, 2008 for the redevelopment of Ruddertowne (hereinafter “building permit”) following the adoption of the Dewey Beach Comprehensive Plan (hereinafter “Comprehensive Plan); and prior to the adoption of the amended Dewey Beach Zoning Code.

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NOW, therefore, in the interest of resolving and settling the Litigation, the parties hereto agree as follows:

(1) DBE shall be permitted to construct a structure (hereinafter “Structure”) of mixed commercial and residential uses under its zoning applicable to its contiguous tracts consisting of at least 80,000 square feet as follows:

Hotel and Condominium Unit Density:

a. Maximum 120 residential condominium units (20 of which could be made available for hotel use by DBE),

b. The ground (first floor) shall be comprised of any retail/service type uses as permitted by applicable laws (e.g., spa, gym, restaurant, public attractions, ice-skating rink, bowling alley, parking and hotel).

c. For every six hotel units up to the maximum permitted of 90 units, the number of maximum condo units shall reduce by one. Thereby allowing the total number of combined residential units and commercial hotel units (if the maximum number of hotel units being 90 is utilized) to be 90 hotel units and 105 residential condominium units.

(2) Height: Height shall be defined as the vertical distance from grade elevation to the highest point of the Structure. Grade elevation shall be the elevation of the crown of U.S. Route 1 abutting the center of the parcel. The height of the Structure shall not exceed 45.67 feet. Except as specifically provided in this Agreement, DBE and RR voluntarily agree to not seek any additional Structure height above 45.67 feet from the Town, a court, or any other governmental or private entity, and voluntarily agree to enter into a deed restriction limiting Structure height to 45.67 feet, and further prohibiting any owner or owner’s agent from pursuing increased height unless the zoning laws of the Town then in effect and applicable to the Structure permit a Structure height in excess of 45.67 feet measured as described in this paragraph. Exceptions to the 45.67 foot height limitation include plumbing vents required by code [all chimneys and stand pipes required to comply with fire code], but they shall not exceed 24 inches above the 45.67 feet height limitation. [Additional exceptions to the 45.67 feet height limitation include elevator bulkheads where required for safety, and air handling systems (appropriately screened) and alternative energy system when appropriately set back from roof edges so as not to be visible from the street. Elevator bulkheads, air handling systems and alternative energy systems shall not exceed 42 inches above the 45.67 feet height limitation.]

(a) The structure shall be limited to a parking level at or below current grade and four floors above the parking level. The finished floor elevation of the lowest floor shall be elevated to a height that is at least one foot above the base flood elevation.

(3) Voluntary Amenities Provided By DBE:

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a. Convention Center of at least 5,000 square feet (contingent upon hotel use being established by DBE).

b. Dedicated 1st floor town space (“Town Space”) of at least 3,000 square feet dedicated to the Town for purposes to be determined by the Town. DBE agrees to voluntarily provide a twenty dollar ($20.00) per square foot allowance for the fit-out of the Town Space. Any approvals or permits that may be required for the use of the Town Space shall be obtained by the Town and not DBE.

c. Bay Walk serving as a continuous exterior walkway from Van Dyke Avenue to Dickinson Avenue along the Rehoboth Bay that may be publicly accessed without restriction at all times (this may include space currently, or in the future, licensed for use by the restaurants as well). The Bay Walk shall be 12 feet or more in width, and shall be compliant with the Americans with Disabilities Act. Subject to DNREC approval as well as any other required approval of any other county, state or federal agency, the Bay Walk shall include a Gazebo 500 square foot in size with seating, which shall serve as a focal point along the Bay Walk. If DBE and the Town cannot obtain the requiredDNREC approvals for a 500 square foot Gazebo, DBE agrees to construct a 250 square foot Gazebo at a location not subject to approval by DNREC or any other agency which has jurisdiction over the original location of the Gazebo.regulated by DRNEC. The Bay Walk shall be maintained by DBE. The existing beach frontage along Que Pasa and the jet ski rental location shall serve as the Bay Walk along this area of the DBE property, and shall be no less than 12 feet in width. DBE shall not install any fixed tables or fixed seating in the Bay Walk, and the entire width and length of the Bay Walk shall remain unobstructed, walkable, and accessible by the public at all times. The Town shall assist and otherwise act in good faith with DBE in obtaining DNREC approval for the Bay Walk (including the Gazebo) from DNREC and any other county, state or federal agency from which approval might be required. In the event the requiredDNREC approvals cannot be obtained in whole or in part, DBE shall complete construction of the Bay Walk in the area closest to the Bay not requiring DNREC approval. The Bay Walk shall be constructed prior to the issuance of the Certificate of Occupancy for the main structure, and shall be constructed in accordance with all applicable state and federal regulations.

d. The rooftop shall be accessible to the public by way of a pool/café or some other approved-by-the-Town and voluntarily-agreed-upon attraction, which will be owned and operated by DBE. Any such attraction must be approved by the Town Commissioners with the recommendation of the Planning Commission. Any accessory item approved by the Town and necessary to create this attraction shall not be included in the height limitations contained in Paragraph 2 (e.g., railings/canopies).

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e. DBE voluntarily agrees to establish a two street total of not less than sixty (60) median parking spaces within the Dickinson Avenue and Vandyke Avenue rights of way roadways contiguous to its building [on the north end] at its cost and subject to Town approval. All such parking shall be included in DBE’s building permit parking calculation, but shall be owned and controlled by the Town. DBE agrees to construct the median parking spaces prior to Memorial Day 2011.

f. A minimum of 85 publically accessible parking spaces within the main complex, which shall be subject to charge by DBE at a rate equal to or higher than the rate charged by the Town, and a minimum of 15 parking spaces within the main complex, dedicated as parking spaces for Town use at no charge to the Town.

g. DBE voluntarily agrees to provide a total 500 square feet dedicated to public restrooms.

(4) DBE voluntarily agrees to post a performance bond(s) for any and all infrastructure improvements for the project, including sewer, water, electric, stormwater, and roadways (including associated sidewalks). The performance bond shall be in an amount equal to 100 % of the cost to construct the infrastructure as certified by a Delaware Professional Engineer, and shall be in a form generally accepted in Delaware by zoning authorities with specific details to be finalized by DBE and the Dewey Beach Town Manager, subject to legal approval as to legal form by the Dewey Beach Town Solicitor. Upon certification that the infrastructure improvements are complete and in good repair, the Town Manager shall release the bond(s) and accept the improvements. The Town Manager shall establish a bond schedule with DBE and provide for reasonable partial releases as each specific infrastructure item is completed by DBE.

(5) This project structure of mixed commercial and residential use shall be subject to the mixed use provisions of the former Dewey Beach Zoning Code and Comprehensive Development Plan, taking into account the dates of DBE’s building permit application.

(6) Building permit fees shall be applicable.

(7) The Code of the Town of Dewey Beach establishes that building permits shall be valid for one year from date of issue, and may be renewed one time for one additional year for a fee of $50.00, provided renewal is applied for prior to expiration date. In extraordinary circumstances, an additional renewal may be allowed subject to Commissioners’ approval. Due to the lot size of the Property proposed for redevelopment by DBE and Comprehensive Development Plan language to that effect, any building permit issued pursuant to Paragraph 8 below shall be valid for three (3) years from date of issue and may be renewed two times for one additional year each for a fee of $50.00, provided renewal is applied for prior to expiration date. An additional one year renewal may be allowed subject to Town Commissioners’ approval.

(8) Plan & Building Permit Approval Process:

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a. The process shall include: (i) execution of this Agreement by the Town Manager; (ii) review of this Agreement by the Town Commissioners in Executive Session for legal advice; [and, based upon the legal standards applicable to DBE in light of the date of its Building Permit application, discuss what the Town Commissioners believe may be the appropriate standards applicable to DBE’s pending (iii) three (3) public workshops to explain DBE’s proposed structure and amenities to the public (DBE shall prepare and make available for advance inspection by the Town Commissioners renderings of sufficient size, quality, and quantity to be presented at the public workshops and to fairly represent to the Town Commissioners and interested public the proposed Structure and surrounding development); (iv)] (iii) a public hearing held by the Town Commission to take public testimony regarding DBE’s plan and pending building permit application (“Hearing One”); (iv) [(v)] a Special Town Meeting immediately following such public testimony to approve or deny the plan and building permit application by a majority vote based upon applicable law given the date of DBE’s building permit (hereinafter “Special Town Meeting”) (During the Special Town Meeting the Ruddertowne Architectural Committee’s (RAC) recommendation and report to the Town Commission (“RAC Recommendation”) shall be considered by the Town Commission, and the Town Commission’s vote, if positive, shall also include a ratification of the RAC Recommendation as may be specifically modified by the Town Commission); (v) (vi) at the Special Town Meeting, if approval is granted, the Ruddertowne Redevelopment Project shall be referred to the Planning Commission and DBE shall provide final construction plans for review to the Planning Commission. Review of final construction plans by the Planning Commission shall be for the sole purpose of: (1) making a recommendation to the Town Commission as to whether the final construction plans are consistent with the Town Commission’s plan and building permit approval at the Special Town Meeting, [(2) making a recommendation to the Town Commission regarding the Rooftop Uses at Ruddertowne,] [(3)] (2) making a recommendation regarding the use of the voluntarily dedicated Town Space (and uses therein); and [(4)] (3) making a recommendation regarding the Gazebo and Bay Walk; (vi[i]) a final public hearing (“Hearing Two”) by the Town Commissioners to review the Planning Commission’s recommendations provided for herein and make a final decision regarding whether the final construction plans satisfy the conditions of the approved plan and building permit and the voluntarily amenities (or other voluntary assurances) agreed to by DBE at the Special Town Meeting. If the final construction plans are consistent with the Special Town Meeting approval of the plan and building permit granted by the Town Commissioners and representations of DBE made at the public hearings provided for herein, the Town Commission, after consideration of the recommendations of the Planning Commission provided for herein, shall grant all final Town approvals by a majority vote. At Hearing Two the Town Commission shall, subject to the provisions of this Agreement, also make a final decision regarding [DBE’s Permitted Rooftop Uses, if any,] the location and size of the Gazebo (not to exceed the maximum

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size provided for in Paragraph 3(c) herein), the Bay Walk, and the uses within the Town Space. Upon final approval DBE’s plan shall than be recorded as a matter of public record.

b. Schedule. Provided that weather conditions permit, a quorum is available, meeting space is available, and the proper public notice has been provided, the schedule shall be:

(i) Prior to December 11, 2010 -- execution of this Agreement by the Town Manager, DBE and RR;

(ii) December 11, 2010 -- review of this Agreement by the Town Commissioners in Executive Session for legal advice and, based upon the legal standards applicable to DBE in light of the date of its building permit application, discuss what the Commission believes may be the appropriate standards applicable to DBE’s pending application. Announce to the public that this Agreement has been executed and is contingent upon approval by the Town Commission. After the announcement, correspondence providing public workshop dates shall be prepared and sent to the public;

January 8, 2011, at 2:00 pm – First public workshop

January 15, 2011, at 10:00 am – Second public workshop

January 20, 2011, at 6:00 pm – Third public workshop

(iii) January 15, 2011, at 2:00 p.m. -- First public workshop;

February 3January 15, 2011, at 6:00 p.m.10:00 am – Second public workshop

February 5January 20, 2011, at 10:00 a.m.6:00 pm – Third public workshop/public hearing;]

(iv) February 26, [5] 2011 (Hearing One)-- public hearing held by the Town Commission to take public testimony regarding DBE’s proposed Structure, surrounding development, and pending building permit application. This date shall also serve as a make up date for any public workshop that may not have been held as provided above. In such a case, the workshop shall be held prior to the public hearing;

(v) February 26 [5], 2011 – (Special Town Meeting) A Special Town Meeting immediately following the February 26 [5], 2011 public hearing to approve or deny DBE’s proposed Structure, surrounding development, plan and building permit application. The building permit approval shall be subject to the Building Official’s recommendation to the Town Commissioners as to compliance with applicable sections

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of the Dewey Beach Code and Comprehensive Plan. DBE may agree to waive the requirement that the Town Commissioners approve or deny DBE’s proposed Structure, surrounding development, plan and building permit application during the Special Town Meeting for a period of fourteen days shall have right to obtain one continuance at the Special Town Meeting due to any unforeseen circumstances that may arise during the Special Town Meeting. If the Town Commission approves DBE’s plan and building permit, the Town Commission shall refer the matter to the Planning Commission for a recommendation to the Town Commissioners regarding the proposed Gazebo, Bay Walk, and restrooms, dedicated Town Space (and uses therein), and whether the construction plans are consistent with the application presented by DBE subject to the provisions of this Agreement. [and Roof Top Uses]. The Planning Commission shall also make a recommendation as to whether the construction plans are consistent with the application presented by DBE at the Special Town Meeting.

(vii) [February 25, 2011 (Hearing Two)] A Town Meeting (Hearing Two) to accept or reject, in whole or in part, the Planning Commissions’ recommendations regarding the consistency of the construction plans with the application presented at the Special Town meeting by DBE, the Gazebo, the Bay Walk, restrooms, dedicated and the Public Town Space (and uses therein) a n d whether the construction plans are consistent with the application presented by DBE. [and the Roof Top Uses.] A final decision as to the Gazebo, Bay Walk, restrooms, dedicatedand Public Town Space (and uses therein), and whether the construction plans are consistent with the application presented by DBE [and Roof Top Uses] shall be made at this meeting. In order to give the Planning Commission sufficient time to review the plans and building permit, as well as sufficient time to make a recommendation to the Town Commissioners, this final hearingHearing Two shall be held no sooner than ninety (90) days ), and no later than 120 days, following Hearing One (i.e., February 26, 2011). [on or before March 15, 2011.]

(9) Restrictive Covenants

(a) No Gambling. DBE voluntarily agrees to prohibit all Gambling upon the Property, and any other property in the Town in which DBE now has an ownership interest or acquires an ownership interest in the future it may acquire in the future in the town , in perpetuity through a recorded covenant for the Town’s benefit. The term “Gambling” shall include: “Gaming of any kind whatsoever, including, but not limited to, video lotteries, sports lotteries, wagering or betting by the use of pari-mutuel machines or totalizators on horse races.”

(b) In the event DBE , any of its partners, or any artificial entity in which a DBE partner has an ownership interest, were to acquire any additional property in the town, DBE

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DBE and its partners voluntarily agree s it would not seek any building height above the Town’s building height limitation contained in the Town’s zoning code.

(10) This Agreement shall be binding upon the parties to this agreement, their successors and assigns.

(11) RELEASE BY DBE AND RR

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, DBE and RR do hereby release, remise, acquit and forever discharge the Town and its principals, agents, partners, Commissioners, officials, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, insurers, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which it may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from their relationship with Dewey Beach and/or any of its predecessors interests which are, or could have been, the subject of any litigation and against the Town which DBE has ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against DBE or RR by Dewey Beach, its principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b) It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by DBE or RR against the Town arising out of any action previously taken by the Town or any of its predecessors-in-interests in connection with any of DBE’s or RR’s dealings with the Town.

(c) DBE and RR hereby further declare and represent that no promises, inducements, representations or agreements not expressly stated herein have been made to them except as set forth herein, and that this Release contains the entire agreement between them and the Town in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

(d) If they have not already done so, upon approval of this Agreement by the Town Commission of Dewey Beach, all Defendants named in their personal capacities in the

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Litigation shall have fifteen (15) days to execute the applicable release attached hereto as Exhibit A. DBE and RR shall execute the applicable release for each Defendant named in their personal capacities in the Litigation that executes the applicable release.

(12) RELEASE BY THE TOWN

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods , the Town does hereby release, remise, acquit and forever discharge DBE and RR, and their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, insurers, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which it may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from their relationship with DBE and/or any of its predecessors interests which are, or could have been, the subject of any litigation against DBE or RR which the Town ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against Dewey Beach by DBE or RR, its principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which it may be associated.

(b). It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by the Town against DBE or RR arising out of any action previously taken by DBE or RR or any of their predecessors-in-interests in connection with any of the Town’s dealings with DBE or RR.

(c) Dewey Beach hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to it them except as set forth herein, and that this Release contains the entire agreement between it and DBE and RR in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

(13) VOLUNTARY INDEMNIFICATION BY DBE

(a) DBE shall indemnify, defend and hold the Town harmless the Town against any claim brought against the Town, its Commissioners, officers, employees,

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officials or board membersvolunteers by any third party to the extent the claim is based upon any action taken by the Town, its principals, agents, partners, Commissioners, officials, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, insurers, and predecessors-in-interests directly or indirectly related to the review, consideration, or approval of the building permit and plan contemplated herein for DBE's Ruddertowne redevelopment project. By example, and not intended to create any limitation upon the indemnified claims, indemnified claims include:

Claims related to the review, consideration, or approval of the building permit plan contemplated herein for DBE’s Ruddertowne redevelopment project, regardless of whether the claim, if successful, could halt or alter DBE's Ruddertowne redevelopment Town-approved permit or plans.

Constitutional equal protection claims and other constitutional claims involving height, hotel use, or any other dimensional characteristic or use.

Claims related to the review, consideration, or approval of the building permit plan contemplated herein for DBE’s Ruddertowne redevelopment project, regardless of whether the claim involves a request for monetary damages and regardless of whether the claim is an insured claim under any insurance policy held by the Town or DBE.

Legislative, procedural, administrative, substantive, and other claims related to the review, consideration, or approval of the building permit plan contemplated herein for DBE’s Ruddertowne redevelopment project, including but not limited to claims initiated in a court of the State of Delaware, a federal court, the Delaware Public Integrity Commission, and Freedom of Information Act claims filed in the Delaware Office of the Attorney General.

(b) This indemnification is subject to the following limitations: (i) prompt and timely written notice by the Town to DBE of any claim, action or demand for which indemnity will be claimed by the Town; (ii) reasonable Town cooperation with DBE in defending against any claim; and (iii) a maximum five year period of coverage beginning on the date of plan and building permit approval by the Town Commissioners; and (iv) as to any claims which do NOT directly touch and concern DBE’s Ruddertowne redevelopment project, or, if successful, would NOT halt or alter DBE's Ruddertowne redevelopment Town-approved permit or plans: for claims consisting entirely of claims for nonmonetary relief, or for which no insurance is available, DBE will pay a maximum of $250,000. For each such claim for which insurance coverage is available, DBE will pay any deductible or self-insured retention owed by the Town, up to a maximum of $250,000. for claims consisting entirely of claims for non monetary relief,

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or for which no insurance is available, DBE will pay a maximum of $250,000. For each such claim for which insurance coverage is available, DBE will pay any deductible or self-insured retention owed by the Town, up to $250,000. In the event of any claim(s), DBE agrees to pay the Town’s insurance deductable amount or a maximum total amount of $250,000, whichever is less. (nder no circumstances will

(c) DBE’s maximum total indemnification obligation under this Paragraph 13 shall not exceed exceed a total of $250,000 under any circumstances.

(c) (d) This indemnification shall not cover any claims that may be brought against the Town , its Commissioners, officers, employees, officials, or volunteersboard members by or with the substantialmaterial assistance of any of its Commissioners, officers, or employees officials, or volunteers board members.

(d) (e) For purposes of this section, "indemnify the Town against any Claim" means losses, actions, liabilities, damages, expenses (including attorney’s fees) and court costs. For a claim to be subject to the indemnification provisions of this Paragraph 13, the claim must arise from an act or behavior which postdates the execution date of this Agreement.occurs on or after December 6, 2010.

DBE shall indemnify, defend and hold the Town harmless against claims brought against the Town, its Commissioners, officers or employees by any third party to the extent those claims are based upon allegations related to the approved building permit and plan contemplated herein for DBE's Ruddertowne redevelopment project. Indemnified claims must touch and concern DBE's Ruddertowne redevelopment project building permit or plan, or, if otherwise successful, could halt or alter DBE's Ruddertowne redevelopment Town-approved permit or plans. The foregoing obligations are conditioned upon: (a) prompt written notice by the Town to DBE of any claim, action or demand for which indemnity is claimed; (b) final decisions regarding defense strategy and settlement thereof by DBE, including the choice of the lawyer or law firm providing representation, provided that no settlement of an indemnified claim shall be made without the consent of the Town, such consent not to be unreasonably withheld or delayed; and (c) non-financial cooperation by the Town in the defense as DBE may request. For purposes of this section, "Claims" means losses, actions, liabilities, damages, expenses (including attorney’s fees) and court costs.

(14) CONTROLLING LAW

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This Agreement is governed by the laws of the State of Delaware, and any action relating to it shall solely be brought in the State of Delaware.

(15) ADVICE OF COUNSEL

This Agreement is entered into by all parties freely, with their full consent, under no duress or undue influence, with the parties having been fully informed of all provisions of this Agreement and with the intent to be fully bound by it. All parties expressly acknowledge that they have had a full and ample opportunity to receive the advice of counsel with respect to the negotiation and execution of this Agreement, and that they fully understand the terms and conditions of this Agreement.

(16) ENTIRE UNDERSTANDING

This Agreement contains the entire understanding between the parties hereto and no party hereto shall be bound or liable in any way for any other representation, undertaking, warranty, assurance or promise expressed or implied except as fully set forth herein.

(17) MISCELLANEOUS

(a) Time is of the essence in connection with any act, undertaking or matter to be performed under this Agreement.

(b) Should any section or provision of this Agreement be held void or unenforceable, such unenforceability shall not affect the validity of the remaining provisions of this Agreement.

(c) This Agreement may not be modified, revised, altered, amended, or terminated except by a writing executed by all of the parties hereto.

(d) This Agreement is intended by the parties to be their final expression of their agreement with respect to the subject matter hereof, and is intended as a complete and exclusive statement thereof.

(e) The covenants, conditions, representations, and warranties set forth in this Agreement shall survive the execution and delivery of this Agreement.

(f) This Agreement may be executed in counterparts.

(g) This Agreement is intended to be executed under seal, and is assignable.

(h) All zoning related approvals provided for in this Agreement are strictly subject to approval by the Town Commissioners as contemplated herein, and the Town Manager’s signature shall not be a substitute for any such zoning approvals that must be obtained by DBE pursuant to the terms of this Agreement. If such zoning approvals are not obtained pursuant to Paragraph 8 of this Agreement, this Agreement shall be of no force or effect.

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(i) If final approval by the Town is granted, subject to the provisions of Paragraph 8 of this Agreement, this Agreement shall be made part of a consent order filed with a Delaware and federal court. All Litigation shall be dismissed with prejudice as permitted by court rules subject to the expiration of any applicable appeal periods regarding the building permit and final Town approval of the Ruddertowne project as contemplated in this Agreement, and all other terms and conditions of this Agreement. In the event that any individual defendant in the Litigation named in his or her personal capacities refuses to execute the Release, DBE reserves the right to continue in such Litigation against the individual defendant(s) only. In the event of an appeal, all dismissals shall be subject to the final result of any such appeal, and in the case of any successful appeal no final dismissal of any Litigation shall occur. Any waivers necessary by either party that may be needed to satisfy this Paragraph shall not be withheld. If a Town Commission approval and final approval of a plan and a building permit being issued under the terms and conditions of this Agreement is not obtained as contemplated herein, then DBE reserves the right to terminate this Agreement in full and it shall thereafter have no legal force or effect as to either party whatsoever.

(j) Breach of agreement. In the event of a breach of this Agreement by any party, the non breaching party shall be entitled to all remedies at law and in equity. The prevailing party shall be entitled to recover all costs and all reasonable attorneys’ fees. If an appeal is filed by either party, such costs and reasonable attorneys’ fees shall not be due until the appellate process is final.

(k) This Agreement shall also incorporate by reference the letter sent to DBE by William Mears on October 29, 2010, confirming the revised date that a building permit must be obtained by DBE for the Property. If final approval is obtained by DBE, the approved building permit for the entire project shall be extendable as provide in Paragraph 7. In order to provide sufficient time for DBE to make modifications to its building permit application as may be necessary following the Town Commissioners’ final review at Hearing Two, the date by which DBE is required to obtain its building permit is hereby extended to thirty (30) [the seventh business] days following final approvalHearing Two, as provided in Paragraph 8 of this Agreement.

(l) No Vested Rights. The Parties agree that time and money expended in pursuit of the plans and renderings contemplated by this Agreement cannot be used to support any vested rights, or equitable estoppel claim in the Litigation or any future litigation, and nothing in this Agreement shall be construed to provide DBE any vested rights to develop the Ruddertowne redevelopment project. This paragraph 17(l) shall survive termination of this Agreement. Further, the releases provided for in this Agreement (and attached hereto) shall be held in escrow and shall only become enforceable upon the Town’s approval of DBE’s plan, the Town’s issuance of the building permit to DBE as contemplated herein, and the expiration of any applicable appeal periods.

(m) WITH THE EXCEPTION OF THE PLAN & BUILDING PERMIT APPROVAL PROCESS PROVIDED IN PARAGRAPH 8 OF THIS AGREEMENT, WHICH SHALL BE IMPLEMENTED UPON THE EXECUTION OF THIS AGREEMENT BY THE DEWEY BEACH TOWN MANAGER, THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON ITS APPROVAL BY A MAJORITY VOTE OF THE DEWEY BEACH TOWN COUNCIL.

(n) In the event the Dewey Beach Town Commission does not grant full and final approval ofe DBE’s plan and issue DBE a building permit, or in the event such approvals are reversed in whole or in part by a court, this Agreement shall be null and void (including, but in no way limited

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482483484485486487488489490491492493494495496497498

499500501502503504505506507508


to, all indemnification provisions contained herein) and nothing in this Agreement shall be admissible against either party in regard to the pending Litigation or any future litigation, provided, however, that paragraph 17(l) shall remain in effect. Furthermore, in the event the Dewey Beach Town Commission does not approve DBE’s plan and issue it a building permit, or in the event such approvals are reversed in whole or in part by a court, the releases provided for in this Agreement (and attached hereto) shall become null and void.

[SIGNATURE PAGE FOLLOWS]

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509510511512513514515516517

518

519


IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed under seal this Agreement, as of the day first above written.

DEWEY BEACH ENTERPRISES, INC.

By: (Seal)

WITNESS/ATTEST _________________________

RUDDERTOWNE REDEVELOPMENT, INC.

By: (Seal)

WITNESS/ATTEST _________________________

TOWN OF DEWEY BEACH, DELAWARE

By: (Seal) Diana Smith, Town Manager

WITNESS/ATTEST

Dated:

APPROVED BY A MAJORITY VOTE OF THE DEWEY BEACH TOWN COUNCIL ON THIS ____ DAY OF ____________________, 2011.

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536537538

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TOWN OF DEWEY BEACH, DELAWARE

By: (Seal) Mayor Diane Hanson

WITNESS/ATTEST

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548

549

550551552

553

554


EXHIBIT A

MUTUAL RELEASE BETWEEN

MAYOR DIANE HANSON AND DEWEY BEACH ENTERPRISES, INC. AND RUDDERTOWNE REDEVELOPMENT, INC.

WHEREAS, Dewey Beach Enterprises, Inc., (“DBE”), and Ruddertowne Redevelopment, Inc. (“RR”), and the Town of Dewey Beach (“Dewey Beach” or “Town”), including Mayor Diane Hanson, former Commissioners Richard Hanewinckel and Dell Tush, David King, a member of Planning & Zoning, and the Town Board of Adjustment (collectively, “The Town”) are involved in civil matters filed by DBE against the Town over the use of DBE’s Property, including the following matters, (collectively, the “Litigation”):






WHEREAS, DBE and the Dewey Beach Town Manager executed a Mutual Agreement & Release (the “Agreement”) on the ______ day of __________, 2010 that was expressly contingent upon the final adoption of the Agreement by a majority vote of the Town Council for the Town of Dewey Beach (“Dewey Beach” or “Town”); and

WHEREAS, the Town Council for the Town of Dewey Beach adopted the Agreement by a majority vote on the ______ day of __________, 2010.

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555

556

557558559560561562563564565566567568569570571572573574575576577578579580581582583584585586587588

589590591

592

593

594


WHEREAS, the Agreement provides that upon its approval by the Town Council of Dewey Beach, all Defendants named in their personal capacities in the Litigation shall have fifteen (15) days to execute a release and that DBE shall execute a mutual release for each Defendant named in their personal capacities in the Litigation that executes the release.

NOW THEREFORE, in the interest of resolving and settling all the Litigation between the parties, DBE, RR, and Mayor Diane Hanson agree as follows:

RELEASE BY DBE AND RR

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, DBE and RR do hereby release, remise, acquit and forever discharge Mayor Diane Hanson and her principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which she may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from its relationship with Mayor Diane Hanson and/or any of her predecessors interests which are, or could have been, the subject of any litigation against Mayor Diane Hanson which DBE or RR has ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against DBE or RR by Mayor Diane Hanson, her principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b) It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by DBE or RR against the Mayor Diane Hanson arising out of any action previously taken by Mayor Diane Hanson or any of her predecessors-in-interests in connection with any of DBE’s or RR’s dealings with Mayor Diane Hanson.

(c) DBE and RR hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to it except as set forth herein, and that this Release contains the entire agreement between it and Mayor Diane Hanson in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

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595596597598

599600

601

602

603604605606607608609610

611612613614615616617618619620

621622

623624625

626627628

629630


(12) RELEASE BY MAYOR DIANE HANSON

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, Mayor Diane Hanson does hereby release, remise, acquit and forever discharge DBE and RR, and their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which it may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from her relationship with DBE or RR and/or any of their predecessors interests which are, or could have been, the subject of any litigation against DBE which Mayor Diane Hanson ever had, now has, or which her executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against Mayor Diane Hanson by DBE or RR, their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which it may be associated.

(b). It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by Mayor Diane Hanson against DBE or RR arising out of any action previously taken by DBE or RR or any of their predecessors-in-interests in connection with any of Mayor Dian Hanson’s dealings with DBE or RR.

(c) Mayor Diane Hanson hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to her except as set forth herein, and that this Release contains the entire agreement between her and DBE and RR in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed under seal this Release on this ______ day of ________, 2011.

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631

632

633634

635636

637638

639640641642643644645646

647648649650651

652653654655656

657658

659660661

662

663664

665



By: (Seal)

WITNESS/ATTEST _________________________


By: (Seal)

WITNESS/ATTEST _________________________

MAYOR DIANE HANSON

(Seal)

WITNESS/ATTEST _________________________

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666

667

668

669

670

671

672

673

674

675

676

677

678

679

680

681

682

683

684

685

686

687

688



FORMER MAYOR DELL TUSH AND DEWEY BEACH ENTERPRISES, INC. AND RUDDERTOWNE REDEVELOPMENT, INC.










WM01/ 7852976.1 21

689690691692693694695696697698699700701702703704705706707708709710711712713714715716717718719720

721722723724

725

726

727

728729

730


NOW THEREFORE, in the interest of resolving and settling all the Litigation between the parties, DBE, RR, and Former Mayor Dell Tush agree as follows:


(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, DBE and RR do hereby release, remise, acquit and forever discharge Former Mayor Dell Tush and her principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which she may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from its relationship with Former Mayor Dell Tush and/or any of her predecessors interests which are, or could have been, the subject of any litigation against Former Mayor Dell Tush which DBE or RR has ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against DBE or RR by Former Mayor Dell Tush, her principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b) It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by DBE or RR against Former Mayor Dell Tush arising out of any action previously taken by Former Mayor Dell Tush or any of her predecessors-in-interests in connection with any of DBE’s or RR’s dealings with Former Mayor Dell Tush.

(c) DBE and RR hereby further declare and represent that no promises, inducements, representations or agreements not expressly stated herein have been made to them except as set forth herein, and that this Release contains the entire agreement between them and Former Mayor Dell Tush in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

(12) RELEASE BY FORMER MAYOR DELL TUSH

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731732733

734

735736737738739740

741742

743744745746747748749750751752

753754

755756757758759760

761762

763764

765

766

767


(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods , Former Mayor Dell Tush does hereby release, remise, acquit and forever discharge DBE and RR, and their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which it may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from her relationship with DBE or RR and/or any of their predecessors interests which are, or could have been, the subject of any litigation against DBE or RR which Former Mayor Dell Tush ever had, now has, or which her executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against Former Mayor Dell Tush by DBE or RR, their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b). It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by Former Mayor Dell Tush against DBE or RR arising out of any action previously taken by DBE or RR or any of their predecessors-in-interests in connection with any of Former Mayor Dell Tush’s dealings with DBE or RR.

(c) Former Mayor Dell Tush hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to her except as set forth herein, and that this Release contains the entire agreement between her and DBE and RR in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.



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768769770771

772773

774775

776777778779780781782783

784785786

787788789790791

792793

794795

796

797

798799

800

801

802


By: (Seal)

WITNESS/ATTEST _________________________


By: (Seal)

WITNESS/ATTEST _________________________

FORMER MAYOR DELL TUSH

(Seal)

WITNESS/ATTEST _________________________

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803

804

805

806

807

808

809

810

811

812

813

814

815

816

817

818

819

820

821

822



FORMER COMMISSIONER RICHARD HANEWINCKEL AND DEWEY BEACH ENTERPRISES, INC. AND RUDDERTOWNE REDEVELOPMENT, INC.










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823824825826827828829830831832833834835836837838839840841842843844845846847848849850851852853854

855856857858

859

860

861

862863

864


NOW THEREFORE, in the interest of resolving and settling all the Litigation between the parties, DBE, RR, and Former Commissioner Richard Hanewinckel agree as follows:


(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, DBE and RR do hereby release, remise, acquit and forever discharge Former Commissioner Richard Hanewinckel and his principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which she may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from their relationship with Former Commissioner Richard Hanewinckel and/or any of his predecessors interests which are, or could have been, the subject of any litigation against Former Commissioner Richard Hanewinckel which DBE or RR has ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against DBE or RR by Former Commissioner Richard Hanewinckel, his principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b) It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by DBE or RR against Former Commissioner Richard Hanewinckel arising out of any action previously taken by Former Commissioner Richard Hanewinckel or any of his predecessors-in-interests in connection with any of DBE’s or RR’s dealings with Former Commissioner Richard Hanewinckel.

(c) DBE and RR hereby further declare and represent that no promises, inducements, representations or agreements not expressly stated herein have been made to it except as set forth herein, and that this Release contains the entire agreement between them and Former Commissioner Richard Hanewinckel in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

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865866867

868

869870871872873874

875876

877878879880881882883884885886

887888889

890891892893894

895

896

897898

899900

901


(12) RELEASE BY FORMER COMMISSIONER RICHARD HANEWINKEL

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, Former Commissioner Richard Hanewinckel does hereby release, remise, acquit and forever discharge DBE and RR, and their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which they may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from his relationship with DBE or RR and/or any of their predecessors interests which are, or could have been, the subject of any litigation against DBE or RR which Former Commissioner Richard Hanewinckel ever had, now has, or which his executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against Former Commissioner Richard Hanewinckel by DBE or RR, their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b). It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by Former Commissioner Richard Hanewinckel against DBE or RR arising out of any action previously taken by DBE or RR or any of their predecessors-in-interests in connection with any of Former Commissioner Richard Hanewinckel’s dealings with DBE or RR.

(c) Former Commissioner Richard Hanewinckel hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to him except as set forth herein, and that this Release contains the entire agreement between him and DBE and RR in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.


WM01/ 7852976.1 27

902

903904905

906907

908909

910911912913914915916917

918919920921922

923924925926927

928

929

930931932933

934

935936

937



By: (Seal)

WITNESS/ATTEST _________________________


By: (Seal)

WITNESS/ATTEST _________________________

FORMER COMMISSIONER RICHARD HANEWINKEL

(Seal)

WITNESS/ATTEST _________________________

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938

939

940

941

942

943

944

945

946

947

948

949

950

951

952

953

954

955

956

957



DAVID KING AND DEWEY BEACH ENTERPRISES, INC. AND RUDDERTOWNE REDEVELOPMENT, INC.









WHEREAS, the Agreement provides that upon its approval by the Town Council of Dewey Beach, all Defendants named in their personal capacities in the Litigation shall have fifteen

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958

959960961962963964965966967968969970971972973974975976977978979980981982983984985986987988989990

991992993994

995996

997998


(15) days to execute a release and that DBE shall execute a mutual release for each Defendant named in their personal capacities in the Litigation that executes the release.

NOW THEREFORE, in the interest of resolving and settling all the Litigation between the parties, DBE, RR, and David King agree as follows:


(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, DBE and RR does hereby release, remise, acquit and forever discharge David King and his principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which she may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from their relationship with David King and/or any of his predecessors interests which are, or could have been, the subject of any litigation against David King which DBE or RR has ever had, now has, or which their executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against DBE or RR by David King, his principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b) It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by DBE or RR against David King arising out of any action previously taken by David King or any of his predecessors-in-interests in connection with any of DBE’s or RR’s dealings with David King.

(c) DBE and RR hereby further declare and represent that no promises, inducements, representations or agreements not expressly stated herein have been made to it except as set forth herein, and that this Release contains the entire agreement between them and David King in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.

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9991000

100110021003

1004

1005100610071008

10091010

1011101210131014101510161017101810191020

102110221023

10241025102610271028

10291030

10311032

1033

1034


(12) RELEASE BY DAVID KING

(a) Upon approval of DBE’s plan and building permit and the expiration of applicable appeal periods, David King does hereby release, remise, acquit and forever discharge DBE and RR, and their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors-in-interests and all other persons, firms, corporations, associations or partnerships with which they may be associated, of and from all, and all manner of, past or present claims, demands, actions and causes of action, debts, dues, sums of money, accounts, reckonings, bonds, covenants, warrants, contracts, controversies, agreements, promises, commissions, damages, judgments, executions, third-party actions and causes of action, and any and all suits at law or in equity, including claims for contribution and/or indemnity, of whatever nature, and particularly on account of all injuries, known and unknown, past and future, both to person and property, which have resulted from his relationship with DBE or RR and/or any of their predecessors interests which are, or could have been, the subject of any litigation against DBE or RR which David King ever had, now has, or which his executors, administrators, successors or assigns, or any of them, hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, from the beginning to the end of the world. However, this release does not apply to any future wrongs that may be committed against David King by DBE or RR, their principals, agents, partners, employees, servants, heirs, executors, administrators, attorneys, successors, affiliates, predecessors interests and all other persons, firms, corporations, associations or partnerships with which they may be associated.

(b). It is expressly understood and agreed that this Release is being executed for the express purpose of precluding forever any further or additional claims, demands, damages, actions, causes of action or suit of any kind or nature by David King against DBE or RR arising out of any action previously taken by DBE or RR or any of their predecessors-in-interests in connection with any of David King’s dealings with DBE or RR.

(c) David King hereby further declares and represents that no promises, inducements, representations or agreements not expressly stated herein have been made to him except as set forth herein, and that this Release contains the entire agreement between him and DBE and RR in regard to the Release, and that the terms of this Release are contractual, and not merely a recital.


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1035

103610371038

10391040

10411042

10431044104510461047104810491050

1051105210531054

10551056105710581059

1060

10611062

10631064

1065

1066

1067

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By: (Seal)

WITNESS/ATTEST _________________________


By: (Seal)

WITNESS/ATTEST _________________________

DAVID KING

(Seal)

WITNESS/ATTEST _________________________

WM01/ 7852976.1 32

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modified mutual agreement & releaes regarding … · web viewb.dbe, rr and dewey beach,...

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