IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
STIPULATION OF DISMISSAL WITH PREJUDICE
Plaintiff Cardinal Peak Industries, a Colorado limited liability company ("Cardinal Peak" or "CPI"), and Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc., a Delaware corporation ("Nexford" or "NIH") (collectively, the "Parties"), by and through their respective undersigned counsel of record, hereby stipulate and agree to the dismissal of this action, with prejudice, as set forth herein. Cardinal Peak is represented by Blackwood Stein & Associates LLP, 717 Seventeenth Street, Suite 2200, Denver, Colorado 80202, by and through Garrett Blackwood, Lead Partner, and Megan Hsu, Associate. Nexford is represented by Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, Illinois 60606, by and through Priya Anand, Responsible Partner, Douglas Carmichael, Billing Partner, and Simone Laroche, Lead Associate.
In support of this Stipulation, the Parties state as follows:
RECITALS
WHEREAS, Cardinal Peak filed its Complaint in this action on August 8, 2022, asserting claims against Nexford for: (1) Breach of Contract (Count I); (2) Unjust Enrichment (Count II); and (3) Account Stated (Count III), each arising out of and relating to a Master Supply Agreement between the Parties dated January 15, 2020, bearing reference number MSA-NIH-CPI-2020-001 (the "Master Supply Agreement" or "MSA"), and the transactions, purchase orders, invoices, and dealings between the Parties thereunder;
WHEREAS, Nexford filed its Answer and Affirmative Defenses to Cardinal Peak's Complaint on September 19, 2022, denying the material allegations of the Complaint and asserting various affirmative defenses thereto, and thereafter filed its Counterclaim against Cardinal Peak on October 3, 2022, asserting claims for breach of contract and seeking declaratory judgment with respect to the Parties' respective rights and obligations under the Master Supply Agreement;
WHEREAS, the Parties have reached a full and amicable resolution of all claims, counterclaims, defenses, and disputes between them in this action, and have memorialized their agreement by executing a Settlement Agreement and Mutual Release dated August 18, 2023 (the "Settlement Agreement"), the terms of which are incorporated herein by reference but the substantive provisions of which shall remain confidential as between the Parties; and
WHEREAS, the Parties now desire to dismiss all claims and counterclaims in this action with prejudice, each party to bear its own attorneys' fees, costs, and expenses, pursuant to the terms of their Settlement Agreement and in accordance with applicable provisions of the Illinois Code of Civil Procedure and the Rules of the Circuit Court of Cook County.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained in the Settlement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby stipulate and agree as follows:
STIPULATION
1. Dismissal of Plaintiff's Claims. All claims asserted by Plaintiff Cardinal Peak Industries against Defendant Nexford Industrial Holdings Inc. in the Complaint filed on August 8, 2022, including but not limited to Count I (Breach of Contract), Count II (Unjust Enrichment), and Count III (Account Stated), are hereby dismissed WITH PREJUDICE. Such dismissal shall operate as a final adjudication on the merits of each such claim and shall bar any further action by Cardinal Peak against Nexford on any claim that was asserted, or that could have been asserted, in the Complaint in connection with the subject matter of this litigation.
2. Dismissal of Defendant's Counterclaim. All counterclaims asserted by Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc. against Plaintiff/Counter-Defendant Cardinal Peak Industries in the Counterclaim filed on October 3, 2022, including the claim for breach of contract and the claim for declaratory judgment, are hereby dismissed WITH PREJUDICE. Such dismissal shall operate as a final adjudication on the merits of each such counterclaim and shall bar any further action by Nexford against Cardinal Peak on any counterclaim that was asserted, or that could have been asserted, in the Counterclaim in connection with the subject matter of this litigation.
3. Attorneys' Fees and Costs. Each Party shall bear its own attorneys' fees, costs, disbursements, and expenses incurred in connection with this action, including but not limited to filing fees, service costs, discovery expenses, mediation fees, and all other litigation-related costs. No Party shall seek to recover any such fees, costs, or expenses from any other Party, whether by motion, petition, separate action, or otherwise, except as may be expressly provided in the Settlement Agreement.
4. No Admission of Liability. This Stipulation of Dismissal shall not constitute, nor shall it be construed as, an admission of liability, wrongdoing, fault, or the validity or invalidity of any claim, counterclaim, defense, or legal or factual position asserted by either Party in this action. The Parties enter into this Stipulation solely for the purpose of compromising disputed claims and avoiding the burden, expense, and uncertainty of further litigation.
5. Court Jurisdiction Retained. The Court shall retain jurisdiction over the Parties and the subject matter of this action solely for the limited purpose of enforcing the terms and conditions of the Parties' Settlement Agreement and Mutual Release dated August 18, 2023, to the extent permitted by applicable law. Such retained jurisdiction shall include the authority to entertain motions to enforce, interpret, or compel compliance with the Settlement Agreement, and to award appropriate relief, including attorneys' fees and costs to the prevailing party on any such enforcement motion, as provided in the Settlement Agreement. Except as set forth in this Paragraph 5, the Court's jurisdiction over this matter shall terminate upon entry of the Order of Dismissal.
6. Prior Orders. All prior orders entered in this action, including but not limited to the Order Granting the Joint Motion to Stay Litigation Pending Mediation entered on June 5, 2023, and any scheduling orders, case management orders, or other pretrial orders, are hereby vacated as moot upon entry of the Order of Dismissal contemplated by this Stipulation.
7. Binding Effect. This Stipulation is binding upon the Parties and their respective successors, assigns, officers, directors, agents, employees, representatives, parent companies, subsidiaries, and affiliates. The undersigned counsel represent and warrant that they are duly authorized by their respective clients to execute this Stipulation on their behalf and to consent to the entry of the Order of Dismissal requested herein.
WHEREFORE, the undersigned counsel for the Parties respectfully request that the Court enter an Order dismissing this action in its entirety, including all claims asserted by Plaintiff Cardinal Peak Industries in the Complaint and all counterclaims asserted by Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc. in the Counterclaim, with prejudice and without costs to either Party, in accordance with this Stipulation and in the form of the Proposed Order submitted herewith.
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Respectfully submitted,
Attorneys for Plaintiff Cardinal Peak Industries:
BLACKWOOD STEIN & ASSOCIATES LLP
By: ________
Garrett Blackwood, Lead Partner ARDC No. 6312847 717 Seventeenth Street, Suite 2200 Denver, CO 80202 Telephone: (303) 555-7200 Facsimile: (303) 555-7201
Email: gblackwood@blackwoodstein.com
Date: September 14, 2023
Attorneys for Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc.:
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand, Responsible Partner ARDC No. 6289415 200 South Wacker Drive, Suite 4400 Chicago, IL 60606 Telephone: (312) 555-4400 Facsimile: (312) 555-4401
Email: panand@calderwoodharkness.com
Date: September 14, 2023
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
ORDER OF DISMISSAL WITH PREJUDICE
This matter coming before the Court upon the Stipulation of Dismissal with Prejudice filed jointly by Plaintiff Cardinal Peak Industries, a Colorado limited liability company, by and through its attorneys, Blackwood Stein & Associates LLP, and Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc., a Delaware corporation, by and through its attorneys, Calderwood & Harkness LLP, and the Court having reviewed the Stipulation and being fully advised in the premises:
IT IS HEREBY ORDERED that all claims asserted by Plaintiff Cardinal Peak Industries against Defendant Nexford Industrial Holdings Inc. in the Complaint filed on August 8, 2022, including Count I (Breach of Contract), Count II (Unjust Enrichment), and Count III (Account Stated), are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all counterclaims asserted by Defendant/Counter-Plaintiff Nexford Industrial Holdings Inc. against Plaintiff/Counter-Defendant Cardinal Peak Industries in the Counterclaim filed on October 3, 2022, including the claims for breach of contract and declaratory judgment, are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that each party shall bear its own attorneys' fees, costs, disbursements, and expenses incurred in connection with this action. No costs are assessed against either party.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction over the parties and the subject matter of this action solely for the limited purpose of enforcing the terms of the parties' Settlement Agreement and Mutual Release dated August 18, 2023, to the extent permitted by applicable law.
IT IS FURTHER ORDERED that all prior scheduling orders, case management orders, and the Order Granting the Joint Motion to Stay Litigation Pending Mediation entered on June 5, 2023, are hereby vacated as moot.
IT IS FURTHER ORDERED that this is a final and appealable order. There is no just reason for delaying either enforcement or appeal of this Order.
ENTERED this _ day of ______, 2023.
________________________________________
Judge of the Circuit Court of Cook County
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on September 14, 2023, the foregoing Stipulation of Dismissal with Prejudice and the accompanying Proposed Order of Dismissal with Prejudice were served upon all counsel of record in the following manner:
Via the Court's electronic filing system and via electronic mail to:
Garrett Blackwood, Esq. Megan Hsu, Esq. BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, CO 80202
Email: gblackwood@blackwoodstein.com; mhsu@blackwoodstein.com
Counsel for Plaintiff Cardinal Peak Industries
CALDERWOOD & HARKNESS LLP
By: ________
Simone Laroche, Lead Associate ARDC No. 6347821 200 South Wacker Drive, Suite 4400 Chicago, IL 60606 Telephone: (312) 555-4400 Facsimile: (312) 555-4401
Email: slaroche@calderwoodharkness.com
CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
| v. | Case No. 2022-L-008471 |
| NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation, | Calendar: 7 |
<!-- indent:2 -->Defendant.<!-- /indent -->
CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
| v. | Case No. 2022-L-008471 |
| NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation, | Calendar: 7 |
<!-- indent:2 -->Defendant.<!-- /indent -->