R-1021 - 08/26/2008 - AGREEMENT - Resolutions ExhibitsSETTLEMENT AGREEMENT AND MUTUAL RELEASE
The Village of Oak Brook ( "Village "), an Illinois municipal corporation, and Lorig
Construction Company ( "Lorig ") (collectively, the "Parties ") hereby enter into this Settlement
Agreement and Mutual Release ( "Agreement ") on the last date of execution set forth below.
WITNESSETH
WHEREAS, Lorig was engaged as a subcontractor to perform certain work in the years
2001 and 2002 near 315 Street and the Salt Creek bridge in the Village as part of an Illinois
Department of Transportation / DuPage County Division of Transportation Project to reconstruct
31 St Street from Jone Boulevard to York Road in the Village of Oak Brook (the "Project ");
WHEREAS, the Village claims that during the course of the work performed by Lorig on
the Project between January 14, 2002 and January 16, 2002, Lorig caused certain temporary
sheet piling to be driven into Salt Creek that damaged the Village's 12 -inch underground water
main causing the Village to sustain water loss commencing on, about or between January 14,
2002 - January 16, 2002 and ending on or about February 12, 2004, property damage and other
losses and damages (the "Water Main Incident ");
WHEREAS, on or about July 28, 2005, the Village filed a lawsuit in the Circuit Court for
the 18`' Judicial Circuit, DuPage County, Illinois, styled Village of Oak Brook v. Long
Construction Company, (No. 05 L 754) seeking to recover damages against Lorig arising from
the Water Main Incident (the "Lawsuit ");
WHEREAS, the Parties wish to fully compromise and settle all disputes and claims
related to the Water Main Incident that were, or could have been, raised between or among the
Parties in the Lawsuit (but specifically excluding any claim either Party may have against
IRMA), exclusively on the terms and conditions set forth in this Agreement, without any
admission of liability by the ,Parties;
WHEREFORE, in consideration of the mutual promises and covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Execution by the Parties. The Village shall execute and deliver an original
signed copy of this Agreement to Lorig's counsel identified in paragraph 15 herein via Federal
Express overnight courier on or before Friday, August 29, 2008. On or before September 5,
2008, Lorig shall execute and through its counsel deliver an original signed copy of this
Agreement to counsel for the Village identified in paragraph 15 herein via Federal Express
overnight courier.
2. Settlement Payment. Lorig and its insurer, The Travelers Indemnity Company /
St. Paul Fire and Marine Insurance Company ( "Travelers "), have agreed that Travelers will
issue a check or draft on behalf of Lorig payable to the "Village of Oak Brook" for the lump sum
of Two Hundred Seventy Thousand and 00 /100 dollars ($270,000) (the "Settlement Payment ")
and that Travelers will deliver the Settlement Payment to Lorig's counsel by no later than
September 16, 2008. Within two (2) business days after the Parties execute this Agreement (as
set forth above in paragraph 1) and Lorig counsel receives the Settlement Payment from
Travelers, Lorig counsel shall deliver the Settlement Payment to the Village's counsel identified
in paragraph 15 herein via Federal Express overnight courier.
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3. Dismissal of Lawsuit. Within three (3) business days after receiving the
Settlement Payment and the signed Agreement from Lorig, the Village shall file and present a
Stipulation to Dismiss the Lawsuit, with prejudice, each Party bearing their own costs, expenses
and attorneys' fees. The Village shall deliver a copy of the dismissal order entered by the Court
to counsel for Long and IRMA via facsimile within two days.
4. Release by Lorig. Lorig, on its own behalf and on behalf of its predecessors,
successors, and current and former parent and subsidiary entities, affiliates, divisions, officers,
directors, shareholders, employees, attorneys, agents and representatives, hereby fully, forever,
irrevocably and unconditionally release, remise, and discharge the Village and all of its current
and former elected and appointed officials, trustees, employees, attorneys, agents and
representatives from any and all present and future claims, demands, charges, complaints, rights,
duties, obligations, debts, liabilities, damages, injuries, actions, causes of action, suits, accounts,
covenants, contracts, agreements, promises, warranties, acts, omissions, and expenses (including
attorney's fees and costs), of every kind and nature, whether contingent or actual, liquidated or
unliquidated, accrued or unaccrued, known or unknown, asserted or unasserted, personal or
derivative, that are based on, arise out of, relate to, or are in any manner connected with the
Water Main Incident.
5. Release by Village. The Village, on its own behalf and on behalf of its current
and former elected and appointed officials, trustees, employees, attorneys, agents and
representatives, hereby fully, forever, irrevocably and unconditionally release, remise, and
discharge Lorig and Travelers and all of their predecessors, successors, and current and former
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parent and subsidiary entities, affiliates, divisions, officers, directors, shareholders, employees,
attorneys, agents and representatives from any and all present and future claims, demands,
charges, complaints, rights, duties, obligations, debts, liabilities, damages, injuries, actions,
causes of action, suits, accounts, covenants, contracts, agreements, promises, warranties, acts,
omissions, and expenses (including attorney's fees and costs), of every kind and nature, whether
contingent or actual, liquidated or unliquidated, accrued or unaccrued, known or unknown,
asserted or unasserted, personal or derivative, that are based on, arise out of, relate to, or are in
any manner connected with the Water Main Incident, including, but not limited to, any water
loss costs, product or property damage, loss of services, civil engineering costs, leak detection
survey costs, landscaping repair and /or replacement costs, water main repair costs, parkway
repair costs, leak detection survey costs, labor and material costs, equipment costs, consultant's
costs, fees and expenses, reimbursements, deductible costs and photographic costs.
6. Timing of Releases. The releases set forth in paragraphs 4 and 5 of this
Agreement shall become effective only upon receipt of the Settlement Payment by the Village's
counsel and dismissal of the Lawsuit, all as set forth in this Agreement.
7. Review and Consultation. The Parties have read this Agreement and have been
fully informed and have full knowledge of its terms, conditions and effects, and they have, either
personally or through their attorneys, fully investigated to their full satisfaction the facts
surrounding the various claims, controversies and disputes relating to the Project and the
Lawsuits, and understand and are fully satisfied with the terms and effects of this Agreement,
which is contractually binding. The Parties further agree that no promise or inducement has
been offered or made except as set forth herein, and that this Agreement is executed of their free
act and deed without reliance on any statement or representation of the Parties.
8. Unanticipated Damages, The Village understands and hereby declares and
represents that the damages sustained are or may be permanent and progressive in nature and
that recovery therefrom is uncertain and indefinite and that there may be unknown or
unanticipated damages, losses, and other expenses or damages resulting from the aforesaid
Water Main Incident and that in executing this Agreement it is understood and agreed that this
Agreement is intended to include all such damages, losses and other expenses or damages.
9. No Admissions. This Agreement is a compromise of a disputed claim and
neither this Agreement nor any representation made in it, or exchange of any consideration made
by virtue of it, shall be construed as an admission of liability of the merit or lack of merit of any
claim or defense in the Lawsuit, whether asserted or unasserted, that is based on, arises out of,
relates to, or is in any manner connected with, the Water Main Incident.
14. Entire Agreement. This Agreement constitutes the entire agreement between
the Parties concerning its subject matter, and it supersedes any and all prior and /or
contemporaneous agreements, memorandums, warranties, statements, representations, promises
and understandings, whether written or oral, with respect to the subject matter hereof. It is
expressly understood and agreed that this Agreement may not be modified in any respect, except
by an instrument in writing, signed by all of the Parties. No waiver with respect to any provision
of this Agreement shall apply to any other provision of this Agreement, and a waiver on one
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occasion shall not be deemed to be a waiver of the same or any other breach on a future
occasion.
11. Authorization. Each Party warrants and represents that the person executing
this Agreement on its behalf is duly authorized to do so.
12. Successors and Assigns. This Agreement shall bind, and inure to the benefit of,
the Parties' successors and assigns.
13. Enforceability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law of the State of
Illinois, but if any provision of this Agreement shall be held to be prohibited by or invalid under
applicable Illinois law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement. Nothing in this Agreement shall preclude the Parties from pursuing any action
to enforce the terms of this Agreement.
14, Construction. This Agreement shall be construed as if it were drafted jointly
by the Parties and shall be construed as broadly and expansively as possible to effectuate the
intent of the Parties to settle and compromise the Water Main Incident.
15, Notices. Notices, deliveries and other communications pertaining to this
Agreement shall be addressed as follows, until a Party notifies all other parties of a change of
address;
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Lorig Construction ComRanv:
Joseph P. Buell, Esq.
Law Office of Joseph P. Buell
20 N. Wacker Drive, Suite 1660
Chicago, Illinois 60606
Tel. (312) 553 -1718
Fax (312) 553 -4521
Village of Oak Brook:
Antonio DeBlasio, Esq,
KuBTESA, SPIROFF, GOSSELAR, ACKER, & DEBLASIO, P.C.
105 South York Street, Suite 250
Elmhurst, Illinois 60126
Tel. (630) 516 -1800
Fax (630) 516 -1808
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the
date last set forth below:
[Signature Page to Follow]
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