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R-1021 - 08/26/2008 - AGREEMENT - Resolutions Supporting DocumentsITEM 10.11.2) AGENDA ITEM Regular Board of Trustees Meeting of August 26, 2008 SUBJECT: Long Settlement Agreement FROM: Mark Sterk, Village Attorney %, BUDGET SOURCE/BUDGET "ACT: N/A RECOMMENDED MOTION: I Move For Passage Of Resolution R-1021, A Resolution Authorizing the Execution of a Settlement Agreement in Connection with the Village of Oak Brook v. Lorig Construction Company. Background/History: Construction activities by Lorig in Salt Creek ruptured a Village watermain resulting in a significant loss of potable water. The Village sued Lorig for the cost of the lost water and the repair of the watermain. Lorig's insurance carrier has offered to settle the Village's claims for $270,000. The carrier has separately settled with IRMA for the money advanced by IRMA to repair the watermain. The resolution approves the settlement agreement and authorizes President Craig to sign the settlement agreement on behalf of the Village. Recommendation: I recommend that this Resolution be passed. Y,) 1� Page 1 of 2 Carol Harty From: David Niemeyer Sent: Tuesday, August 26, 2008 2 29 PM To: Carol Harty, Charlotte Pruss Cc: Donna Bettin Subject: FW Long / VOB - Final Version of Settlement Agreement for Signature Importance: High Final copy of Long Settlement agreement Please make copies for board - - - -- Original Message---- - From: Antonio DeBlasio [mailto:deblasio @ksgalaw.com] Sent: Tuesday, August 26, 2008 11:00 AM To: Mark H. Sterk; David Niemeyer Cc: Donna Doeseckle Subject: Long / VOB - Final Version of Settlem nt Ag a ment for Signature Importance: High David and Mark, Q� Please find attached the final version of the Settlement Agreement language that Long has agreed to sign Pleas ign and date three on finals Bement at tonight's, meetin nd I will have someone from my office pick up two of the originals tomorrow at the Vil age Keep one original for your files I will then send it on to Lorig's counsel for signature If you need hard copies of this document delivered to the Village for tonight's meeting, let me know how many you need Thank you Sincerely, Antonio DeBlasio, Esq. Kubiesa, Spiroff, Gosselar, Acker & DeBlasio, P.C. 105 S. York Street, Suite 250 Elmhurst, Illinois 60126 Tel. 636.516.1800 Fax 630..516. x.808 DeBlasio @ksgalaw.com From: Antonio DeBlasio Sent: Tuesday, August 26, 2008 10:56 AM To: 'JOS P BUELL'; Joseph Buell Subject: Long / VOB - Final Version Joe - Here is the final version including the last few changes you again requested this morning Per your OK this morning, I am sending this final version to the Village for execution tonight 8/26/2008 RESOLUTION 2008- AG -LE- LIT -EX1 -R -1021 A RESOLUTION AUTHORIZING THE EXECUTION OF A SETTLEMENT AGREEMENT IN CONNECTION WITH THE VILLAGE OF OAK BROOK v. LORIG CONSTRUCTION COMPANY WHEREAS, the Village of Oak Brook filed a lawsuit entitled Village of Oak Brook v. Lorig Construction Company, 05 L 754 ( "Litigation ") which is pending in the Circuit Court of the Eighteenth Judicial District, DuPage County, Illinois, and WHEREAS, in the Litigation, Oak Brook alleges that Long damaged a water main resulting in the loss of a substantial amount of water, and WHEREAS, as a result of negotiations between Oak Brook, Long and Long's insurance carrier, The Travelers Indemnity Company /St Paul Fire & Marine Insurance Company, the parties have reached a settlement as to all of Oak Brook's claims against Long which is memorialized in the settlement agreement and mutual release ( "Agreement ") attached here to as Exhibit A and incorporated herein by reference NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS, as follows Section 1 The foregoing preambles are restated and incorporated herein by reference as though fully set forth herein Section 2 The Agreement in the form attached hereto as Exhibit A is approved Section 3 The President is hereby authorized to execute the Agreement on behalf of the Village Section 4 If any section, paragraph, clause or provision of this resolution shall be held invalid, the invalidity thereof shall not affect any of the other provisions of this ordinance Section 5 All resolutions in conflict herewith are hereby repealed to the extent of such conflict Section 6 This resolution shall be in full force and effect from and after its passage, approval and publication as required by law APPROVED THIS 26th day of August, 2008 John W Craig Village President PASSED THIS 26th day of August, 2008 Ayes Nays Absent ATTEST Charlotte K Pruss Village Clerk Resolution 2008- AG -LE- LIT -EX1 -R -1021 Long Settlement Page 2 of 2 EXHIBIT S1 EiTTLEME, NT 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 Iast 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 31" 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" Street from Jorie Boulevard to York Road in the Village of Oalc 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 Creels that damaged the Village's 12 -inch underground water main causing the Village to sustain water loss, property damage and other losses and damages (tlie "Water Main Incident "); WHEREAS, on or about July 28, 2005, the Village filed a lawsuit in the Circuit Court for the 18`h Judicial Circuit, DuPage County, Illinois, styled Killage of Oak Brook v. Lorig Construction Company, (No. 05 L 754) seeking to recover damages against Lorig arising from the Water Main Incident (tlie "Lawsuit"); WHEREAS, the Parties wish to fully compromise and settle all disputes and claims related to the dilater 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 IRNiA), 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. Payment. Within twenty -one (21) days after the Village executes this Agreement and delivers it to Lorig's counsel identified herein, Lorig shall pay the Village the lump sum of Two Hundred Seventy Thousand and 001100 dollars (5270,000) (the "Settlement Payment "). Payment shall be made by check, draft or wire transfer payable to the "Village of Oak Brook" and delivered to the Village's counsel identified herein. Lorig has represented to the Village that its insurer, The Travelers Indemnity Company ( "Travelers "), has agreed to fund the Settlement Pa },ment by issuance of a draft payable to the Village and that an order for the draft has been placed at Travelers as of August 8, 2008. 2. Execution by Lorig. Within seven (7) days after the Village executes this Agreement and delivers it to counsel for Lorig, Lorig shall execute this Agreement and deliver an original signed copy of the Agreement to counsel for the Village. 3. Dismissal of Lawsuit, Within seven (7) days after receiving the fully executed Agreement, the Village shall file and present a motion to dismiss the Lawsuit, with prejudice, each Party bearing their own costs and attorneys' fees, and the Court retaining jurisdiction to enforce the Parties' Agreement. 1) 4. Release by the 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 their predecessors, successors, and current and former parent and subsidiary entities, affiliates, divisions, officers, directors, shareholders, employees, attorneys, agents and representatives from any and all present and fixture claims, demands, charges, complaints, ights, 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 bind and nature, whether contingent or actual, liquidated or unliquidated, accrued or imaccrued, 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, 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 fornier 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 3 attorney's fees and costs), of every hind 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, leaf detection survey costs, labor and material costs, equipment costs. 6. Timing of Releases. The releases set forth in paragraphs 5 and 6 of this Agreement shall become effective only upon dismissal of the Lawsuit and delivery of the Settlement Payment set forth in paragraph 1 of this Agreement. 7. Review and Consultation. The Parties have read this Agreement and have been fully informed and have full knowledge of its tenns, 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 tine 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 therefiom is uncertain and indefinite and that there may be unknown or 4 unanticipated damages, losses, and other expenses or damages resulting from the aforesaid 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 admitting 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. la. 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 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. 5 13. Enfor•eeability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable: 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 fiom pursuing any action to enforce the temas of this Agreement. 14. 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: Lorig Construction Company: Joseph P. Buell, Esq. Law Office of Joseph P. Buell 20 N. Wacker Drive, Suite 1660 Chicago, Illinois 60606 Tel. (312) 553 -1713 Fax (312) 553 -4521 Village of Oak Brook: Antonio DeBIasio, Esq. KuBIESA, Spmon -, GOSSELAR, ACICER, & DEBLASIO, P.C. 105 South York Street, Suite 250 Elmhurst, Illinois 60126 Tel. (630) 516 -1800 Fax (630) 516 -1808 [Signature Page to Follow] 0 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date last set forth below: VILLAGE OF OAK BROOK By: Printed: Its: Dated: Authorized Representative LORIG CONSTRUCTION COMPANY By: Printed: Its: Dated: Authorized Representative