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R-1125 - 09/13/2011 - AGREEMENT - Resolutions Supporting DocumentsITEM 7.G.4) AGENDA ITEM Regular Board of Trustees Meeting of September 13, 2011 SUBJECT: Mutual Release and Settlement Agreement - Salazar FROM: Peter Friedman, Village Attorney BUDGET SOURCE/BUDGET IMPACT: N/A RECOMMENDED MOTION: I move for approval of Resolution 2011 -AG- LIT -EX1-R -1125: A Resolution Approving and Authorizing the Execution of a Mutual Release and Settlement Agreement by and Between the Village of Oak Brook and Mario and Nancy Salazar. Background/History: Mario and Nancy Salazar filed a lawsuit against the Village in 2007 relating to the vacation of the Thurston Cemetery. The Salazars are prepared to drop their lawsuit against the Village in return for temporary use of a Village backhoe to help remediate the site. A Mutual Release and Settlement Agreement was prepared to resolve the dispute. Recommendation: I recommend that this Resolution and the Mutual Release and Settlement Agreement be approved. 1 I 8 RESOLUTION 201 1-AG-LIT-EX1-R-1 125 A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A MUTUAL RELEASE AND SETTLEMENT AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND MARIO AND NANCY SALAZAR WHEREAS, Mario A. Salazar, Nancy L. Salazar, and Nancy L. Salazar as Trustee of the Nancy L. Salazar Trust dated September 7, 1991, of 15 Kimberly Circle, Oak Brook Illinois (collectively, the "Plaintiffs'), filed a lawsuit in 2007 in the Court of DuPage County, Illinois, Case No. 07 MR 1065 ( "Lawsuit); and WHEREAS, the Village and the Plaintiffs now desire to reach a mutually acceptable, good faith resolution of all matters pending between them; and WHEREAS, the President and Board of Trustees have determined that settling the Lawsuit with the Plaintiffs by entering into a mutual release and settlement agreement is in the best interests of the Village; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Mutual Release and Settlement Agreement ( "Settlement Agreement) by and between the Village and the Plaintiffs in substantially the same the form as attached as Exhibit A. Section 3: Authorization and Execution of the Agreement. The Village President and Village Clerk shall be, and hereby are, authorized to execute the final Settlement Agreement on behalf of the Village after review and approval of the final form of the Agreement by the Village Manager and the Village Attorney. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. APPROVED THIS 13'0 day of September, 2011 Gopal G. Lalmalani Village President PASSED THIS 13'0 day of September, 2011 Ayes: Resolution 2011 -AG- LIT -EXI -R -1125 Salazar Release & Settlement Agrmnt. Page 2 of 2 ATTEST: Charlotte K. Pruss Village Clerk Resolution 2011 -AG- LIT -EXI -R -1125 Salazar Release & Settlement Agrmnt. Page 2 of 2 EXHIBIT A MUTUAL RELEASE AND SETTLEMENT AGREEMENT #10597713_vl MUTUAL RELEASE AND SETTLEMENT AGREEMENT This MUTUAL RELEASE AND SETTLEMENT AGREEMENT ( "Agreement') is made this day of , 2011, by and between the Village of Oak Brook, a municipal corporation, Defendant (hereinafter "the Village ") and Mario A. Salazar, Nancy L. Salazar, and Nancy L. Salazar as Trustee of the Nancy L. Salazar Trust dated September 7, 1991, 15 Kimberly Circle, Oak Brook, Illinois, Plaintiffs (hereinafter "Salazar "). WHEREAS, this dispute is the subject of a certain lawsuit filed by Salazar against the Village in the Court of DuPage County, Illinois, Case No. 07 MR 1065 (hereinafter "the Lawsuit'); WHEREAS, the parties hereto have agreed to an amicable settlement of all claims relating to these disputes, so as to avoid further costs of litigation. This is not an admission of wrongdoing by any party. NOW THEREFORE, in consideration of the foregoing and of the mutual promises contained herein and intending to be legally bound hereby, each of the parties hereto hereby agrees as follows: 1. All of the parties shall dismiss with prejudice any and all actions and/or claims against each other. However, the Court shall retain jurisdiction for enforcement purposes, and for entry of a final judgment order. 2. Within twenty -one (21) days of the execution of this Agreement, the Village shall provide a tractor and tractor driver to perform the services as requested and under the supervision of Dr. Thomas Loebel within the backyard of the Salazar property, not to exceed six (6) days (up to 8 hours per day), which will be for all of Phase 2 and all of Phase 3. In other words, for the completion of the job. 3. In consideration, the Village, for itself and its heirs, executors, administrators, agents, representatives, partners, managers, employees, licensees, insurers, attorneys, affiliates, subsidiaries, units, assigns, general partners, limited partners, entities, related entities, predecessors, successors, parents, owners, officers, managers, shareholders and directors, releases and forever discharges Salazar as to related matters only, not to unrelated matters, their respective heirs, executors, administrators, agents, representatives, partners, managers, employees, licensees, insurers, attorneys, affiliates, subsidiaries, units, assigns, general partners, limited partners, entities, related entities, predecessors, successors, parents, owners, officers, managers, shareholders and directors, from any and all rights, claims, debts, causes of action, liabilities, obligations, matters or things, of any nature whatsoever, whether in law or in equity, asserted or unasserted, and accrued or unaccrued, arising out of or relating in any manner whatsoever to any and all transactions that the parties have entered into, from any time in the past up to the date of this Agreement, including all claims that are the subject of or are in any way related to the Lawsuit. 4. In consideration, Salazar for themselves and their heirs, executors, administrators, agents, representatives, partners, managers, employees, licensees, insurers, attorneys, affiliates, subsidiaries, units, assigns, general partners, limited partners, entities, related entities, predecessors, successors, parents, owners, officers, managers, shareholders and directors, releases and forever discharges the Village, its respective heirs, executors, administrators, agents, representatives, partners, managers, employees, licensees, insurers, attorneys, affiliates, subsidiaries, units, assigns, general partners, limited partners, entities, related entities, predecessors, successors, parents, owners, officers, managers, shareholders and directors, from any and all rights, claims, debts, causes of action, liabilities, obligations, matters or things, of any 2 nature whatsoever, whether in law or in equity, asserted or unasserted, and accrued or unaccrued, arising out of or relating in any manner whatsoever to any and all transactions that the parties have entered into, from any time in the past up to the date of this Agreement, including all claims that are the subject of or are in any way related to the Lawsuit. 5. It is further understood and agreed that this Agreement is in full satisfaction of all claims whether disputed and/or undisputed and that this is not an admission of any liability. 6. It is understood and agreed to by Salazar and the Village that the releases contained in this document release only the parties defined therein and are not to be construed as releasing any claims or causes of action against any other party, including any defendant (other than the Village) named in the Lawsuit. 7. It is understood and agreed that this is the complete Agreement, and that there are no written or oral understandings or agreements, directly or indirectly, connected with this Agreement that are not expressly incorporated herein. This agreement shall be binding upon and inure to the successors, assigns, heirs, estates, executors, administrators, and legal representatives of the respective parties hereto. 8. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 9. This Agreement may not be modified, amended, terminated or otherwise altered except in writing and signed by all of the parties hereto. 10. This Agreement may be signed in counterpart, and a photocopy shall constitute an original and is strictly confidential, however, subject to the Illinois Freedom of Information Act. 11. Salazar also agrees to hold the Village and its employee harmless and to not sue the Village and its employee for any claims and causes of action arising from the Village K employee's negligence in performing the services agreed to herein, including but not limited to, any excavation and filling activity, moving of equipment and materials, and ingress and egress from the Salazar property. The Salazar's agreement to hold the Village and its employee harmless and to not sue the Village and its employee, covers any personal injury and damage to personal and real property and any claims and causes of action based upon the same. The Village does not waive any tort immunity or other immunity afforded to it by Illinois law. 12. Attached herein and incorporated by reference, please find the final judgment order that shall be entered pursuant to the language contained within said final judgment order. 13. Within fourteen (14) days of the mutual execution of this Mutual Release and Settlement Agreement, the Village shall pass an ordinance, the sum and substance of which is as follows: that through its legal authority, the Village vacates the Thurston Cemetery and authorizes Salazar through Salazar's agents to remove said gravesites. 14. All work will be performed in compliance with Dawn E. Cobb, Human Skeletal Remains Protection Act Coordinator, Illinois Historic Preservation Agency. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the date written above. VILLAGE OF OAK BROOK, a municipal corporation LE Print Name and Title M MARIO A. SALAZAR NANCY L. SALAZAR NANCY L. SALAZAR as Trustee of the NANCY L. SALAZAR TRUST dated September 7, 1991 (15 Kimberly Circle, Oak Brook, IL) HEIDECKE LAW OFFICES ATTORNEYS AT LAW 1550 SPRUNG ROAD - 3RD FLooR OAK BROOK, ILLINOIS 60523 TELEPHONE (630) 368 -1900 TELECOPIER (630) 573 -8586 WA W.HEIDECKELAWCOM November 14, 2011 Mr. Michael Hayes, Esq. Odelson & Sterk, Ltd. 3318 W. 95`s Street Evergreen Park, IL 60805 Re: Salazar v. Village of Oak Brook et al Case No. 2007 MR 1065 (DuPage County, IL) Dear Mr. Hayes, Per our conversation, enclosed please find the original fully executed Mutual Release and Settlement Agreement that you requested. Thank you for your courtesy and cooperation. Sincerely, 4w"'l 1 Richard A. Heidecke HEIDECKE LAW OFFICES Enclosure cc: Glenn R Gaffney, Esq.