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Resolution 2015-12 Resolution No. 2015-_L°� A RESOLUTION OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS, APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City")is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of this State; and, WHEREAS, on February 12, 2002, the City entered into a contract with International Codes Consultants and Inspections, Inc. ("ICCI") wherein ICCI agreed to perform certain services, including property maintenance inspections; and, WHEREAS, the City tendered notice of its termination of the contract on August 4, 2009, whereupon ICCI issued several invoices to the City for payments owed for property maintenance inspections; and, WHEREAS, ICCI filed a lawsuit against the City in the Circuit Court of Kendall County, Illinois alleging breach of contract for failure to pay the invoice and seeking damages; and, WHEREAS, in order to avoid the expense and inconvenience of litigation, the Mayor and City Council of the City have determined that it is in the best interests of the City to enter into a settlement agreement with ICCI and its owners, William A. Dettmer and Barbara J. Dettmer, to settle and dispose of ICCI's claims against the City. NOW, THEREFORE, BE IT RESOLVED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the Settlement Agreement and Mutual Release between the United City of Yorkville, International Codes Consultants and Inspections, Inc., William A. Dettmer, and Barbara J. Dettmer, attached hereto and made a part hereof, is hereby approved and the Mayor is hereby authorized to execute and deliver said Agreement on behalf of the United City of Yorkville. Section 2. This Resolution shall be in full force and effect from and after its passage and approval as provided by law. Resolution No.2015- /oZ Page 1 Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of . j , 2015. CITY CLERK CARLO COLOSIMO KEN KOCH JACKIE MILSCHEWSKI LARRY KOT CHRIS FUNKHOUSER JOEL FRIEDERS DIANE TEELING SEAVER TARULIS Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of JUi-Y 12015. MA O Attest: City Clerk Resolution No.2015- /a Page 2 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Agreement") is made between UNITED CITY OF YORKVILLE, an Illinois municipal corporation located at 800 Game Farm Road, Yorkville, Illinois 60560 ("YORKVILLE"), INTERNATIONAL CODES CONSULTANTS AND INSPECTIONS, INC. ("ICCI"), an Illinois corporation, WILLIAM A. DETTMER ("WILLIAM") and BARBARA J. DETTMER ("BARBARA"), (collectively,the "Parties"). BACKGROUND 1. WILLIAM and BARBARA are the owners of ICCI. 2. On February 12, 2002, ICCI and YORKVILLE entered into a contract entitled "Agreement for Building Inspection Services Between the United City of Yorkville, Illinois and International Codes Consultants and Inspections, Incorporated" ("Contract"). 3. The Contract provided for ICCI to perform certain services, including, inter alia, property maintenance inspections. 4. Regarding payment for property maintenance services, the Contract provided in Paragraph 5: "(c) For Property Maintenance inspections required in accordance with City Ordinances and Policy,there will be no hourly rate charged for I year from the date of the passage of said policy. Any other Property Maintenance inspections conducted at the request of the City Administrator, or the Mayor through the City Administrator, will be charged at the hourly rate of$50.00 per hour with a minimum charge of 2 hours." 5. On August 4, 2009, Yorkville, pursuant to the Contract terms, tendered ninety (90) days written notice of its termination of the Contract. 6. On December 22, 2009, ICCI issued a new invoice seeking payment of$106,287.50 for property maintenance inspections allegedly performed between February 13, 2003 and November 9, 2009. 7. Thereafter, ICCI submitted revised invoices seeking a total of$115,902.50 for property maintenance inspections allegedly performed between February 13, 2003 and November 9, 2009. 8. On August 15, 2012, ICCI filed a lawsuit naming Yorkville as Defendant in the Circuit Court of Kendall County, Illinois known as Case Number 2012 L 58 (hereinafter known 1 as the "Lawsuit"). In the Lawsuit, ICCI contends that Yorkville breached the Contract by failing to pay the invoice and seeking damages in the amount of$115,902.50. 9. Yorkville disputes liability and asserted the affirmative defenses of laches, waiver, ratification, estoppel, account stated, and lack of consideration. 10. The Parties desire to settle and dispose of the above-referenced claims that ICCI has against YORKVILLE and avoid the expense and inconvenience of litigation. Accordingly,the Parties agree as follows: ARTICLE I. SETTLEMENT TERMS AND CONDITIONS Section 1.01 Settlement Terms. In consideration of and return for a full release of all claims among YORKVILLE and ICCI, except as otherwise provided in this Agreement, the parties agree to the following: a. YORKVILLE agrees to pay ICCI the amount of Sixteen Thousand Dollars ($16,000.00) within thirty (30) days of the execution of this Agreement and approval of this Settlement and Agreement by the City Council. b. ICCI agrees to dismiss with prejudice the Lawsuit. Section 1.02 Approval of Settlement by City Council. This settlement shall be contingent upon the approval of the Settlement and this Agreement by the Yorkville City Council. Section 1.03 Dismissal of the Lawsuit. For and in consideration of the mutual covenants and agreements contained herein, within fourteen (14) days after all Parties have executed this Agreement and the City Council has approved this settlement as provided above, the Parties shall execute and file a Stipulation and Order of Dismissal With Prejudice, dismissing the Lawsuit, including claims and counterclaims, with prejudice, and with each Party bearing its own attorneys' fees and costs. Section 1.04 Release. The parties hereby release one another as follows: a. Except for the obligations of YORKVILLE and its successors as set forth in this Agreement, ICCI, WILLIAM, and BARBARA, for themselves and their respective officers, directors, shareholders, agents, employees, successors and assigns (hereinafter"ICCI's Releasing Parties"), does hereby release, remise, acquit, hold harmless and forever discharge YORKVILLE and its elected and non-elected officials, its mayor and aldermen, agents, employees, successors and assigns (hereinafter "ICCI's Released Parties") from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds, judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by 2 contract, tort, common law or pursuant to statute, of whatever kind or however arising, which ICCI's Releasing Parties now have or ever had as of the date of the execution of this Agreement against ICCI's Released Parties arising out of or relating to the allegations contained in the Complaint filed in the Lawsuit. b. Except for the obligations of ICCI as set forth in this Agreement, YORKVILLE, for itself and its respective elected and non-elected officials, its mayor and alderman, agents, employees, successors, and assigns (hereinafter "Yorkville's Releasing Parties"), does hereby release, remise, acquit, hold harmless and forever discharge ICCI, WILLIAM, and BARBARA and their respective officers, directors, shareholders, agents, employees, successors and assigns (hereinafter "Yorkville's Released Parties") from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds, judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract,tort, common law or pursuant to statute, of whatever kind or however arising, which the Yorkville's Releasing Parties now have or ever had as of the date of the execution of this Agreement against the Yorkville's Released Parties arising out of or relating to the allegations contained in the Complaint filed in the Lawsuit. C. Notwithstanding any other provision, by this Agreement, the parties do not release, and expressly preserve fully and to the same extent as if the Agreement had not been executed, any claims or causes of action against the parties for liability, if any, incurred that do not arise out of the allegations contained in the Complaint filed in the Lawsuit. Section 1.05 Non-Admission of Liability. This Agreement is the compromise of disputed claims and fully and finally settles all claims known or unknown among YORKVILLE and ICCI, stemming from the Lawsuit; it is intended to amicably resolve disputes and to avoid extensive and uncertain litigation. Neither the payment of any consideration hereunder or anything contained in this Agreement shall be interpreted or construed to be an admission on the part of, or to the prejudice of, any person or party named herein. Section 1.06 Each Party To Bear Its Respective Attorneys' Fees and Costs. Except as otherwise provided in this Agreement, each of the parties shall be responsible for its respective costs, expenses and attorneys' fees incurred in the Lawsuit and Enforcement Action. ARTICLE II. GENERAL PROVISIONS Section 2.01 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Illinois without giving effect to principles of conflict of laws. Section 2.02 Enforcement of Rights. In the event that any party shall institute any action or proceeding to enforce or interpret any of the rights granted or released hereunder, the prevailing party in such action or proceeding shall be entitled to recover all of its costs and 3 expenses incurred in the action or proceeding, including but not limited to reasonable attorney's fees and court costs. Section 2.03 Validity of Release. If any party should breach this Agreement by filing a claim or lawsuit in which such party asserts that the release contained in this Agreement is invalid, such parry shall be in breach of this Agreement and shall be obligated to pay any and all attorneys' fees incurred as a result. Section 2.04 Severability; Waiver. Whenever possible, each provision of the Agreement shall be interpreted in such a manner as to be valid under applicable Illinois law, but if any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force only if the essential provisions of the Agreement for each party remain valid, binding, and enforceable. The waiver by either party of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach. Section 2.05 Headings. Headings used in this Agreement are for reference purposes only and in no way define or limit the scope of such section or in any way affect this Agreement. Section 2.06 Entire Agreement. This Agreement sets forth the entire, final, and exclusive agreement between YORKVILLE and ICCI. All prior negotiations and agreements, whether oral or written, between YORKVILLE and ICCI, are incorporated into this Agreement. This Agreement may not be changed, modified, or altered except by an agreement in writing, signed by the YORKVILLE and ICCL The terms of this Agreement are contractual and not a mere recital. Section 2.07 Inadmissibility. This Agreement, its execution, and its implementation may not be used as evidence, and shall not be admissible, in any proceeding except one alleging a breach of this Agreement. Section 2.08 Advice of Counsel. The Parties represent and acknowledge that they have had the opportunity to consult with legal counsel or other advisors in connection with this Agreement. The Parties represent and agree that they fully understand and consent to the terms of this Agreement and understand the consequences of signing this Agreement. No presumption in favor of or against any party shall apply in interpreting the terms of this Agreement. Section 2.09 Successors. This Agreement shall be binding upon and inure to the benefit of the YORKVILLE and ICCI and each of their respective heirs, executors, administrators, employees, agents, successors, representatives, assigns, parent corporations, affiliates, subsidiaries, directors, officers, shareholders and attorneys (and employees and associates thereof). Section 2.10 Counterparts. This Agreement may be executed in counterparts, and all such counterparts together shall constitute the entire agreement between YORKVILLE and ICCI. A faxed/scanned copy of this Agreement will be deemed to be the same as an original. 4 Section 2.11 Effective Date. The effective date of this Agreement shall be deemed to be the date of its execution, as stated below. PLEASE READ CAREFULLY. THIS DOCUMENT INCLUDES RELEASE CLAIMS. INTERNATIONAL CODES THE UNITED CITY OF YORKVILLE CONSULTANTS AND INSPECTIONS, INC. BY: By: '�-z WILLIAM A. DETTMER Its Mayor Date: Date: /e1114' ! BARBARA J. DETTMER Date: WILLIAM A. DETTMER, Individually BARBARA J. DETTMER,Individually Date: Date: 5 Section 2.11 Effective Date. The effective date of this Agreement shall be deemed to be the date of its execution,as stated below. PLEASE DEAD CAREFULLY. THIS DOCUMENT INCLUDES RELEASE CLAIMS. INTERNATIONAL CODES THE UNITED CITY OF YORKVILLE CONSULTANTS AND INSPECTIONS, INC. BY: By: WILLIAM A.DETTMER Its Mayon Date: 1.1 Date: BARWAA J.DETTMER Date: ..lure 2cr " WILLIAM A.DETTMER,Individually BARBARA J.DETTMER,Individually Date: / 7 u 2 cr t s' Date: /I- T N ZO t s° 5