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Resolution 2019-16 Resolution No.2019-16 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS 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 GENERAL RELEASE OF ALL CLAIMS attached hereto and made a part hereof by reference as Exhibit A, is hereby approved, and John Purcell, Mayor, and Lisa Pickering, City Clerk, be and are hereby authorized to execute said agreement on behalf of the United City of Yorkville. Section 2. This Resolution shall be in full force and effect upon its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 28'h day of May, 2019. dwGt. CITY CLERK KEN KOCH ABSENT DAN TRANSIER AYE JACKIE MILSCHEWSKI AYE ARDEN JOE PLOCHER AYE CHRIS FUNKHOUSER AYE JOEL FRIEDERS AYE SEAVER TARULIS ABSENT JASON PETERSON AYE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this .314t day of MR Y , 2019. M OR Resolution No.2019-16 Page 1 SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release of All Claims ("Agreement") is entered into between CHARLENE JOHNSON and TAD JOHNSON, individually and on behalf of their children, heirs, executors and administrators, successors and assigns (hereinafter collectively "Plaintiffs"), and the UNITED CITY OF YORKVILLE, and its officials, officers, employees, agents, boards, commissions, and insurers (collectively "City" or "Released Parties") (Plaintiffs and City are collectively referred to as the "Parties"). Recitals WHEREAS, Plaintiffs have filed suit against the City and Sarah Klingel and Jeffrey Johnson in the United States District Court for the Northern District of Illinois as Case No. 18 cv 5946 ("Litigation"); and WHEREAS, Plaintiffs will voluntarily dismiss Klingel and Johnson individually from the Litigation with prejudice and settle with the City pursuant to the terms and conditions of this Agreement; and, WHEREAS, the Parties desire and believe it to be in their best respective interests to settle any and all claims in dispute between and among them through this Agreement; and WHEREAS, the Parties have been advised by counsel of their own choosing in entering into this Agreement; and WHEREAS, the Parties are entering into this Agreement as their own free and voluntary acts. NOW, THEREFORE, in consideration of the recitals stated above, which are incorporated into this Agreement, and other good and valuable consideration, including but not limited to the covenants and agreements hereinafter set forth, the undersigned Parties do hereby agree as follows: 1. Each of the Parties represents that, by entering into this Agreement, each is acting in good faith in an effort to reach a compromise of matters involving disputed issues among them, and each Party affirms that it has made no misrepresentation of fact during the negotiation/settlement process to induce the other Party to enter into this Agreement. 2. Each of the Parties hereto acknowledges that the terms of this Agreement and the consideration to which it refers reflects only their intention to avoid further litigation on disputed claims and to have a written agreement entered to memorialize their agreement. This Agreement and compliance with this Agreement shall not be considered as an admission by any party of any liability whatsoever, or as an admission by any party of the rights of another party 1 or of any other person or entity, or of the violation of any order, law, statute, duty or breach of any contract or duty, or the commission of any unlawful or improper act whatsoever. 3. In consideration of the terms of this Agreement, Plaintiffs fully and completely waive, release, and forever discharge and hold harmless the City and its officials, officers, employees, including but not limited to Sarah Klingel and Jeffrey Johnson, agents, boards, commissions, and insurers, including but not limited to Alternative Insurance Corporation and Glatfelter Claims Management, Inc., (hereinafter "Released Parties"), from and against any and all claims, controversies, liabilities, judgments, causes of action, damages, demands, costs, attorney's fees and expenses, known and unknown, vested or contingent, direct or indirect, whether recoverable under the Constitution, statutes, or common law of the United States of America or the State of Illinois, including but not limited to 42 U.S.C. " 1983 and 1988, that Plaintiffs may have, had, or may now have against the Released Parties from the beginning of time to the effective date of this Agreement, including but not limited to the claims arising from, in connection with, or relating to the Litigation. This General Release expresses a full and complete settlement of a liability claimed by Plaintiffs and denied by the Released Parties, irrespective of the consideration set forth herein. 4. The City shall pay to Plaintiffs the total sum of One Hundred and Twenty-Five Thousand Dollars ($125,000.00) ("Settlement Payment"). The payment shall be made upon thirty (30) days of the City's receipt of this Agreement executed by Plaintiffs and their attorneys. 5. Upon receipt of the Settlement Payment, Plaintiffs shall voluntarily dismiss KLINGEL and JOHNSON individually with prejudice from the Litigation, and Plaintiffs shall then file a Stipulation to Dismiss the Litigation pursuant to this settlement with the City, with each side bearing their own costs. 6. This Agreement is based upon a good faith determination of the Parties to resolve a disputed claim. The Parties have attempted to resolve this matter in compliance with both state and federal law, and it is believed that the settlement terms adequately consider and protect Medicare's interest and do not reflect any attempt to shift responsibility of past or future medical treatment to Medicare. The Parties acknowledge and understand that any present or future action or decision by Medicare, or Plaintiffs' eligibility or entitlement to Medicare or Medicare benefits, will not render this Agreement void or ineffective, or in any way affect the finality of this settlement. Plaintiffs represent and warrant that they are not currently Medicare beneficiaries or within thirty (30) months of becoming a Medicare beneficiaries. Further, because Plaintiffs are not expected to become Medicare beneficiaries within thirty (3) months from the date of this Agreement, no funds have been allocated for future incident-related medical treatments. In the event that any of the above information provided by Plaintiffs is false or in any way incorrect, Plaintiffs shall be liable for any and all actions, causes of actions, penalties, claims, costs, services, compensation or the like resulting from these inaccuracies. 2 Plaintiffs acknowledge that Medicare may require Plaintiffs to exhaust the entire settlement proceeds on future Medicare-covered incident-related medical expenses should Plaintiffs become Medicare beneficiaries within thirty (30) months from the date of this release. In the event that any claim is made against Released Parties for the payment of any liens, including but not limited to medical liens by any third-party medical provider related to the Plaintiffs, Plaintiffs agree to indemnify, defend and hold harmless Released Parties from such claim. 7. In the event that any claim is made against the Released Parties for the payment of any taxes related to the Settlement Payment made to Plaintiffs as described above, Plaintiffs agree to indemnify, defend and hold harmless the Released Parties from such claim. Plaintiffs further agree that the Released Parties have not made any representations nor have Plaintiffs relied on any representation from them, regarding the taxability of the settlement proceeds. 8. This is the entire agreement between the Parties, and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever. Any amendment to this Agreement must be agreed to by all Parties in writing; 9. The Parties agree to cooperate fully and to execute any and all documents, including but not limited to the execution of any and all lien waivers and releases, and take all additional action that may be necessary and appropriate to give full force and effect to the terms and intent of this Agreement. 10. In entering into this Agreement, the Parties represent that they have completely read all terms hereof and that such terms are fully understood and voluntarily accepted by them. This Agreement shall not be subject to any claim of mistake of fact. All words, phrases, sentences and paragraphs, including the recitals hereto, are material to the execution hereof. This Agreement is negotiated and considered to have been drafted jointly by the Parties, and no rule of construction or interpretation will apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties, including, but not limited to, cases of uncertainty. This Agreement will be construed and interpreted in a neutral manner. 11. If any provision of this Agreement or its application is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications; and to this end the provisions of this Agreement are declared and understood to be severable. 12. The parties also warrant that they have the legal authorization to enter into and sign this Agreement. 3 V 13. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 14. Plaintiffs and their counsel agree that they shall keep the terms and conditions of this Agreement, including, but not limited to the settlement amount, confidential and shall not share the same with anyone outside the Parties to this Agreement and their respective counsel and the court, or divulge or disclose the same orally or in writing, including but not limited to any type of press release, press conference, publication, promotional material, or communication, except to attorneys and tax consultants. 15. This Agreement is entered into in the State of Illinois and shall be construed and interpreted in accordance with its laws. 16. Each of the Parties shall be responsible for the payment of their own costs and attorneys'fees in preparing and entering into this Agreement. This is the full and complete agreement of the Parties. Plaintiff Charlen Johnson Defendant, City of ille lr ? By: Its: M4Y©9 Plaintiff Tad Johnson / Blake W. Horwitz The Blake Horwitz Law Firm, Ltd 4