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HomeMy WebLinkAboutRESOLUTION - 86-20 - 12/8/2020 - Settlement Agreement Current Litigation-Biesterfield Partners, LLC, GulloRESOLUTION NO.86-20 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A SETTLEMENT AGREEMENT INVOLVING CURRENT LITIGATION WITH THE VILLAGE OF ELK GROVE VILLAGE NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois, as follows: Section 1: That the Mayor be and is hereby authorized to sign the attached documents marked: SETTLEMENT AGREEMENT a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said document upon the signature of the Mayor. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. Section 3: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 8t' day of December 2020. APPROVED this 8th day of December 2020. APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Loretta M. Murphy, Village Clerk SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into as of December 8, 2020 ("Effective Date"), between WESTERFIELD PARTNERS, LLC, GULLO PROPERTY, LLC, ELMHURST LANDMEIER PROPERTY, LLC, HIGGINS ROPPOLO, LLC, ROPPOLO DRIVE, LLC, and MARIO GULLO, an individual, (collectively, the "Gullo Parties"), on the one hand, and THE VILLAGE OF ELK GROVE VILLAGE, including all of its elected and appointed officials, employees and agents, (collectively, the "Village"), on the other hand. The Gullo Parties and the Village are collectively referred to herein as the "Parties" and individually as a "Party." RECITALS: WHEREAS, on June 28, 2018, the Village adopted Ordinance No. 3559 approving an annexation agreement between the Village and the Metropolitan Water Reclamation District of Greater Chicago (the "MWRD") whereby the Village would annex three parcels of property belonging to the MWRD and identified as PINs 08-26-102-037-0000, 08-26-400-012-0000, and 08-26-200-016-0000 (collectively, the "MWRD Property") pursuant to Section 7-1-1 of the Illinois Municipal Code, 65 ILCS 5/7-1-1, (the "MWRD Annexation Agreement'); WHEREAS, on January 8, 2019; the Village adopted Ordinance No. 3584, in relation to annexation of certain MWRD Property; WHEREAS, on January 22, 2019, the Village sent a notice of proposed annexation of certain properties owned and managed by the Gullo Parties (the "Gullo Property") pursuant to Section 7-1-13 of the Illinois Municipal Code, 65 ILCS 5/7-1-13; WHEREAS, the Village stated its intent to annex the Gullo Property, along with other properties at its February 12, 2019 meeting of the Village Board of Trustees; WHEREAS, on February 8, 2019, the Gullo Parties filed a Verified Complaint in the Circuit Court of Cook County against the Village entitled People Ex Rel Biesterfield Partners, LLC, et al. v. The Village Of Elk Grove, Case No. 2019 CH 01673, (the "Litigation"), WHEREAS, on October 24, 2019, the Gullo Parties filed a Verified Second Amended Complaint; WHEREAS, on August 10, 2020, the Village filed a Verified Answer, Justification, and Affirmative Defense to the Verified Second Amended Complaint; WHEREAS, on September 15, 2020, the Village filed a Motion for Judgment on the Pleadings which remains pending; WHEREAS, the Parties desire and have agreed to fully settle and compromise the claims asserted in the Litigation without the admission of any liability in order to avoid further costs associated with continued proceedings; and NOW, THEREFORE, in consideration of the representations, warranties, mutual covenants, promises, agreements, and understandings set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the Parties agree as follows: 1. Recitals. The above recitals are an integral part of this Agreement and are hereby incorporated and made a part of this Agreement. 2. The Gullo Annexation Agreement. The Parties agree to enter into a valid and binding annexation agreement the principal terms of which are set forth in Paragraph 2 b. below (the "Gullo Annexation Agreement"). The Village shall take all actions legally required to be taken to approve, execute, and deliver the Gullo Annexation Agreement (including, without limitation, all legally required notices, hearings, and actions by the Village Board of Trustees), and the Parties shall cause the Gullo Annexation Agreement to be fully executed, delivered, and recorded with the office of the Cook County Recorder of Deeds, by February 10, 2021. a. The Gullo Property. Subject to the execution of the Gullo Annexation Agreement by their respective owners, where appropriate, in their capacity as beneficiaries of the land trusts holding legal title to the properties, (the "Gullo Owners"), the following specifically identified properties shall be the subject of the Gullo Annexation Agreement and are collectively referred to herein as the "Gullo Property": (i) 2010 E. Higgins Road, Elk Grove Village, Illinois 60007 (PINS 08-26-102-002- 0000; 08-26-102-036-0000; 08-26-102-040-0000); (ii) 2050 E. Higgins Road, Elk Grove Village, Illinois 60007 (PIN 08-26-102-041- 0000); (iii) 2101 E. Higgins Road, Elk Grove Village, Illinois 60007 (PIN 08-26-103-014- 0000); (iv) 2151 E. Higgins Road, Elk Grove Village, Illinois 60007 (PIN 08-26-103-015- 0000); (v) 650 Roppolo Drive, Elk Grove Village, Illinois 60007 (PINS 08-26-103-016-0000 and 08-26-103-017-0000); (vi) 2201 E. Higgins Road, Elk Grove Village, Illinois 60007 (PINS 08-26-103-021- 0000 and 08-26-103-022-0000); and (vii) 750 Richard Lane, Elk Grove Village, Illinois 60007 (PIN 08-26-301-045-0000). b. The Gullo Annexation Agreement's Principal Terms. The Parties agree that the Gullo Annexation Agreement shall include but is not limited to the following principal terms (the "Principal Terms"). The Parties reserve the right to include mutually agreed upon additional terms in the final and definitive Gullo Annexation Agreement (the "Additional Terms") provided they are not inconsistent with and do not otherwise contradict the Principal Terms. To the 2 extent there is a conflict between any Principal Terms and any Additional Terms, the Principal Terms shall control. (i) The Gullo Owners, or any of them, shall have the right, but not the obligation, to file with the Village a petition for annexation ("Petition") for the annexation by the Village, pursuant to 65 ILCS 5/7-1-8, of some or all of the Gullo Property (the "Petition Property"). (ii) If any of the Gullo Owners file a Petition with the Village seeking the annexation by the Village of any Petition Property owned by such party, the Village shall annex, pursuant to 65 ILCS 5/7-1-8, within 90 days after receipt of the Petition, the Petition Property. In the event that, after the filing of any Petition with the Village, the Gullo Owners and the Village are not able to mutually agree upon the terms pursuant to which the Petition Property will be annexed by the Village, upon and after annexation of the Petition Property all uses and structures in existence on the Petition Property on the date that the Village receives the Petition shall be legal nonconforming uses and structures and shall be permitted to remain unless and until such legal nonconforming uses and structures are substantially changed or abandoned. (iii) Except in accordance with the express provisions of the Gullo Annexation Agreement, the Village shall not: (a) pursuant to any provision of Article 7, Division 1 of the Illinois Municipal Code, 65 ILCS 5/7-1-1 et seq., including, without limitation, Section 7-1-13 of the Illinois Municipal Code, annex the Gullo Property, or any part thereof; (b) condemn the Gullo Property, or any part thereof, through the Village's power of eminent domain; or (c) take any actions in furtherance of the annexation or condemnation of the Gullo Property, or any part thereof. (iv) Notwithstanding the provisions of Section I1-15.1-2.1 of the Illinois Municipal Code, 65 ILCS 5/11-15.1-2.1, the Village agrees, in the exercise of its home rule power, that, at all times during which the Gullo Property has not been annexed by the Village: (a) the Gullo Property shall not be subject to the ordinances, control, and jurisdiction of the Village; and (b) the Village shall not in any way assert that the Gullo Property is subject to, or attempt to enforce with respect to the Gullo Property, the ordinances, control, and jurisdiction of the Village, including the Village's extraterritorial planning jurisdiction. 3. Termination of the MWRD Annexation Agreement. The Village agrees to take all good faith, reasonable, and diligent acts to validly and effectively terminate the MWRD Annexation Agreement by March 15, 2021. The Village shall provide the Gullo Parties a copy of any and all documentation in its possession related to said termination on or before March 15, 2021. 4. Disconnection of the MWRD Property. The Village agrees to take all good faith, reasonable, and diligent acts to cause the MWRD Property to be validly and effectively disconnected from the Village pursuant to 65 ILCS 5/7-3-4 and 5/7-3-5 by no later than March 15, 2021.The Village shall provide the Gullo Parties a copy of any and all documentation in its possession related to said disconnection on or before March 30, 2021. 5. Property Taxes. To the extent the Village levied or extended any taxes against the Gullo Property as a result of public records which incorrectly show the Gullo Property as annexed by and to the Village, the Village acknowledges and agrees that no tax is 3 due and covenants that it will not seek to collect any such taxes. To the extent the Gullo Parties paid any such taxes, the Village shall cause such payments to be refunded or credited to the Gullo Parties by March 15, 2021. 6. Dismissal of the Litigation. The Gullo Parties shall voluntarily dismiss the Litigation without prejudice and without costs pursuant to 735 ILCS 5/2-1009 by February 15, 2021. The dismissal shall convert to with prejudice no later than April 30, 2021. 7. Release of Claims. a. Except as expressly provided herein, as of the date the Litigation is dismissed, the Gullo Parties, and their managers, members, owners, directors, officers, employees, representatives, successors, assigns, (the "Gullo Releasors"), hereby release and discharge, unconditionally, absolutely, and forever, the Village, and, in their official capacities, its managers, members, elected and appointed officials, trustees, officers, employees, representatives, administrators, successors, and assigns, (the "Village Releasees"), of and from any and all claims, dues, sums of money, matters, issues, rights, accounts, contracts, promises, demands, causes of action, suits and liabilities, whether known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, of every nature and description whatsoever, that are, have been, could have been or in the future might be, asserted by the Gullo Releasors in any action, suit, or proceeding against the Village Releasees for, upon, or by reason of, any acts or omissions related to or arising from the Litigation, (the "Gullo Released Claims"); provided, however, that nothing herein shall release or otherwise affect any obligation or remedy of any Party under this Agreement. b. Except as expressly provided herein, as of the date the Litigation is dismissed, the Village, and its managers, members, elected and appointed officials, trustees, officers, employees, representatives, administrators, successors, and assigns, (the "Village Releasors"), hereby release and discharge, unconditionally, absolutely, and forever, the Gullo Parties, and their managers, members, owners, directors, officers, employees, representatives, successors, assigns, including Mario Gullo, personally, and his heirs, legatees, and personal representatives, (the "Gullo Releasees"), of and from any and all claims, dues, sums of money, matters, issues, rights, accounts, contracts, promises, demands, causes of action, suits and liabilities, whether known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, of every nature and description whatsoever, that are, have been, could have been or in the future might be, asserted by the Village Releasors in any action, suit, or proceeding against the Gullo Releasees for, upon, or by reason of, any acts or omissions related to or arising from the Litigation, (the "Village Released Claims"); provided, however, that nothing herein shall release or otherwise affect any obligation or remedy of any Party under this Agreement. C. This Agreement is intended by the Parties to release the Gullo Released Claims and the Village Released Claims (collectively, the "Released Claims") whether or not known or suspected to exist at the time of execution of this Agreement, and regardless of the forum in which such claim, demand, or cause of action might be brought anywhere in the world. As to all Released Claims, the Parties expressly waive any and all rights they may have, jointly or severally, or claim to have under any provision of law in any C! state, country, or jurisdiction that in any way limits the terms of this Agreement to claims about which the Parties are aware at the time of the execution of this Agreement. Any such provision of common or statutory law is expressly waived and relinquished by and on behalf of the Parties. 8. Non-Disparnement. a. The Parties agree that, unless required to do so by legal process, they will not, for the period from after the Effective Date of this Agreement and through December 1, 2024 (the "Non -Disparagement Period"), make any disparaging statements or representations, either directly or indirectly, whether orally or in writing, by word or gesture, to any person whatsoever, about the other Party or any person or entity affiliated with the other Party. For purposes of this Paragraph, a disparaging statement or representation is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, competency to hold or run for office, good character, or quality of the person or entity to whom the communication relates. This statement or representation includes, but is not limited to, statements or representations in the form of a robocall, billboard, social media post, or mailer. A disparaging statement shall not include any lawful citation, rejection, or denial issued by the Village to any of the Gullo Parties in the ordinary course of business. b. If Mario Gullo is proven by clear and convincing evidence before a mutually agreed upon neutral retired judge to have disparaged the current Village Mayor Craig Johnson ("Johnson") in violation of this Paragraph within the Non -Disparagement Period, the Village may elect to rescind the Agreement, declare it null and void, and place the Parties in the positions they were in prior to the Effective Date of the Agreement, including termination of the Gullo Annexation Agreement, reinstatement of the MWRD Annexation Agreement, reannexation of the MWRD Property, and reinstatement of the Litigation. The Village's remedy to rescind the Agreement is limited to the violation set forth in this Paragraph 8.b. C. The Parties acknowledge that prior to the Effective Date, Johnson has been the subject of certain prior robocalls, billboards, and mailers (the "Anti -Johnson Materials"). To the extent that the content of any of the Anti -Johnson Materials is used in communications disseminated by third parties within one (1) year of the Effective Date to disparage Johnson, Mario Gullo will issue a published public statement condemning such communications. 9. Enforcement. In the event that the Parties breach any obligations under Paragraphs 2, 3, or 4, or any other obligation in the Agreement involving real property, the Parties agree that the non -breaching Party would suffer irreparable harm for which money damages would be an inadequate remedy, and is entitled to specific performance and injunctive relief to enforce the breaching Party's obligations under the Agreement. If any action or other proceeding is commenced to enforce any of the terms of this Agreement, the performance thereof, or of any other judgment or decree embodying any of its provisions, the prevailing party shall be awarded reasonable attorneys' fees, costs, and expenses, including 5 those incurred in enforcing and collecting a judgment, in addition to any other relief granted. The Parties agree that the Circuit Court of Cook County will retain jurisdiction to enforce the Agreement and all other terms of the Agreement. 10. Effective Date. This Agreement shall be executed by the Parties and shall become binding upon the Parties immediately upon the Effective Date as defined above. 11. No Admission of Liability. The Parties agree and acknowledge that the consideration exchanged herein does not constitute and shall not be interpreted as any admission of any improper acts, conduct, liability or guilt on the part of any of the Parties for any legal liability or violation of any local, state, or federal statute, regulation, law or ordinance, but that this Agreement is entered to terminate the claims of the Parties in the Litigation and results from the desire to expeditiously resolve disputed issues of law and fact. 12. Further Assurances. The Parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force to the terms and intent of this Agreement that are not inconsistent with its terms. 13. Additional Terms. a. Each Party warrants and represents he, she, or it has entered into this Agreement voluntarily, that he, she, or it is fully aware and clearly understands all of the terms and provisions contained in this Agreement, and that he, she, or it has had full opportunity to confer with, and has in fact consulted with legal counsel in connection with his, her, or its consideration and execution of this Agreement. b. Each Party acknowledges and agrees that this Agreement sets forth all promises, agreements, conditions, inducements, understandings, representations and warranties between the Parties. There are no promises, agreements, conditions, inducements, representations or warranties, express or implied, between the Parties, other than as specifically set forth herein. C. Each Party acknowledges and agrees that, except as provided for herein, this Agreement: (i) contains the complete agreement between the Parties on this subject matter, (ii) supersedes any and all prior and contemporaneous communications, agreements, and understandings, written or oral, and (iii) may not be modified, amended, annulled, rescinded or otherwise changed unless in writing signed by all Parties. d. This Agreement is binding on and inures to the benefit of the Parties and their respective current, former and future parent companies, subsidiaries, divisions, affiliates, ventures, predecessors, successors, officers, directors, boards, elected and appointed officials, trustees, principals, members, managers, partners, owners, shareholders, employees, associates, spouses, heirs, attorneys, agents, representatives, and assigns. e. Each Party acknowledges and agrees that this Agreement shall be governed by, interpreted under, and enforced in accordance with, the laws of the State of Illinois without regard to its conflict of laws principles, and any action to enforce the terms of r this Agreement shall be brought in the federal or state courts located within Cook County, Illinois. f. The Parties represent and warrant to each other that they have the capacity to execute this Agreement. Each person executing this Agreement in a representative capacity warrants to the other Parties that he, she, or it has the right, power, legal capacity, and authority to enter into this Agreement on behalf of the represented Party. Each Party represents and warrants to the other Parties that this Agreement is a valid and binding obligation of the Party and that the terms and provisions of this Agreement are enforceable against such Party. g. In the event that any term, covenant or provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or against public policy, that term, covenant or provision shall be severable and the remaining provisions of this Agreement shall remain in full force and effect. h. Each Party acknowledges and agrees that this Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. i. Signatures to this Agreement may be delivered by facsimile or e-mail with each executed counterpart in facsimile or e-mail standing as an original. IN WITNESS WHEREOF, the Parties, duly authorized, have entered into this Agreement as of the date stated above. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 7 SIGNATORIES: BIESTERFIELD PARTNERS, LLC By: Its: GULLO PROPERTY, LLC By: Its: ELMHURST LANDMEIER PROPERTY, LLC By: Its: HIGGINS ROPPOLO, LLC By: Its: ROPPOLO DRIVE, LLC By: Its: MARIO GULLO THE VILLAGE OF ELK GROVE VILLAGE By: Its: Mayor Attest By: Its: Village Clerk 3