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Home My WebLink AboutRESOLUTION - 52-05 - 9/27/2005 - SETTLEMENT AGRMT & MUTUAL RELEASERESOLUTION NO. 52-05 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN FGM, INC., CLARK DIETZ, INC., AIR DESIGN SYSTEMS, INC., U.S. ELECTRIC, INC. AND THE VILLAGE OF ELK GROVE VILLAGE (RENOVATION OF PUBLIC WORKS FACILITY AND WESTERFIELD FIRE STATION) 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 is hereby authorized to sign the attached document marked: SETTLEMENT AGREEMENT AND MUTUAL RELEASE 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. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 27" day of September 2005 APPROVED this 27th day of September 2005 APPROVED: Mayor Craie B. Johnson Village of Elk Grove Village ATTEST: Ann 1. Walsh, Village Clerk By: Margit C. Thompson, Deputy Village Cie �SAg�G�iez�rD�ignUSEImdc SETTLEMENT AGREEMENT AND MUTUAL RELEASE WHEREAS, the Village of Elk Grove Village C'Village") entered into a contract dated June 11, 1999, for architectural and engineering services (the "AIE Contraef') to be performed by FGM, Inc. CTGM") for a project to renovate a Public Works Building and Fire Station as more fully described in the A/E Contract (the "Project"); WHEREAS, FGM entered into a contract dated August 16, 1999, for mechanical, electrical, plumbing and fire protection engineering services (the "MEP Contract") to be performed by Clark Dietz, Inc. ("Clark Dietz") for the Project; WHEREAS, the Village entered into a contract dated March 14, 2000, for construction management services (the "C/M Contracf) to be performed by Clark Dietz for the Project. WHEREAS, Air Design Systems, Inc. ("Air Design") entered into a contract dated March 14, 2000, (the "Air Design Contract") to provide for the Village and/or Clark Dietz construction of certain heating, ventilating and air conditioning for the Project; WHEREAS, U.S. Electric, Inc. ("U.S. Electric") entered into a contract dated March 14, 2000, (the "U.S. Electric Contract) to provide for the Village and/or Clark Dietz construction of certain electrical portions for the Project; WHEREAS, the Village, Clark Dietz, Air Design and U.S. Electric have made certain claims against FGM for errors and omissions in the design of the Project and for causing delays and other damages and otherwise for breach of FGM's obligations under the A/E Contract and otherwise (together the "Claims"). WHEREAS, FGM in turn made certain claims against Clark Dietz for errors and omissions in the mechanical, electrical, plumbing and fire protection engineering of the Project and causing delays and other damages and otherwise for breach of Clark Deitz's obligations under the MEP Contract and otherwise with respect to the Claims. WHEREAS, FGM claimed certain amounts remained to be paid by the Village to FGM under the A/E Contract. WHEREAS, the Village, FGM, Clark Dietz, Air Design and U.S. Electric (together the "Parties" and individually a "Party") wish to settle the Claims and all other disputes among the Parties hereto; NOW, THEREFORE, in consideration of the payments, releases and other terms and conditions herein, the value and sufficiency of which are hereby acknowledged, the Parties agree as follows: I . The above written recitals are made part of this Settlement Agreement and Mutual Release (this "Agreement); 2. Except as expressly stated in Paragraph 3 below, each of the Parties does hereby, fully and finally, release, acquit and discharge each other Party and its respective parents, subsidiaries or affiliates or any of them, and any of their respective past or present officers, directors, stockholders, employees, agents, attorneys, representatives, insurers, assignors or assignees of, from or for any and all claims, demands, rights of action, causes of action, lawsuits, arbitrations, judgments, claims for rescission or discharge, claims for costs, attorneys' fees, sanctions, damages, profits, losses, expenses, payments due or requests for relief of any character whatsoever, legal or equitable, known or unknown, developed or undeveloped, anticipated or unanticipated, whether accrued or hereinafter maturing that any such Party now has and could have up to the effective date of this Agreement against any of the other Parties with respect to any Claims, any act or omission in connection with the Project, or any work or services under the A/E Contract, the MEP Contract, the C/M Contract, the Air Design Contract or the U.S. Electric Contract. 2 In no event shall any release under this Agreement bar the right of any Party to bring any claim or lawsuit against any other Party for contribution or indemnity (if such right to indemnification expressly exists by contract) for any claims of third -parties for personal injury, including death. 4. FGM shall pay by check jointly payable to the Village and Clark Dietz the sum of $111,525 within fourteen (14) days after the last Party signs this Agreement, at which time this Agreement shall be effective. The Village and Clark Dietz shall distribute such sum among each other and to Air Design and U.S. Electric as they shall agree, which agreement and distribution are not part of this Agreement and any dispute thereon shall have no effect on this Agreement. The Parties hereby acknowledge that they are and have been represented by counsel in connection with the negotiation and preparation of this Agreement and that its provisions and the legal effect thereof have been explained to them; that they understand all the provisions hereof and that they are giving a general release; that they have entered into this Agreement freely and voluntarily without coercion or undue influence; and that the representatives of the Parties executing this Agreement are duly authorized and competent to do RIIJI 6. No term, condition, or provision of this Agreement shall be modified, waived, or changed in any way except in writing executed (with the same formalities hereof) by the Party to be charged with any such modification, waiver, or change. 7. This Settlement Agreement may be signed in duplicate counterparts and signatures transmitted by facsimile or electronic means are valid and acceptable. Each counterpart shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representative as of the day and year set forth by their names. VILLAGE OF ELK GROVE VILLAGE, FGM, INC., By: Craig B. Johnson By: Its: Elk Grove's Village Trustees through its: President its President Date: September 27, 2005 Date: CLARK DIETZ, INC. AIR DESIGN SYSTEMS, INC. LE Its: President Date: U.S. ELECTRIC, INC. Its: President Date: 4 Its: President Date: