~I~EO

JUN 22

2004

STATE OF ILLINOIS

COUNTY OF CO 0 K

)

)

)

STATE

OF ILLINOIS

PoIIu~Controi Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORRY GABEL, MYRA GABEL, DON

FOREMAN, MARSHA FOREMAN, KEITH

PINS ONEAULT and

TRACY PINSONEAULT,

vs.

Complainants,

THE WEALSHIRE, INC., an Illinois

Corporation,

Respondent.

)

)

)

)

)

)

No.

PCB 03-38

)

)

)

)

)

NOTICE OF FILING

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

100

W. Randolph

—

Suite 11-500

Chicago, IL

60601

FAX:

312-814-3669

Bruce T. Logan

Ash, Anos, Freedman & Logan, L.L.C.

77 W. Washington

—

Suite 1211

Chicago, IL

60602

FAX:

312-346-7847

PLEASE

TAKE NOTICE that

on the 22nd

day of June,

2004, there was

filed with

the

Illinois

Pollution

Control

Board

the

attached

Joint

Motion

for

Voluntary

Dismissal

and

Settlement Agreement,

copies ofwhich are herewith served upon you.

Mitchell S. Feinberg

CHIJHAK & TECSON, P.C.

Attorney for Complainants

30 S. Wacker Drive

—

Suite 2600

Chicago, IL

60606

312-444-9300

Firm ID No. 70693

CHUHAK & TECSON, P.C.

S. Feinber

Complainants

428281.1.11852.22239

---

AFFIDAVIT OF SERVICE

The undersigned, being first duly sworn

on oath, deposes and

says that he

caused to be

served the above

and

foregoing Notice of Filing and

Joint Motion for Voluntary Dismissal

and

Settlement Agreement, by sending a copy to:

Bradley P. Halloran, Rearing Officer

Bruce

T. Logan

Illinois Pollution Control Board

Ash, Anos, Freedman & Logan, L.L.C.

100 W. Randolph

—

Suite 11-500

77 W. Washington Street

—

Suite 211

Chicago, IL

60601

Chicago, IL

60602

FAX:

312-814-3669

FAX:

312-346-7847

by depositing same in the U.S.

Mail Chute at

30 S. Wacker Drive,

Chicago, Illinois

60606, with

proper postage prepaid, before 5:00 p.m. on June 22, 2004.

“OFFICIAL SEAL”

Phoebe R. Bindiger

Notary

Public,

State of Illinois

My Commission Exp.

03/25/2006

Mi4WFeinbe&~~~

SUB~

AN~.S.W0RNto before me

dayof

~Q/7~’

,2004

428281.1.11852.22239

-2-

---

JUN—11—2054

11:56

ASH

OS FREEDMAN LOGAN

3123467847

P.02

CLERK’S OFFICE

JUN

222004

STAT~OFLUNOXS

)

STATE OF ILLINOIS

)

~

PoIIut~onControl Board

COTJNI~

C’F COOK

)

STATE OF

JLLIN’OIS

POLLUTION CONTROLBOARD

100W.

RANDOLPH STREE’L SUITE

11-500

CHICAGO, ILLINOIS

60601

MORRY GABEL, W~BA

OA~P~L,

DON

FOREMAN, MARSHA FOREMAN,

)

F(ETTH

PIN

SON~AULT

and

TRACY

PINSONEATJLT.

)

)

Complainant,

)

)

vs.

)

No.PCBO3-38

)

T1~

WRAI.SE~B,

INC.,

an

)

ILLINOIS

CORPORATION.

)

)

ReApondent.

)

)

JOINT MOflONFOR VOL

Y_PIS~S

SAL

NOW

COME

the Complainants,

MORRY

GABEL, MYL4 GABEL,

DON

FOREMAN,

MARSHA ~‘OREMAN,

KEITII

PINSONAtTLT

and TRACY PINSONAIJLT,

by

theirAttorneys,

Mitchell

S.

~einberg

of

Chuhak & Teczon,

p.c.,

and the

D~fenthrit,TRE WBALSHJRE, INC.,

by

itS Attomey~,

~ruce T. Logan

of

Ash, Ano~,

Freedman & Logan,

LLC..

andjointly move

that this

cause

be

d smissed,

without

prejudice.

The

pzrt~esentex~ed

into

a

Settlement

Agreement

on

mutually

a~reeab1etezrns

following

Defendant’s

modification.s

to

its

ci)iJler

units.

U~d~r

the

Settlement

agreement,

the

pa~t~es

will

conduct joint

testing

and

the

Re~pond~nt

will

perIbnn

further modt~cation(s)

if

the wiit

is not within the

statutory I1lino~ssound measurement

limits,

and

the

Complanants,

in their sole

discretion, detennine the sound

1~veis

~inaceeptab1e

to them.

The

parties furti

er

a~ee

that

the

Complainants reserve

their

right

to refile

their

complaint.

4~72O~’i.1.11

552.~

2239

---

JUN—11—2004

11:57

ASH ANOS FREEDMAN LOGAN

3123467847

P.03

WH)~RBFORB,

the

parties jointly move

f’or an order

of

voluntary dismissal without

prejudice to re-filing.

CQMPLM’~AI~TS~

RESPPNDENT~

Mony

Gabet, Myra

Gabel, Doriald.Foreman

The

Wealshhe,

Inc.

MarshaFor~inan,

KeithI’insonaul;

and

Chui

iak& Tecson,

P.C.

Asb1Aztos,

F

an&

Logan~

Mitchell S.

E~einberg

CHUHAX(

~

TECSON,

PVC.

30 S. Waok’~r

Drive

—

Suite2600

~Thicago,

IL 60606

312-444-93)0

Firm

)DNo 70693

Attorneys

fcr

Complainants

Bruce

T. Logan

Ash,

Anos,

~reedman

&Logan,L.LC.

77 West

Washington Street

Chicago,

IL 50602

3I2-346-13~9

Attorneys fc rRespondent

481704.1.11852.2

~239

TOTAL

P.03

---

RECEIVED

CLERK’S OFFICE

JUN 22

2004

SETTLEMENT AGREEMENT

STATE OF ILLINOIS

NOW

COMES

THE

WEALSHIRE, iNC.

(herein the “Owner”)

and ~

Board

MYRA

GABEL,

DON

FOREMAN,

MARSHA

FOREMAN,

KEITH

PINS ONAULT,

and

TRACY

P1NSONEAULT

(herein

the

“Complainants”),

and

enter

into

this

Settlement

Agreement

uponthe

following:

WHEREAS,

the

Complainants

filed

a Formal

Complaint

before

the

Illinois

Pollution

Control

Board

which

is

currently

pending under PCB

03-38

concerning

allegations

of

noise

pollution emanating

from the

chiller

system

on the

Owner’s property

at

150

Jamestown Lane,

Lincolnshire, Illinois 60069;

and

WHEREAS, the parties

have now

completed discovery,

including taking the depositions

of the Complainants,

the depositions of the Owner’s

employees

and

officers,

namely,

Arnold

Goldberg

and

Ralph

Chapman,

and

the

depositions of the Complainants’

expert,

Gregory Zak

and the Owner’s expert, Timothy O’Neill; and

WHEREAS,

during the period following the filing of the Formal Complaint,

the Owner

has made certain improvements and modifications to~the

chiller system;

and

WHEREAS, the chiller equipment will be placed back into operation on or about May

15,

2004 for the summer cooling season; and

WHEREAS, the parties have resolved to try to

conclude

the dispute between themselves

without proceeding to hearing on the Formal Complaint

at this time; and

WHEREAS, the parties have reached a mutual understanding and agreement.

NOW,

WHEREFORE, upon the good and

valuable mutual

promises

as

set

forth herein,

the sufficiency of which is acknowledged by the parties, the parties

do agree as follows:

---

1.

The

Complainants

will

voluntarily

dismiss

the

pending

Formal

Complaint,

without prejudice, and subject to future refilling at any point in time.

2.

The Owner agrees that should the Complainants refile a Formal Complaint before

the Illinois Pollution

Control Board,

that the Owner will not

assert defenses to

such

a re-filing

based upon

laches,

res judicata,

the

statute of limitations,

or any

other

defense related to

the

voluntary dismissal.

Nothing

herein

shall be

deemed

a waiver by the

Owner of the Owner’s

right to a defense on the merits.

3.

The parties

agree that within 30 days of the chiller units being back in operation,

they will

schedule

a joint

meeting of Gregory

Zak

and

Timothy O’Neill

at

The Wealshire

to

conduct sound testings of the

chiller units

to

determine if the modifications and

changes

made

have

improved

the noise

level.

The testing will

be

performed by

Gregory

Zak

and

Timothy

O’Neill will observe.

It is agreed by the parties that the ambient sound level will be taken at the

same site

as the sound level testing site.

The Owner

agrees to

arrange for the chiller units to be

turned on and off at the direction of Gregory Zak during the testing.

4.

The notes and test results of Mr. Zak and

Mr. O’Neill will be exchanged between

them and made available to the parties’ attorneys

as soon

as they are available.

5.

If the testing

shows

that

the sound coming from

the chiller

units

is

within

the

statutory

level

or

it

is

determined

by

the

Complainants

that

the

level

is

acceptable

to

the

Complainants

in

their

sole

discretion,

the

Complainants

agree

not

to

refile

their

Formal

Complaint,

so long

as the sound remains within the statutory level or continues to

be acceptable

to

Complainants.

6.

If the testing

determines

that

the sound emanating

from

the

chiller

units

is

not

within

the

statutory

standard

and

the Complainants

in their

sole

discretion

determine that

the

---

sound

level

is

unacceptable

to

them,

the

parties

agree

to

mutually

work

toward

additional

modifications

to

further

ameliorate

the

sound

emanating

from

the

chiller

units,

as

soon

as

practicable and without undue delay.

7.

In

determining what, if

any,

additional modifications

shall

be

made,

the Owner

intends to

employ Timothy O’Neill of O’Neill Engineered

Systems, Inc.

to make

formal written

recommendations to the Owner.

Once they are received, they will be given to Mr. Zak and to the

Complainants’

attorney for their review and comment.

8.

If the proposed

additional

modifications

require

the

approval of the Village

of

Lincolnshire,

then it is agreed by the Complainants that the Owner will be

given sufficient time

to obtain the approvals, provided the Owner acts reasonably and with due diligence in applying

for and obtaining the approvals.

9.

If there is any additional

modifications made

to

the chiller units, then there shall

be

additional

testing of the chiller

units

under the

same

criteria

as provided

for

above.

If the

chiller units

still

do not

fall within the

statutory

standard,

then the

Complainants in their

sole

discretion may either negotiate further with the Owner, or Complainants may refile their Formal

Complaint.

The Owner may agree

to make further modifications.

The information gained from

any

tests

conducted

under

the

terms

of this

Settlement Agreement

or such

other

and

further

testing that theymay have performed may be used by the parties in any

future proceeding.

10.

If

a

Formal

Complaint

is

filed

within

2

years

of the

date

of this

Settlement

Agreement,

the

parties

agree

that

only

the

depositions of

the

parties’

expert

witnesses

and

consultants

and

any

additional

or

new

witnesses

shall

be

taken.

The

depositions

of

the

Complainants

and

the

previously

deposed

employees

of the Owner,

i.e.

Arnold Goldberg

and

-3-

---

Ralph

Chapman, may not be

taken

except by mutual

agreement.

Nothing herein

shall prevent

said

Complainants or Owner’s employees from testifying at any hearing on

a re-filed complaint.

11.

This

Settlement

Agreement

contains

the

entire

agreement

of the

parties.

The

parties have had

the advice

and

counsel of their respective attorneys

and

warrant and

represent

that

they

have

been

informed

and

are

fully informed

as

to

the

terms

and

provisions

of this

Settlement

Agreement.

This

Settlement Agreement shall be

interpreted

as mutually drafted by

the parties.

12.

This Settlement

Agreement

may be

signed in

counterpart

and

exchanged,

and

each Agreement so signed and exchanged shall constitute

an original Agreement.

SIGNED

as of this

____

day of May, 2004.

THE WEALSHIRE, INC.

By:

Its President

~1A~~)

TRACY PIN

0

AULT

F:\RAM\WEALSkiIRE\SETTLEMENT AGREEMENT 5-i2-cleandoc

-4-

---

Ralph Chapman,

may not be

taken except by mutual

agreement.

Nothing

herein shall prevent

said Complainants or Owner’s employees from testifying at any hearing on are-filed complaint.

11.

This

Settlement

Agreement contains

the

entire

agreement

of the

parties.

The

parties

have had the

advice

and

counsel of their respective attorneys

and

warrant

and

represent

that

they

have

been

informed

and

are

fully

informed

as

to

the

terms

and

provisions

of this

Settlement

Agreement.

This

Settlement Agreement shall be

interpreted

as mutually drafted by

the parties.

12.

This

Settlement

Agreement

may

be

signed in

counterpart

and

exchanged,

and

each Agreement so signed and exchanged shall constitute an original Agreement.

SIGNED

as of this

____

day of May, 2004.

THE WEALSHIRE, iNC.

By:

Its President/j

F:\RAM\WEALSHIRE\SETTLEMENT

AGREEMENT 5-12-clean.doc

MORRY GABEL

MYRA GABEL

DONFOREMAN

MARSHA FOREMAN

KEITH PINSONEAUILT

TRACY PINSONEAULT

-4-