CCR2011001-Settlement-Lemke
STATE OF WISCONSIN CITY OF MUSKEGO WAUKESHA COUNTY
RESOLUTION NO. 001-2011
A RESOLUTION TO APPROVE AND ENTER INTO A SETTLEMENT AGREEMENT
REGARDING THE LITIGATION KNOWN AS VICTOR N. AND BETTY LEMKE
REVOCABLE TRUST AND BETTY LEMKE VS. THE CITY OF MUSKEGO,
WAUKESHA COUNTY CIRCUIT COURT CASE NO. 09 CV 2602
WHEREAS, the City of Muskego has, since July 9, 2009, defended an action in
Waukesha County Circuit Court captioned “Victor N. and Betty Lemke Revocable Trust and
Betty Lemke, plaintiffs, vs. The City of Muskego, Defendant,” Case No. 09 CV 2602, regarding
alleged claims of damage to a certain structure on plaintiffs’ property as the result of alleged
conduct by the City relative to the installation of a dam and spillway creek serving Little
Muskego Lake, which is adjacent to plaintiffs’ real property; and
WHEREAS, the Court ordered the plaintiffs and the City to attend and conduct mediation
to explore possible settlement of the litigation; and
WHEREAS, the plaintiffs and the City conducted mediation on December 8, 2010, and
reached a tentative agreement, subject to the approval of the Common Council, that would settle
the litigation and resolve all other claims, issues and disputes existing between the parties; and
WHEREAS, the City of Muskego has determined that it is appropriate and economically
prudent to enter into the settlement agreement achieved at the mediation of the parties.
NOW THEREFORE, THE COMMON COUNCIL FOR THE CITY OF MUSKEGO,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1: SETTLEMENT TERMS.
The City of Muskego Common Council approves the terms of the proposed settlement
agreement achieved at the mediation held on December 8, 2010, including the following as more
specifically set forth in the attached “Stipulation and Order Dismissing Action:”
a. Plaintiffs shall deliver and convey to the City the easement
interests described and provided in the attached “Permanent Easement, Right to
Demolish All Structures Within Easement, Right to Construct Access Road
Within Easement, and Temporary Easement.”
b. Plaintiffs shall deliver and convey to the City the ownership
interests described and provided in the attached “Warranty Deed.”
c. The City shall pay plaintiffs the total sum of $157,000.00. The
City’s insurance carrier, Liberty Mutual, shall reimburse the City the total sum of
$5,000.00, as its contribution to the settlement amount paid to the plaintiffs.
d. The City shall purchase and cause the conveyances of real estate
interests to be insured through title insurance issued by Chicago Title Insurance
Company, and to that end, the parties shall permit modifications to the attached
conveyance instruments to comply with such title insurance requirements.
e. Plaintiffs and their respective heirs, administrators, executors,
successors and assigns, shall completely release and forever discharge the City of
Muskego, together with its insurers, of and from all claims of every nature
whatsoever in any way related to plaintiffs’ real property located in the City of
Muskego, Waukesha County, State of Wisconsin, regardless of whether claimed
by plaintiffs in this action.
f. Notwithstanding the settlement of the action, the City continues to
deny liability for all claims asserted by plaintiffs.
g. Plaintiffs and their respective heirs, administrators, executors,
successors and assigns, shall waive and release all rights under and pursuant to the
provisions of Chapter 32 of the Wisconsin Statutes, titled “Eminent Domain,” and
all rights they may possess under and pursuant to any theory of law regarding
takings or condemnation. The City shall be entitled to terminate and rescind,
without further notice or compensation to plaintiffs, all previous eminent domain
proceedings pertaining to plaintiffs’ real property.
h. The settlement resolves all claims by either party against the other
for attorneys’ fees, costs and disbursements, and expenses.
i. Subject to performance of the foregoing requirements, the
litigation shall be dismissed with prejudice, without costs to any party as against
the other.
SECTION 2: AUTHORIZATION.
The City of Muskego Common Council authorizes the Mayor and City Clerk to execute
and attest all documents and instruments, including, but not necessarily limited to, those attached
hereto, to cause the terms of the settlement agreement to be carried into existence and
effectuated.
SECTION 3: MODIFICATIONS.
The City of Muskego Common Council further authorizes the Mayor, upon consultation
with and approval by the City Attorney, to agree to modifications of the attached documents and
instruments and to the inclusion of additional technical or detail terms as may be required to
finalize the settlement agreement.
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Dated this 11 day of January 2011.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Tracy Snead
Ald. Noah Fiedler
Ald. Keith Werner
This shall certify that this is a true and accurate copy of Resolution No. 001-2011, which was
adopted by the Common Council of the City of Muskego.
Sharon Mueller, City Clerk
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