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CCR1994183aCOMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #183-94 APPROVAL OF CONCEPT FOR SETTLEMENT OF LITTLE MUSKEGO LAKE DAM CASE WHEREAS, the parties to the Little Muskego Lake Dam litigation are proceeding with attempts to settle the litigation surrounding said matter; and WHEREAS, the parties have reached agreement at least as to the general concept to settle said litigation; and WHEREAS, it may be necessary to continue with further negotiations to settle the details of the same. NOW, THEREFORE, BE IT RESOLVED that the Common Council of the City of Muskego does hereby authorize the Mayor and Clerk, in consultation with and with the approval of the City Attorney, to enter a Stipulation and Order resolving this litigation based on the concepts outlined in the attached documents. DATED THIS 23rd DAY OF August 0 , 1994. SPONSORED BY: Mayor David L. De Angelis This is to certify that this is a true and accurate copy of City of Muskego. Resolution #183-94 which was adopted by the Common Council of the 8/94jmb a I DALE W APENZ DONALD 5. MOLTER. JR JOHN P MACT C0"RT wMMlss~oNc~ H STANLEI RIFFLE. WURT COMY15510wER - ERIC 0. SCHLIETER RIC6 D. TRINDL e e uw OlrlCE5 or ARENZ. MOLTER, MACY & RIFFLE. S.C. RO H EAST AVENUE P.O. BOX 13.18 WAUKW WISCONSIN 53187-1348 AcTJst 12, 1994 FAXEG, TOTAL PAGES: 1 Mayor David L De Angelis CITY OF MUSKEGO Post Office Box 903 Muskego, Wisconsin 53150 Re: Little Muskeso Lake Dam Dear Mayor De Angelis: I am in receipt of your faxed Memorandum dated August 11, 1994 concerning the changes in the form of the Easement regarding the above parties, I propose an additional paragraph be added to the Easement on matter. In order to attempt to incorporate the concerns of the the second page prior to the words, "THIS INDENTURE, . . 'I as follows "Except for emergency activities, including inspections after major rains, reasonable notice will be given to the Party of the First Part prior to entry upon lands covered by this Easement. Party of the First Part shall not be allowed to construct foundations in the soils covered by the Easement, but shall be allowed to construct piers and docks as are permitted by governmental regulations but do not interfere with the rights of the Party of the Second Part pursuant to this Easement. The Party of the Second Part will be responsible for structural maintenance of the area within the Easement, but not including piers. Routine maintenance, such as grass cutting, is the any shoreline structures such as allowed seawalls, docks or responsibility of the Party of the First Part. Party of the Second Part will restore any land disturbed during construction, repair, maintenance and reconstruction, excluding trees and shrubs which may be planted by Party of the First Part, but are limited to the following ,I This lanpage should any other interested be reviewed by yourself, Attorney Riffle, DNR and parties Sincerely, ARENZ, MOLTER, MACY & RIFFLE, S C c DSM/~W Ij EASEMENT THIS INDENTURE, made this day of , 1994, by and between hereinafter referred to as party of the first part, and CITY OF MUSKEGO, located in Waukesha County, Wisconsin, hereinafter referred to as party of the second part WITNESSETH: WHEREAS, the party of the first part, owns a parcel of real estate, the party of the first part, holds a mortgage on said real estate and the party of the first part, holds an interest in said real estate located in the City of Muskego and a part of which is described as follows: SEE ATTACHED LEGAL DESCRIPTION MARKED EXHIBIT "1" WHEREAS, party of the second part has requested from the party of the first part a permanent watercourse easement for public watercourse purposes including construction, repair, maintenance and reconstruction of the public watercourse, including but not limited to the dam. NOW, THEREFORE, pxty of the first part, in consideration of the sum of ONE DOLLAR ad other good and valuable consideration, the receipt whereof is hereby Ecknowledged and confessed, do grant and convey unto the party of the second part, forever, a permanent watercourse ezsement for public watercourse purposes including construction, repair, maintenance and reconstruction of the public watercourse, including but not limited to the dam in the City of Muskego, Waukesha County, Wisconsin, on, over and in the following described real estate: SEE ATTACHED LEGAL DESCRIPTION MARKED EXHIBIT "2" USE OF LAND Party of the first part consents to the entry of the employees, workmen, age?ts or independent contractors of party of the second part for and incidental to the construction, repair, maintenance and reconstrnction of said watercourse improvercent, 0 . .- . 0 0 bct reserve to themselves the right to make such use of land included in said easement, subject to the ordinances of the city of Muskego, the regulations of the party of the second part, and the statutes of the State of Wisconsin as will not disturb or interfere with such public watercourse, including but not limited to the dam, or prevent ingress, or egress, thereto for the purpose of construction, repair, maintenance and reconstruction thereof The parties expressly acknowledge that the party of the second part may allow others not parties to this easement to use the easement for the purposes indicated above THIS INDENTURE, upon its acceptance by the party of the first party, shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, successors and assigns. IN WITNESS WEREOF, party of the first part has executed this indenture the day and year first above written. THIS IS NOT HOMESTEAD PROPERTY. STATE OF WISCONSIN ) COUNTY OF WAUKESHA ) ) ss. Personally cane before me this day of 1994, the above Earned , to me known to be the person who executed the foregoing instrument and acknowledged the same. NOTARY PUBLIC, STATE OF WI My commission expires THIS INSTRUMENT WAS DRAFTED BY: Attorney Donald S. Molter, Jr ARENZ, MOLTER, MACY & RIFFLE, S . C. 720 N East Avenue, P 0. Box 1348 Waukesha, Wisconsin 53187-1348 -2- August 22, 1994 The Honorable David L. De Angelis Kayor, City of Muskego F. 0 Box 903 KJskego, WI 53150 Ze: Murn et al. v. City of Muskego Case No.: 92 CV 0578 Dear Mayor De Angelis: have had an additional opportunity to review the proposed Scipulation and Easement. We have some further suggestions regarding rne language of the Stipulation, and further wish to remind you of same of the potential risks associated with approval of the agreement Kith regard to 1 I. l., we feei rhat the language should be amended to Krovide that the City will retrofit the Dam in "reasonable conformity" i.;ith the plans prepared by Ruekfrt & Mielke, subject to amendment from Lime-to-time by the DNR As yol? are aware, there are likely to be a completion date but should inciicate that the proposed date is changes in any construction project Further, we should not guarantee contemplated at this time Kith regard to 7 I. 2., it should be noted that the City would be zccepting liability upon entry of the Order by the Court, "prior to" the construction of the Dam improvements. The specific risks regarding this situation need not be expounded upon. Kith regard to 1 I. 3., it should be noted that the plaintiffs will grant rather than dedicate ar! easement Since the easement speaks for k.erein will grant an easement ir. the form attached hereto as Exhibit icself, the first sentence should be amended to read: "The Plaintiffs nuld strongly urge all parties to utilize the City's proposed significant concerns with regard to its legal efficacy, and therefore, be used to form the basis of further modifications and final agreement easement as recently amended Thf easement and attached letter would cf the parties h-ith regard to 1 I. 4.. it should be specifically noted that nothing will be placed in the easement which may effect the City's easement rights as well as the function of the Dam - - c 'I Attorney Molter has reviewed the proposed easement and has UI WFlCES OF ARENZ. MOLTER. MACY & RIFFLE, S.C. 0 The Honorable Mayor De Angelis Re: Murn et a1 .-v. Muskego Dam August 22, 1994 Page 2 With regard to 7 I. 5., the Stipulation should note that the lawsuit against the City will be dismissed with prejudice. Further, a recent delay in the effective date of the release. Since the City is amendment to this paragraph proposed by the Plaintiffs would involve a must be effective immediately. accepting liability upon the execution of the Stipulation, the release With regard to 1 111. I., as you and I have discussed, if the City accepts the proposed agreement, there may be substantial costs to be borne by the City in the future if the DNR orders modification of the spillway. The potential risk could involve millions of dollars If be included indicatino the DNR's approval that all future the City is willing to accept this risk, at a minimum, language should modifications will affect only the spillway and not the height of the Dam or earthen berm. The signzture line should include all Plaintiffs. With your permlsslgn, we will advise Attorneys Murn and Wickland of these addltloEal concerns and provide tnem with a draft of the proposed amendrnenLs and easemenr documents. Please call as soon as possible to discuss the foregoing. Very truly yours, 0 .'. ' ARENZ, MOLTER, MACY & RIFFLE, S C. H Stanley Riffle HSR/ j b cc Jean Marenda, City Clerk bcc: Atty. Don Molter -SEA, WIBCOWSIN~ 53186 PROME Im.: (414) 797-9907 PAX NO.: (414) 797-8020 TOTAL NUMBER OF PAGES INCLUDING COVER SHEET: 11 REI MESSAGE : SENT BY: cdd HARD COPY TO FOLLOW: YES- No C.+**t*****C+****CtZ~*.*t~~**.**Z~.******.**************+********* FAX COVER NOTICE OF COliFIDENTIALITP the personal and confidential use8 of the designated recipients The information in thirr faceimile message ie intended only for Mlped above. Thie message may be an attorney+Aient communication, messape iB not the intended recipient or (UI agent responsible for and as such is privileged and confidential. If the reader of this delivering it to the intended recipient? you are hereby notified that you have received this docluPsnt in error, and that any review, pou have received this cmication in error, pleaee notify urn distribution or copying of thie meeeage is strictly prohibited. If immediately by telephone. Thank you. 1 'd BODE, SCHROEDER, CARROLL 8c MURN, S,C, w800 Swenson Drive, Suite 150 Waukeaha. WI 59186 0 John Theilu Bode Brian C. Carmll Michelle E. Marfin Donald J. Mum John H. Shore Snun R Schroeder Robat W. Snydcr BliM€RUMlIlg Michael J. Gmu 1952-1991 Phone:(4l4) 797-9907 Fax:(414) 797-BopO Auguet le, 1994 VIA PAcsIMxxa Mr. Steven E. Wickland Wisconsin Department of Justice Pant Office Box 7857 Madison, WI 53707-7857 Kr. W. Stanley Riffle hens, Molter, Macy h Riffle, S.C. Post Office Box 1348 Waukesha, Wisconsin 53187 0 RE: Hurn, et al. VE. City of Muskego, et al. Case No. 92-CV-578 Gentlemen: I am in receipt of Stan's letter dated August 17, 1994. Both Don and I have reviewed it, and the changes to both the Stipulation and the Easement meet with our approval. I spoke with Steve today, and his only change was to replace "within a reaeonable time" in Paragraph 1.1. to "by January 3, 1997" to conform with the DNR'fi order dated January 3, 1992. Therefore, enclosed herewith is a copy of the updated Stipulation and Order, together with B copy of the updated Easement. Please review the sm@ and get back to me or Don with your cments. I la" cdd Enclosures cc: Attorney Michael J. Knoeller, with enclosures 0 2 'd BODE, SCHROEDES CARROLL 8: 0 Swenson Drive, swu 150 Wmksha, W 53186 (41 tl 7974907 Fu: (414) 797-80?0 E 'd STATB OP UIGCONSII CIRCUIT COURT WAUKESIIA COUNTY BRANCH 4 VICTOR I[uRN, JOANNX MURN, RONALD HAHw)ND', 6(18AN#E EIAMXOND, THOXU BROMLEY, TERRI J. XURRAY, RONALD LOEBEL, JANICE MEBEL, GREG KBCHA, LAURA EXCZiA, WIUW BCHNEIDER, LOIS SCHNEIDER, HAROLD BWANTO, JBW TRENDEL, LAWRENCE WIEBNER, and MARIA WIESNER, Plaintiffs, V. Case No. 92-CY-578 DEPARTMENT OF NATURAL REBOURCES STATE OF WISCONSIN/CITY OF NEW BERLIN and ON!!l OR HORE JOAN DOE DEVELOPERS, Case Code 30405 Defendants, and CITY OF MJBXEGO, Defendants and Third-party Plaintiffs, V. NATIONAL UNION FIRE INSWIUUJCE COMPANY, a foreign corporation, Third-party Defendant. STIPULATION AllD ORDER The partiea to this action, by their respective counsel, HEREBY STIPULATE that: I. The Little Mutuskeqo Lake Dam. 1. The City of Muekego (City) will retrofit the entire earthen dam porf5m of the Little Muekego Lake Dam in accordance with plans and specificat BODE, SCHROEDER, CARROLL 8: Ruekert P Mielke, Inc., profeeeional engineers, after review and approval by the Wiacomin Department of Natural Reeourcee (DNR). This work shall be completed by Januaqy 3, 1997. 2. The City accepts all statutory and common law liability .for spillway and dam maintenance a6 well as general liability €or any damage8 occasioned for negligence,l,&\ associated with dam reconstruction and maintenance, end the City wfll hold harmless and indemnify the plaintiff herein from any future liability for injury occasioned by such negligence, including breaches of the dam, except for damages due to the act6 of the plaintiffs as property owners, and their agents and aeeigns, 3. The plaintiffs herein will dedicate a moot permanent maintenance eaeement attached hereto as Exhibit A, along the entire earthen portion of the dam and the City muld be provided reasonable access over and across such lands to maintain the earthen dam, pursuant to enid Easement. This dedication shall be in lieu of condemnation, as the plaintiffs hereby waive and stipulate to a dismiasal of all claims arising from condemnation in the present action in accordance with the provisions of Paragraph 5, below. - 4. The plaintiffs, their 6~ccessors and assigns, are guaranteed the right to utiliae the entire easement exclusively, subject only to the City’s easement rights and 2 CARROLL & with the exception tha t structure6 01 tree 7, which may affect the function of the dam a6 eet forth in h Exhibit A. 5. The City will be dimiseddd' from this action end ave will be executed. The City, pursuant to the diemimeal and the release, will be releaeed of any and all liability for damagee to the plaintiffs relating to any claime which have been made or could have been made in thie action and regarding any issues pertaining in any way to the Dam. - 1 11. The DeDartment of ?lam Rssourcss. 1. The DUR, a defendant herein, ehall have all claims brought against it by the plaintiffs dismissed, inchdin-? amended complaint. 2. This stipulation satisfies the requirements of hu Sec. 31.14, Wis. Btats, Pursuant to Sec. 31.21(1), Wis. Btats., restrictions are placed on transfer of permite, and that section places obligations upon property Ownera. Within a reasonable time follwing receipt from any party herein of a complete application, but not to exceed forty- five (45) days from said receipt, the DNR, so long as this Stipulation remains in place, will approve such ttannfer or aseignment in writing, and note therein that the traneferee or assignee has complied with See. 31.14, Wis. State. The entirety of the Stipulation shall be filed with the /" Register of Deeds to set forth the terne of the Stipulation 3 herein and ammure tranafera will be made in a reasonable and expeditious manner. 111. procedure for additional dam capacitv. 1. If additional capacity at the dam is determined by th e DNR to be needed, the City shall only accomplish thim by a DNR proposal or order to provide the additional/& capacity by enlarging the dam apillway, and not by raising (,& the earthen erabanhent. \Gw,@ 2. Should DNR by order require the City to enlarge or otherwise modify the spillway to provide additiona 0 capacity, the City can aeek a Ch. 227, Wis. Stata., judicial review of such order. 3. The DNR can a160 seek to lower the level of ths lake, and nothing herein prevents the DNR from conaidering and implementing such action. 4, The plaintiffs agree that access to the earthen portion of the dm, including the berm, will be available to the DNR for inspection, and routine upkeep and maintenance, including erosion prevention, pursuant to the Easement. 4 / /' / / Dated: JAM38 E. DOYLE Attorney General w Steven B. Wickland Asst. Attorney General Attorneys €or Defendant Department of Natural Reeourcea Dated: ARENZ, MOLTER, HACY & RIFFLE, S.C. By : Stanley Riffle Attorney for City of /5kego Dated: BODE, GCHROEDER, CARROU & I6LTRN. 6.C. Donald J. Uurn Attorney at Law Attorneys for Plaintiffs Victor Wn, Joanne Hurn, Terri J. Hurray, n/k/a Terry J. Crangle, Ronald Hammond, Suzanne Hanrmond, Ronald Loebel, Janice Loebel, Greg Mecha, Laura Mecha, William Bchneider, and schneider Lois BY ' Dated: MICIiAEL J. KNOELLER LAW OFFICE By: Attorney forLawrenceWiesner Michael J. Knoeller and Maria Wiesner ORDER Based on the foregoing Stipulation, and based on all of the files, records and proceedings herein; IT IS HEREBY ORDERED that the foregoing Btipulation be made an Order of the Court. Dated thio - day of , 1994. BY THE COURT: Honorable Patrick L. Snyder Circuit Court Judge 6 EASKlmm The undersigned, Victor Wurn, Joanne mn, Terri J. Murray, n/k/a Terry J. Crangle, Ronald Bammond, Euranne Rammond, Ronald Loebel, Janice Loebel, Gre Xecha, Laura and Lois Sehneid@efter following eaeement on the lands described on the attached Exhibit A, with all privilege8 and appurtenances thereto, as described herein to the City of Muskego (hereinafter GRAarEE) for the sum of One Dollar ($1.00) and other valuable consideration. The exclueivity of this kaesmsnt shall only be disturbed by the Grantee for the purpoee of effectuating'repairs necessitated by either an emergency or an Order of the State of Wisconein - Department of Natural Resources purauant to a certain Stipulation dated , Waukerha County Circuit Court Case No. 92- CV-578. Said Order ahall be in writing and shall state, with specificity, the basis for the repair or necessity of any entry onto said eamexnent and all supporting engineering data ahall be attached thereto. In the event the engineering data does not support the change(s) set forth in th8 Order, the Grantore retain the right to object to any alteration of said lands. The Grantee specifically agrees that following any repaire to the area, it ehall return and restore the properties to their condition prior to effectuating any repairs of the Dam. The Grantors further retain as part of the granting of the Easement, all of the following uses and rights: - All exclusive use and rights of ingress and egress, over the described parcel, including the right to 5'd ' .- fence and deny access thereto, except as hereafter and heretofore stated. - All riparian right6 associated with the parcel, including and up to the ordinary highwater mark of the parcel. Said right6 include the right to etore boat lifte, boating equipment and all other item of personalty related to said riparian ume, as long a6 said use does not interfere with the integrity of the dam nor any structures thereon which are appurtenant to said structure8 and are otherwise lawfully placed. - All rights to extend electrical service and or water lines up to the ordinary highwater mark. The rights granted herein are exclu6ive and are only modified 0 as hereafter set forth. It le the specific intent of the Grantors to retain all rights of use, with regard to the property upon which the Easement of record is secured. This EaserPent shall run with the land. All right6 retained hereunder shall inure to the benefit of all heirs, executor@, assigns and transferees of the servient lande over which this Easament is granted. The rights retained by the Grantor5 shall be illustrative and not act ae a limitation. Furthennore, the Grantee shall return any of the land that is the subject of this Easement, which is disturbed due to a necessary repair, to a conditfon which is in conformity with it6 condition prior to said repair. Purthor, the Grantee shall give Grantors, or their ~uccessors and/or asaigns, seventy-two (72) hours notice, in e writing, postaqe pre-paid via certified mail, before entering onto 01 'd any of the property of the Crantorr, or their Euccemorm and/or e aseigne, for repairs or impeation for other than nun-emergency sltuatione. Thie Eaeement ie granted for the benefit of the property described on Schedule A, attached hereto. VICTOR MURN RONALD WOND RONALD LOBBEL e GRBG kW3IA WILLIAM BCHNEIDER TERRI J. EdITRRAY, TERRI CRANGLE, f/k/a GRANTEE: City of Huskego Tit le : By : JaAFNE MURN SUZANNE HAMMOND JANICE LOEBEJI LAURA mcHA LOIS SCHNEIDER 11 'd AUTHENTICATION signature6 of authenticated this - day of 1994. Name : Title: Member State Bar of Wisconsin ACKNOWLEDGEMENT STATE QF WISCONGIN) WAUIIESHA COUNTY ) 1 86 Personally came before me this day of 1994, the above-named I to me know to be the petson(s) who executed the foregoing instrument and acknowledged the same. Name : Notary Public, State of Wisconsin My Cormnission: This instrument was drafted by: Donald J. Murn Return original tot Bode, Schroeder, Carroll & mn, 9.12. 20800 Swenson Drive, Suite 150 Waukseha, WI 53186 (414) 797-9907 21 'd