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CCR2002186COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #186-2002 RESOLUTION AUTHORIZING FILING, SERVING AND TAKING ALL NECESSARY ACTIONS TO FILE A NOTICE OF CIRCUMSTANCES OF CLAIM AND CLAIM BY THE CITY OF MUSKEG0 AGAINST THE VILLAGE OF BIG BEND BE IT RESOLVED That the Common Council of the City of Muskego does hereby authorize the City Attorney, in consultation with the Mayor, to proceed, if they deem necessary, to file the attached Notice of Circumstances of Claim and Claim, and if necessary, to take legal action against the Village of Big Bend for the purposes stated in the attached Notice. BE IT FURTHER RESOLVED That the Mayor, City Attorneys, and all other City officials are authorized to execute any necessary documentation in this regard. DATED THIS 24th DAY OF September ,2002. SPONSORED BY: Mark A. Slocomb, Mayor This is to certify that this is a true and accurate copy of Resolution #186-2002 which was adopted by the Common Council of the City of Muskego. DALE W ARENL DONALD 5. MOLTER. JR dOHN P. MAGI. TELEPHONE 548-1340 FACSIMILE 548.9281 AREA CODE 262 September 11, 2002 Ms. Jean Marenda City Clerk CITY OF MUSKEG0 P.O. Box 749 Muskego, WI 531 50-0749 Re: Notice of Injury and Notice of Claim Donald & Judith Roach Villaae of Bia Bend Dear Jean: Per my recent conference with the Mayor, please put the enclosed Notice of Circumstances of Claim and Claim on the next Council agenda in the above-mentioned matter. Once it has been properly dated and executed, please return the original document to my office so that I may see that it is personally served upon the Clerk for the Village of Big Bend. Thank you. Sincerely, Donald S. Molter, Jr DSMlpw Enclosure cc: Mayor Mal rk A. Slocomb e TO: Ms. Barbara Woppert Big Bend Village Clerk Village of Big Bend P.O. Box 130 Big Bend, WI 53103 NOTICE OF CIRCUMSTANCES OF CLAIM & CLAIM PLEASE TAKE NOTICE that pursuant to Wisconsin Statute §893.80, the City of Muskego hereby submits to you this Notice of Circumstances of Claim and Claim as to a Notice of Injury and Notice of Claim which was made upon the City of Muskego and its Inspection Department. The City of Muskego, on or about September 3, 2002, received the document attached hereto, made a part hereof and marked Exhibit "1" entitled, "Notice of Injury and Notice of Claim." This Notice of Injury and Notice of Claim was filed on behalf of Donald and Judith Roach and, in part, sets forth a Notice of Injury and Notice of Claim against the City of Muskego and its Inspection Department and itemizes damages. Notice is hereby given to the Village of Big Bend that the City of Muskego entered into a contract dated June 26, 1991, a copy of which is attached hereto, made a part hereof and marked Exhibit "2"." This contract provides, in part, that the Village of Big Bend will hold harmless, indemnify and defend the City of Muskego and its employees, officers or agents for any claim brought against them for performing a function pursuant to the contract. All the functions referenced in Exhibit "1 " are functions growing out of the contract which is attached hereto, made a part hereof and marked Exhibit "2." Notice of Claim and Claim is hereby made against the Village of Big Bend for any and all damages claimed and itemized in Exhibit "1 " attached to this Notice, and in addition thereto, for any and all damages and expenses incurred by the City of Muskego and/or its employees, officers or agents growing out of this claim including, but not limited to, actual attorney fees, costs and disbursements. Dated this day of , 2002. CITY OF MUSKEG0 By: Mark A. Slocomb, Mayor ATTEST, Jean K. Marenda, Clerk TO: City of Muskego ATTN: Jean Maren&, City Clerk W182 S8200 Racine Ave. . Muskego, WI 53150-0749 NOTICE OF INJURY AND NOTICE OF CLAM PLEASE TAKE NOTICE, that pursuant to Wis. Stats. 5 893.80 Donald and Judith Roach who reside at W228 S8815 Cherry Street, Big Bend, Wisconsin 53103, hereby submit a Notice of Injury and Notice of Claim upon the City of Muskego. Donald and Judith Roach purchased in April. 1995 their residence located at W228 S8815 Cherry Street, Big Bend, Wisconsin 53103 which was built by Keith Stuessi. Mr. Stuessi built the home from 1991- 1993 and resided therein. Keith Smessi. while constructing the home had the same home inspected by the Village of Big Bend, which at said time had contncted with the City of ”. c Muskego for municipal building itspection setvices with respect to said home. Mr. Stuessi apparently received occupancy permits from the Village of Big Bend for the home at W228 S8815 Cherry Street, Big Bend, Wisconsin 53103 before selling the same to Donald and Judith Roach. Donald and Judith Roach purchased property in northern Wisconsin and proceeded to i retain Bill Craig Realty to sell their property at W228 S8815 Cherry Street, Big Bend, I Wisconsin 53103. A contract for the sale of the Roach home on Ckry Street was entered into and during an inspection of the home it was discovered that the roof of the home was sagging. Further inspection of the roof sag showed that imprower construction was used, namely the wrong sue “rafters” acolally joists) were used to span the roof structure of the home which neither meet code today not ever met code requirements for the Sate of Wisconsin. Further. ” ” e no vapor retarder of any kind was uSed for the cathedral ceiling portion of thc property and improper insulation for the home was used in the roof system. The current building inspector for the Village of Big Bend has inspected the home and advised Donald and Judith Roach that I the wrong size roof "rafters" were used and that the home was improperly insulated in the roof. Donald and Judirh Roach also had an engineer inspect the properry and confirmed that improper roof rafters were used for the construction of the roof for both the home and bth garages, no vapor retarder system was installed as would be a common construction practice for a carhedral ceiling in a home. and further, improper insulation was used in the roof system of the home. Notice is hereby giyennhf& ofN.skeEo and its Inspection Department that it negligently performed its obligations contracted to be performed with the Village of Big Bend wih respect to inspecting the property located a1 W228 S8815 Cheny Street, Big Bend. Wisconsin 53103 during rhe time of irs construction. The negligent inspection caused damage and has cauwd damage to Donald and Judith Roach. The problems with the home were not open and obvious to Donald and Judith Roach and required inspection by a building inspector c \ e . -~ - remained by the purchaser. This inspection did not take Attached hereto is an itemized statement of are not willing to submit bids for this job due to its matters. Also attached is a real estate appraiser's opinion on the - property after repair. The damages are incorporated herein by reference and constitute Donald and Judith Roach's itemized statement of relief sought from the Cicy of Muskego due to the building inspection department's failure to prooperly inspect the construction of this home to iFsure proper statutory construction. (262) 662-3732 January 7,2002 Attorney Tim Andringa 1601 E. Racine Ave. Waukesha. WI 53186 (By Facsimile) Re: Don 8 Judy Roach W228 sB815 Cherry Street BQ Bend, WI 53103 Dear Tun: AS you know. I am familiar with the property the Roaches gwn at the abclve address. As you are ako aware. they had a cash Buyer who has most likely been lost due to discovery of the defective roof on the house. and. as takr discowred. a defective mf on the outbuilding as wel1. From an appraisal standpoint. th6 is class&!& as km35cml obsolescence. +here is a 'cost lo atre' or to mect the problem. but. in addition. tiwe is a marketing problem (psycholcgical) for the future. The roof mrredon would be disdosed to a Mure Buyer wt~o will more than likely assume that there are crther problem which have not been discmered. In fad. the present Buyer k now quedionhg that very thing. e Although it is very difficult to measure the future loss m marlceting potentkl. as an appraiser I would estimate a value loss of 10-15% of property value as a result of these problems. In other words. the sale price. namely the accepted Mer of $178.500. could safely be considered fair market value since this was a cash Buyer with no contingencies other than e home inspection. The resulting bss in future marketing value would be approximately S 22.006. This would be in additbn to the %est to cure' F L Hopefuliy this m'll answer your questions concemlng your letter of December 27. Please don't hesitate to call me with any additional qwstions William J. Craig WJC:ser / TOTRL P.B7 I INSPECTION AND- ="ED SERVICES Date of Contract: June 26, 1991 1. PARTIES A. City of Muskego Wl82 S8200 Racine Avenue Huskego, WI 53130 8. Vlllage of Big send W230 S9175 Nevins Street Elg Bend, WI 53103 2. PREAYBLE A. State Statute subchapter I, 11, and I11 of Chagter 101 authorized the Department of Industry, Labor and Human Relations to promulgate standards for the construction of one- and two-family dwellings, including manufactured dwellizgs, and tc insure conformance to such standards by the adoptlon of inspection proceduras. Such regulations were published in the Hisconsfn Regist= (December 1979) with an effective date of June 1, 1980. 0 9. Pursuant to the provisions of 101.65 and 101.76, municipalities may exercise jurisdictLon over the construction and inspectLon Qf new dwelllnp by passage of ordinances meeting the requirements of the one- and two-family dwelling code. That the village of Big Bend has passed an ordinance cpproved by the Wisconsin Department of Induszry, Lao: ar.d F!!urna?. RelztiOnS allowing the Village of Big Bend to contract with the City of Muskego for the servfces set forth in this Agreement. 1 3. STATEMENT OF WORX In furtherance of the above intentions and fntending to be mutually bound, the parties hereto agree as follows: The Village of Big 6end shall car-y out the administration and enforcement of both the Uniform Gwellfnq Code and the WLsconsin Uniform Building Code and assisting the Clty of Muskego ln any legal aspects cf enforcement, such as hiring expert witnesses. etc. TO perfom its obligations under this cmtract, the City of Xuskego agrees tc ccndxcz such plan examinations and inspsctfons using the services of inspectors csrtlfied in the disciplines for whlch such inspections are conducted. The City of Huskego further agrees that such certified psrsonnal wfll conduct all necessa?[ and requlred inspections on one- and t-40-family dwellings constructsd in the Village o€ Big Bend located in Waukesha Ccunty. It 14 further agreed that, upcn request by the Villaqe of 2ig aend, the City of Muske50 wiL1 maXz Lnsgection re7orts available on all inspections conducted. Clty of Muskego shall provide additional infonatlon a9 may reascnably be rsciui;p_C by Big Bend. such infamation may Include, but is not limited to, cerrification, representatfons, statements and financial and technical reports and data. 4. SCO?E OF WOK< TO perform its obligations under this concracf, the City Of Muskego agrees to perform the following job functions in a manner consistent with the prov~slons of Chapter Ind. 20 through 25 of the Unfform Welling Code. Dwelling Code. (1) Chapter Ind. (2) Chapter Ind. (3) Chapter Ind. Conditioning (4) Chapter Ind. (5) Chapter Ind. pdminlstrative procedures described in Ind. 20.10 Of the Unlf ". 21 (Construction) 22 ( Energy) 23 (Heating, Ventilating and Air '1 24 (Electrical) 25 (Plumbing 5. OFFICE PROCEDURES OF THE CITY OF MUSKEGO A. Maintenance of records, lncludlng inspection and financial records related to building permits. a. Tke City of Huskajo shzll establish and maintain adequate records of all expenditures incurred under t contract. All records must be kept in accordance with generally accepted accounting procedures. All procedures must be in accordance with federal, state, and local ordinances. 6. ASSISTING THE VILLAGE OF BIG BEND IN INSURING COMPLIANCE The City of Muskego shall: A. Issue noncompliance orders. 8. Make recommendation on appeals. C. Appear as witnesses during legal proceedings. 7. PERMIT FEES The Village of Big Bend has established permit fees by ordinance. =HIBIT 'X " :! i , \ B - COMPENSATION OF THE CITY OF MIJSKEGO The City of Muskego agrees to perform the services described above as follows: APPROXIMATE INSPECTION TIME REQUIRED Residential Commercial Sol1 Erosion 1/2 hr. Footings 1/2 hr. Foundation 1/2 hz. l/2 hr. Rough Carpentry 1/2 hr. 112 hr. Basement Floor 1/2 hr. 1/2 hr. 1/4 hr. Insulation 1/4 hr. 1/4 hr. Rough Electric 1/4 hr. Temporary Service 1/2 hr. 1/2 hr. 1/4 hz. 1/2 hr. New Service Change Service 1/4 hr. 112 hr. Final Electric 1/2 hr. 1/2 hr. 1/2 hr. 1/2 hr. Out3 Lde Sever Inside Swer 1/2 hr. l/2 hr. 1/4 k. 1/2 hr. Rough Plumbing l/2 hr. 1/2 hr. Final Plumbing 1/2 hr. 1/2 hr. Decks Zoning 112 hr. 112 hr. POOL Inspect./Inc. Elec. 15 minute travel time will be added to above figures. If numerous inspections perconed at one time, only one tzip charge will be billed. 1/4 hr. l/2 kr. "_ -" All times will be added together including trfp time and rounded up to the next 1/2 hr. then Example: 112 hr. inspection, 1/J hr. trip time = 314 hr 1 ht. will be billad. 1/4 hr. inspection, 114 hr. trip the = 112 hr. 112 hr. will be billed. These thes are approximate. special circumstances may arise ar.d edditlonal time may be billed beyond these figure9 when All tlrnes include filllng out reports and reasonable phone time necessary. related to inspection actfvities. Administrative and clerical time for Big Bend reporcs, Plan Commission or Board of Appeals research will be billed. . I., Board of Appeals and Plan Commission meetings, as well as any .required appearances as a uftness for legal proceedings, billed 3 haurs minimum with any time over 3 hours bflled in 1 hour Increments. All time to be billed at a rate of $35/per hour. 9. PERIOD OF PERFORMANCE The initial term oE this contract shall be twelve months from the effective date. 10. TERMIXATION OF CONTRACT Elther party may terminate thls contract at will upon thirty (30) days prior wzittan notice to the other party. 11. LIABILITY Tkt i: is hereby agreed tkat the Vill25s CP ElJ Bend Will hold hamles3 and/or indemnify the City of Muskego and/or any employees, officers, or agents of the CLty of Huskago and 0 pr-vide defense for any claim brought against the City of Muskego and/or against any ernoloyee, officsr, or agent of the City of Muskego who is perfarxing a function pxsuant to this Agrement. EXHIBIT h