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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. 2 th 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 3