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CCR2007222. 8 . COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #222-2007 APPROVAL OF STIPULATION AND ORDER FOR DISMISSAL (Veolia ES Emerald Park Landfill, LLC vs. City of Muskego) WHEREAS, The attached Stipulation and Order for Dismissal has been reviewed by the Finance Committee and has been recommended for approval. NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the Stipulation and Order for Dismissal, which resolves the litigation between Veolia ES Emerald Park Landfill, LLC vs. the City of Muskego. BE IT FURTHER RESOLVED That City Attorney H. Stanley Riffle is authorized to sign the Stipulation and Order on behalf of the City. DATED THIS 11TH DAY OF DECEMBER ,2007. SPONSORED BY: FINANCE COMMITTEE Ald. Bob Melcher Ald. Neil Borgman Ald. Keith Werner This is to certify that this is a true and accurate copy of Resolution #222-2007 which was adopted by the Common Council of the City of Muskego. 11/07jmb _.c.. ""..~",.. @@[F)W . . CIRCUIT COI~J.ftr\.:f CIÇl.~W~~~gHA COUNTY Ci'/IL Oh ,~,~Ort 01 DEC I 9 AM 9: 56 Veolia ES Emerald Park Landfill, LLC, Plaintiff, STATE OF WISCONSIN Defendant. FILED Case No. 06 CV 2811 IN CIRCUIT COURT DEC 2 0 2007 v. City of Muskego, WAUKESHA CO. WI CIVIL DIVISION STIPULATION AND ORDER FOR DISMISSAL ON TERMS WHEREAS, plaintiff, Veolia ES Emerald Park Landfill, LLC, by and through its legal counsel, Reinhart Boerner Van Deuren, S.c., by Attorney Jeffrey P. Clark, and defendant, City of Muskego, by and through its legal counsel, Arenz, Molter, Macy & . Riffle, S.c., by Attorney H. Stanley Riffle, desire to resolve, through this Stipulation, all claims and causes of action asserted by plaintiff in the pleadings in this action; and WHEREAS, in the interest of resolving this dispute and litigation, defendant has agreed to accept from plaintiff, as and for settlement of all issues and claims related to the Special Assessment levied pursuant to defendant's Resolution #102-2002, the total sum of $200,000.00; and WHEREAS, in the interest of resolving this dispute and litigation, plaintiff has agreed to pay to defendant, as and for settlement of all issues and claims related to the Special Assessment levied pursuant to defendant's Resolution #102-2002, the total sum of $200,000.00; IT IS HEREBY STIPULATED, by and between plaintiff and defendant, as follows: 1. Plaintiff shall pay' to defendant, as and for settlement of all issues and claims related to the Special Assessment levied pursuant to defendant's Resolution #102- 2002, the sum of $200,000.00, as follows: . . . . .' ~\ .. ill , , A. An initial partial payment in the amount of$100,000.00 shaII be paid no later than the close of defendant's business on December 31,2007; and B. The unpaid balance of the original settlement amount shaII Incur interest at the annual rate of 8.0% commencing on January 1, 2008, until paid in fuII, with said interest computed to the date of payment; and C. The unpaid balance of the original settlement amount, together with all accrued interest thereon, shaII be paid no later than the close of defendant's business on December 31, 2008. There shall be no interest due in the event plaintiff the entire balance December 31, 2007. pnor to pays 2. In the event plaintiff fails to timely remit either payment required above, defendant shall assess against plaintiff's subject real property, as a Special Charge, the total amount remaining unpaid, including all accrued interest thereon. 3. So long as Veolia operates within the current capacity restrictions (which is currently 17,650 gallons per day of sewer capacity and represents 97.13 residential equivalency connections (REC's)), Ve<?lia shall not be obligated to purchase additional capacity, unless the Department of Natural Resources ("DNR") requires V eolia to acquire additional reserve capacity in excess of the current reserve capacity. In the event the DNR requires Veolia to acquire additional reserve capacity in excess of the current reserve capacity, Veolia shall be assessed at the future user rate for each REC in excess of the current reserve. In the event Veolia does not request additional reserve capacity or the DNR does not require additional reserve capacity in excess of the current reserve, there shall be no further charges for reserve capacity due from Veolia. 4. AII plaintiffs claims and causes of action asserted against defendant in this action shall be dismissed with prejudice, without costs to any party as against the other, and without further notice to the parties. - 2 - . . . . . . /s.Aday of December 2007. Dated at Milwaukee, Wisconsin, this Reinhart Boerner Van Deuren, S.C. Attorneys for Plaintiff Dated at Waukesha, Wisconsin, this BY:~~ A orney Jeffrey P. Clark State Bar No.1 009316 / 7~ day of December 2007. Arenz, Molter, Macy & Riffle, S.C. Attorneys for Defendant By: H. e lffle State BarNo. 1012704 ORDER Based on the foregoing Stipulation of plaintiff and defendant, by and between their respective legal counsel: IT IS HEREBY ORDERED, 1. Plaintiff shall pay to defendant, as and for settlement of all issues and claims related to the Special Assessment levied pursuant to defendant's Resolution #102- .2002, the sum of $200,000.00, as follows: D. An initial partial payment in the amount of$100,000.00 shall be paid no later than the close of defendant's business on December 31, 2007; and E. The unpaid balance of the original settlement amount shall incur interest at the annual rate of 8.0% commencing on January 1, 2008, until paid in full, with said interest computed to the date of payment; and - 3 - , F. The unpaid balance of the original settlement amount, together with all accrued interest thereon, shall be paid no later than the close of defendant's business on December 31, 2008. There shall be no interest due in the event plaintiff pays the entire balance prior to December 31, 2007. . 2. In the event plaintiff fails to timely remit ~ither payment required above, defendant shall assess against plaintiff's subject real property, as a Special Charge, the total amount remaining unpaid, including all accrued interest thereon. 3. So long as Veolia operates within the current capacity restrictions (which is currently 17,650 gallons per day of sewer capacity and represents 97.13 residential equivalency connections (REC's)), Veolia shall not be obligated to purchase additional capacity, unless the Department of Natural Resources ("DNR") requires Veolia to acquire additional reserve capacity in excess of the current reserve capacity. In the event the DNR requires Veolia to acquire additional reserve capacity in excess of the current reserve capacity, Veolia shall be assessed at the future user rate for each REC in excess of the current reserve. In the event Veolia does not . request additional reserve capacity or the DNR does not require additional reserve capacity in excess of the current reserve, there shall be no further charges for reserve capacity due from Veolia. 4. All plaintiff's claims and causes of action asserted against defendant in this action shall be and hereby are dismissed with prejudice, without costs to any party as against the other. Dated at Waukesha, Wisconsin, tills ~ day Of~~O7. BY THE COURT: /s/ Paul F. Reilly PaulF. Reilly, Circuit Court Judge . - 4 -