HomeMy WebLinkAboutSettlement Agreement 11-x'
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SETTLEMENT AGREEMENT
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This Settlement Agreement is executed as of the G A o
, 2001, by and between the following: yo 10,...
(a) . Heartland Coalition Incorporated; Evan Goodm�I, tL nda CS
Goodman; Pamela Lambert; Robert M. Book; Sydney - ■ °i-
Book; Charles N. Howard; Karen J. Kennedy; Leroy K. New; Karen
R. Risk; Dale Scannell; Marilyn M. Scannell; Arthur R. Van Allen;
Mary L. Van Allen; and Trudie H. Wanchow, the Plaintiffs in a
Complaint for Declaratory Judgment filed in the Hamilton Superior
Court as Cause No. 29D02-0103-CP-0146 (hereinafter referred to
collectively as "Zoning Plaintiffs"); and
(b) Gerald L. Wagner and Patricia Wagner, the Plaintiffs in a Complaint
filed in the Hamilton Superior Court as Cause No. 29D02-0102-CP-
0070 (hereinafter referred to collectively as "Open Door Plaintiffs");
and
(c) Pamela Lambert, Katharine N. Dickson, James E. Schram, Susan
A. Schram, Rose A. Schnell, Caroline B. Valentine, Steven Bradley,
and the Heartland Coalition, Incorporated, the Plaintiffs in a
Complaint filed in the Hamilton Superior Court as Cause No.
29D02-0103-CP-186, which was transferred to Hamilton Superior
Court No. 3 as Cause No. 29D03-0104-CP-000280 (hereinafter
. referred to collectively as "Redevelopment Plaintiffs"); (collectively,
the Open Door Plaintiffs, Zoning Plaintiffs and Redevelopment
Plaintiffs shall be referred to as the "Plaintiffs"); and
(d) the Common Council for the City of Carmel ("City Council"), the City
of Carmel, Indiana ("City"), the Carmel Clay Plan Commission
("Plan Commission"), the Carmel Redevelopment Commission
("CRC"); and
(e) Duke-Weeks Realty Limited Partnership -("Duke-Weeks"), NRC
Corp. ("NRC"); and
(f) Belle Meade Civic Association ("Belle Meade").
RECITALS
A. On or about the 18th day of August, 2000, Duke-Weeks filed a
petition with the Plan Commission requesting a rezoning of approximately
36.4 acres owned by NRC located at the northwest corner of 96t Street and
Meridian Street in Carmel, Indiana (the "Property") to a planned unit development
zoning classification ("PUD Ordinance") to provide for the development of the '
Property as an office park.
B. The Plan Commission held a number of public hearings and
meetings relating to the proposed PUD Ordinance, and on the 19th day of
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December, 2000, voted to send the PUD Ordinance to the City Council with a
recommendation that the City Council adopt the PUD Ordinance.
C. On the 5th day of February, 2001, after hearings before the City
Council and committees of the City Council, the City Council voted by a vote of 5-
0 to adopt the PUD Ordinance.
D. On or about January 10, 2001, the CRC adopted a Declaratory
Resolution which resolved to approve the Parkwood Economic Development
Plan ("EDP"), establish the Parkwood Economic Development Area ("EDA") and
an allocation area. After adoption of the Declaratory Resolution, the CRC
submitted the Declaratory Resolution and supporting data to the Plan
Commission, which issued a written order approving the Declaratory Resolution
and the EDP on January 16, 2001. After adoption of the Declaratory Resolution
and receipt of the written order of approval from the Plan Commission, the CRC
submitted the Resolution and supporting data to the City Council, which issued a
written order adopting the Declaratory Resolution on February 5, 2001. On
March 14, 2001, the CRC held a public hearing for the EDA, during which
Redevelopment Plaintiffs appeared by counsel and presented a written
remonstrance and oral presentation of their objections to the Commission's
actions. At the conclusion of the hearing, the CRC adopted a Confirmatory
Resolution approving the EDP, establishing the EDA and establishing an
allocation area ("TIF Approval"). These actions were taken in conformity with
IC §36-7-14 et. seq.
E. Certain matters, disputes and/or controversies have arisen, or may
arise, among the parties to this Agreement and others in connection with (1) the
development of the Property as contemplated by the PUD Ordinance, the EDA
and the EDP; (2) the approval of the PUD Ordinance; (3) the TIF Approval and
the bonds relating thereto; (4) compliance with the Indiana Open Door Law; and
(5) facts related to the matters at issue in items 1 through 4 above (all five
collectively are referred to as the "Disputes"). The following lawsuits have been
filed in connection with the Disputes:
(1) The Redevelopment Plaintiffs appealed the decision of the
CRC described in paragraph D above to the Hamilton County Superior
Court No. 2 under cause number 29D02-0103-CP-186, which cause was
subsequently transferred to Hamilton Superior Court No. 3 under cause
number 29D03-0104-CP-000280 ("Redevelopment Lawsuit").
(2) The Open Door Plaintiffs filed a Complaint in the Hamilton
Superior Court No. 2 under cause number 29D02-0102-CP-0070 alleging
a violation of certain provisions of Indiana's Open Door Law ("Open Door
Lawsuit").
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(3) The Zoning Plaintiffs filed a Complaint in the Hamilton
Superior Court No. 2 under cause number 29D02-0103-CP-146
challenging the validity of the PUD Ordinance ("Zoning Lawsuit").
[hereinafter, the Complaints described in (1), (2) and (3) above shall be
collectively referred to as the "Lawsuits."]
F. Duke-Weeks, NRC and Belle Meade are not parties to any of the
lawsuits that were filed. However, NRC is the owner of the Property, Duke-
Weeks is the proposed purchaser and developer of the Property, and Belle
Meade approved the terms of this Settlement Agreement. Therefore, Duke-
Weeks, NRC and Belle Meade are parties to this Settlement Agreement. In
addition, this Settlement Agreement imposes obligations on Duke-Weeks relating
to development and Belle Meade is the beneficiary of certain of those obligations.
NOW, THEREFORE, for and in consideration of the obligations and the
promises recited below and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties
represent and agree as follows:
1. Condition Precedent. As a condition precedent to the execution of
this Settlement Agreement, and contemporaneously with the
execution of this Settlement Agreement, the parties are executing
an Agreed Judgment in the Zoning Lawsuit in favor of the City
Council and the City, and are executing dismissals with prejudice
with respect to the Open Door Lawsuit and the Redevelopment
Lawsuit. The Agreed Judgment and the dismissals are incorporated
into this Settlement Agreement by reference and as if set forth fully
herein.
2. Agreement of Duke-Weeks. In addition to developing the Property
in accordance with the PUD Ordinance, as such may be amended
or modified by the Commission or the City Council, Duke-Weeks
will provide, in connection with the development of the Property and
in addition to the green area shown along Spring Mill Road on the
conceptual plan included in the PUD Ordinance, an additional
forty (40) feet of green area parallel with Spring Mill Road. This
forty (40) foot area shall serve as a dry retention area and will be
landscaped with trees and flowers outside the retention area and
will provide a park-like setting for the development. To establish
this forty (40) foot area, it will be necessary to move the structures
forty (40) feet east and, when that occurs, the eastern garage may
encroach onto the Outlot Area.
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3. Building Quality. The quality of the buildings on the office portion of
the Property will be, at a minimum, equal to that of Parkwood
Crossing VI.
4. Access Gate. Provided the City of Indianapolis approves, Duke-
Weeks will install, at Duke-Weeks' expense, a gate off of the
96th Street entrance to Kenwood Avenue which, through the use of
cards or some other method can only be accessed by residents of
the Belle Meade subdivision or such other persons as Belle Meade
residents determine. Belle Meade shall be required to do what is
necessary to obtain any approvals required from the City of
Indianapolis. Duke-Weeks shall provide Belle Meade with any
manufacturer's warranty that Duke-Weeks receives. Any
maintenance of the gate, other than that covered by the
manufacturer's warranty, shall be the obligation of Belle Meade.
Construction of the access gate shall occur prior to or
contemporaneously with the commencement of the construction of
any building on the Property.
5. Landscaping. Duke-Weeks will landscape and plant trees along
the west side of the west garage in the development to make the
garage less visible from Spring Mill Road; provided, however, it is
understood that such planting is not contemplated to completely
screen the garage.
6. North Property. Contemporaneously with the execution of this
Settlement Agreement, Duke-Weeks will execute a letter to be
delivered to Heartland Coalition, Incorporated ("Heartland"), Belle
Meade, and the attorneys for the Plaintiffs, Gregory K. Silver and
Jack W. Lawson, indicating that, as of this time, Duke-Weeks has
no interest in the acquisition of the property owned by NRC located
north of and adjacent to 1-465.
7. Dust and Mud. In connection with the construction of the
development, Duke-Weeks will cause the site to be maintained in
such a manner as is required by applicable governmental
regulations to minimize the amount of dust and to minimize the
amount of mud on surrounding streets.
8. Heartland and Belle Meade. Plaintiffs represent and warrant to the
City Council, Duke-Weeks, NRC, the Plan Commission and the
Redevelopment Commission that, at a meeting of Belle Meade and
at a meeting of Heartland, both groups (even though Belle Meade
is not a party to any of the Lawsuits, and Heartland is a party to
only two of the Lawsuits), agreed to the termination of the Lawsuits
based upon this Settlement Agreement.
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9. Conflict. To the extent there is any conflict between the terms
contained in the PUD Ordinance and corresponding Commitments
and the terms of this Settlement Agreement, the terms of this
Settlement Agreement shall govern and be applicable as if part of
the PUD Ordinance or Commitments. Further, the Plan
Commission and City Council agree that any changes to the
development required by this Settlement Agreement do not
necessitate or require any new or additional hearings or changes to
or amendments to the PUD Ordinance.
10. Release by Plaintiffs. The Plaintiffs represent that they have no
claims, rights, demands or causes of action related to the Disputes
against the City Council, the Plan Commission, the Redevelopment
Commission, Duke-Weeks or NRC, other than those being resolved
by this Settlement Agreement.
The Plaintiffs and Belle Meade, for themselves, jointly and
individually, and for their past, current and future members, heirs,
estates, personal representatives, successors, agents, assigns and
for any business or other entity of which any of them is a partner,
member, director, owner, officer, shareholder and/or employee
(collectively, the "Releasing Parties"), hereby release, acquit and
forever discharge the City Council, the Plan Commission, the
Redevelopment Commission, Duke-Weeks and NRC, and any
other affiliated individual, corporation or business or joint venture, to
the same extent as if expressly named herein, as well as their
respective former, present and future agents, representatives,
predecessors, successors, assigns, contractors, subsidiaries,
parents, affiliates, partners, directors, officers, shareholders,
employees and attorneys (collectively, "Released Parties"), from
any claims, causes of action, suits, debts, losses, expenses
(including, but not limited to, reasonable attorneys', consultants'
and experts' fees), liabilities, penalties, costs, damages (including,,
without limitation, all incidental and consequential damages),
injuries and demands of every kind and nature whatsoever related
to the Disputes ("Claims") which the Releasing Parties now have or
may hereafter have, whether known or unknown, or contingent or
liquidated from the beginning of time to the date of this Settlement
Agreement.
The Releasing Parties and the Released Parties expressly intend
that this agreement establish a final determination that: (i) no
violation of the Indiana Open Door Law occurred with respect to the
City Council's and the Plan Commission's actions related to the
PUD Ordinance and/or the Property; (ii) the PUD Ordinance is a
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lawfully and validly enacted ordinance, and all appropriate and
required procedures were followed in connection with the
enactment of the PUD Ordinance; (iii) that no additional challenges
to the PUD Ordinance exist; and (iv) that the actions of the
Redevelopment Commission and City Council relating to the TIF
Approval are valid and appropriate and no additional challenges to
such actions exist.
Plaintiffs represent and warrant that they know of no other person
or entity that claims to have or intends to bring a cause of action
against the City Council, the Redevelopment Commission, the Plan
Commission, Duke-Weeks or NRC, relating to or in any way
connected with the Disputes.
The Plaintiffs further covenant that neither they, nor any of the
Releasing Parties, will commence, prosecute, or cause to be
commenced or prosecuted against any of the Released Parties,
any Claims which are being released by this Agreement; and that
the Plaintiffs will defend, indemnify and hold harmless each of the
Released Parties from and against any and all such Claims
asserted by Releasing Parties against any of the Released Parties
as a direct or indirect result of or in connection with any of the
subject matter of this Agreement. In the event of such Claim(s),
this Agreement may be pleaded as a full and complete defense
thereto, as a basis for an abatement of, or injunction against, said
action or other proceeding, and as a basis of a counterclaim,
crossclaim or separate action for damages.
11. Release by Affected Parties. The City Council, the City, the Plan
Commission, the CRC, Duke-Weeks and NRC (hereinafter
collectively referred to as the "Affected Parties"), represent that they
have no claims, rights, demands or causes of action against the
Plaintiffs related to the Disputes or as a result of the Lawsuits filed.
The Affected Parties, for themselves, jointly and individually, and
for their past, current and future members, heirs, estates, personal
representatives, successors, agents, assigns and for any business
or other entity of which any of them is a partner, member, director,
owner, officer, shareholder and/or employee (collectively the
"Releasing Affected Parties"), hereby release, acquit and forever
discharge the Plaintiffs, and any other affiliated individual,
corporation, business or joint venture to the same extent as is
expressly named herein, as well as their respective former, present
and future agents, representatives, predecessors, successors,
assigns, contractors, subsidiaries, parents, affiliates, partners,
directors, officers, shareholders, employees and attorneys
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(collectively the "Released Plaintiffs"), from any Claims which the
Releasing Affected Parties now have or may hereafter have,
whether known or unknown, or contingent or liquidated from the
beginning of time to the date of this Settlement Agreement.
12. Waiver of Challenge. Plaintiffs generally, and Heartland Coalition
on behalf of itself and each of its individual members, group
members, and financial supporters, and Belle Meade on behalf of
itself and its members, and every person or entity acting on behalf
of or in association with any or all of them, shall not remonstrate,
object or in any manner challenge the (i) EDA or EDP when it is
returned to the Plan Commission, CRC, or City Council unless the
EDA or EDP is substantially changed from the terms and conditions
previously approved by the Plan Commission, CRC and City
Council, as modified by this Agreement; or (ii) the approval of any
plans required to be approved under the PUD Ordinance, or
pursuant to the City's Zoning Ordinance, unless such plans are
substantially different than those required under the
PUD Ordinance and this Settlement Agreement
13. Entire Agreement. This Settlement Agreement contains and
embodies the entire agreement and understandings of the parties
with respect to the subject matter of this Settlement Agreement and
supercedes all prior agreements and understandings, oral or
written, between them relating to the subject matter of this
Settlement Agreement. No modification or waiver of the terms and
conditions contained herein shall be of any force and effect unless
such modification or waiver shall be in writing and signed by the
parties.
14. No Admission. It is understood that this Settlement Agreement is
the compromise of all Claims by the Releasing Parties against the
Released Parties. It is agreed and stipulated that this Agreement
shall be in full and final compromise and settlement of any and all
Claims which any of the Releasing Parties may now or in the future
have against any of the Released Parties relating to the Disputes,
and nothing contained in this Settlement Agreement shall be
considered or interpreted as an admission of liability on the part of
the City Council, the Plan Commission, the CRC or any other
Released Party.
15. Severability. If any term or provision of this Settlement Agreement
shall be deemed to be prohibited, invalid or unenforceable, such
provision shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
or affecting the validity or enforceability of such provisions and all
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such remaining terms and provisions shall remain in full force and
effect.
16. Governing Law. This Settlement Agreement shall be governed by
and construed in accordance with the laws of the State of Indiana.
17. Counterparts. This Settlement Agreement may be executed in
multiple counterparts, each of which shall constitute an original, and
together shall constitute the Settlement Agreement.
18. Acknowledgement. This Settlement Agreement is a result of
negotiations between the parties and no party shall be deemed to
be the drafter of this Settlement Agreement. Each of the parties
expressly agrees and acknowledges that, by signing this
Settlement Agreement, each of them represents and warrants that
(a) it is authorized to enter into and execute this Settlement
Agreement; (b) the information furnished in this Settlement
Agreement is true and accurate; (c) it has read this entire
Settlement Agreement; (d) it understands the terms and conditions
of this Settlement Agreement as well as the consequences of
entering into this Settlement Agreement; (e) it has knowingly and
voluntarily entered into this Settlement Agreement; (f) it has been
represented by an attorney in connection with entering into this
Settlement Agreement; (g) this Settlement Agreement shall inure to
the benefit of, and be binding upon, the parties, their related
affiliates, entities, officers, directors, members, agents, employees,
heirs, successors and assigns.
19. Legal Counsel. The parties are represented by legal counsel as
follows:
a. Plaintiffs: Gregory K. Silver and Jack W. Lawson
b. Heartland and Belle Meade: Gregory K. Silver and Jack W.
Lawson
c. City of Carmel and Plan Commission: John R. Molitor
d. City Council: Steven D. Hardin
e. Redevelopment Commission: Michael A. Wukmer and
Andrew J. Miroff
f. Duke-Weeks: Philip A. Nicely
g. NRC: Zeff Weiss
All legal counsel represent that they have discussed this Settlement
Agreement with their respective clients, have explained the
meaning and ramifications thereof to their respective clients, and
their respective clients are agreeable to the terms and provisions of
the Settlement Agreement.
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EXECUTED this day of , 2001.
"ZONING PLAINTIFFS"
HEARTLAND COALITION INCORPORATED
By:
Printed:
Title:
By: By:
Evan Goodman Lynda Goodman
By:
Pamela Lambert
By: By:
Robert M. Book Sydney Jeanne Book
By: By:
Charles N. Howard Karen J. Kennedy
By: By:
Leroy K. New Karen R. Risk
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By: By:
Dale Scannell Marilyn M. Scannell
By: By:
Arthur R. Van Allen Mary L. Van Allen
By:
Trudie H. Wanchow
"OPEN DOOR PLAINTIFFS"
By: By:
Gerald L. Wagner Patricia Wagner
REDEVELOPMENT PLAINTIFFS"
By: By:
Pamela Lambert Katharine N. Dickson
By: By:
James E. Schram Susan A. Schram
By: By:
Rose A. Schnell Caroline B. Valentine
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By: HEARTLAND COALITION
Steven Bradley INCORPORATED
By:
Printed:
Title:
"CITY COUNCIL"
• COMMON COUNCIL FOR THE CITY OF
CARMEL
By:
Printed:
Title:
"CITY"
THE CITY OF CARMEL, INDIANA
By:
Printed:
Title:
"PLAN COMMISSION"
CARMEL CLAY PLAN COMMISSION
By:
Printed:
Title:
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"CRC"
CARMEL REDEVELOPMENT COMMISSION
By:
Printed:
Title:
"DUKE-WEEKS"
DUKE-WEEKS REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership
By: Duke-Weeks Realty Corporation, an
Indiana corporation, its general partner
By:
Printed:
Title:
"NRC CORP."
NRC CORP.
By:
Printed:
Title:
"BELLE MEADE"
BELLE MEADE CIVIC ASSOCIATION
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By:
Printed:
Title:
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APPROVED BY:
Attorneys for Plaintiffs, Heartland and Belle Meade
Jack W. Lawson Gregory K. Silver
Beckman Lawson LLP Attorney at Law
200 E. Main Street, Suite 800 342 Massachusetts Avenue
PO Box 800 Suite 400
Fort Wayne, IN 46801-0800 Indianapolis, IN 46204
Attorney for City of Carmel and Plan Commission:
John R. Molitor
Molitor & Grisham, P.A.
11711 North Meridian Street, Suite 200
Carmel, IN 46032
Attorney for City Council:
Steven D. Hardin
McHale Cook & Welch, P.C.
320 North Meridian Street, Suite 1100
Indianapolis, IN 46204
Attorney for Redevelopment Commission:
Michael A. Wukmer Andrew J. Miroff
Ice Miller Ice Miller
One American Square, Box 82001 One American Square, Box 82001
Indianapolis, IN 46282-0002 Indianapolis, IN 46282-0002
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Attorney for Duke-Weeks:
Philip A. Nicely
Bose McKinney & Evans LLP
600 East 96th Street, Suite 500
Indianapolis, IN 46240
Attorney for NRC:
Zeff A. Weiss
Ice Miller
One American Square, Box 82001
Indianapolis, IN 46282-0002
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AGREED JUDGMENT t, .. ..
zt1\ l
The Plaintiffs, Heartland Coalition, Incorporated; Evan Go a y3 e�i
Goodman; Pamela Lambert; Robert M. Book; Sydney Jeanne Boo % harles N.
Howard; Karen J. Kennedy; Leroy K. New; Karen R. Risk; Dale Scan ari n e
M. Scannell; Arthur R. Van Allen; Mary L. Van Allen; and Trudie H. Wan `V'" W
counsel, and Defendants, the Common Council for the City of Carmel, Indiana
and the City of Carmel, Indiana, by counsel, agree and stipulate as follows:
1. On or about August 18, 2000, Duke-Weeks Realty Limited
Partnership ("Duke-Weeks") filed a petition with the Carmel-Clay
Plan Commission to rezone approximately 36.4 acres of real estate
owned by NRC Corporation ("NRC") from its S-2 and B-5 zoning
classifications to a PUD zoning classification ("PUD Ordinance").
2. On February 5, 2001, the Common Council for the City of Carmel,
Indiana ("City Council") approved the rezoning petition and adopted
the PUD Ordinance by a 5-0 decision.
3. On March 7, 2001, Plaintiffs filed a Complaint for Declaratory
Judgment challenging the validity of the PUD Ordinance.
4. The Plaintiffs and Defendants desire to resolve the disputes set
forth in the Complaint without the uncertainty, expense and delay of
further litigation.
5. With regard to the allegations set forth in the Complaint, the
Plaintiffs consent to a judgment in favor of the City Council and the
City of Carmel ("City") against the Plaintiffs, and more specifically
agree and stipulate to a determination or a judgment, that:
(a) the PUD Ordinance is valid, binding and in full force and effect
and was validly adopted by the City Council;
(b) the action of the Plan Commission in recommending approval of
the PUD Ordinance to the City Council and the action of the City
Council in adopting the PUD Ordinance (i) were not arbitrary,
capricious, unreasonable or an abuse of the City Council's
discretion; (ii) were not in willful disregard of the facts and
circumstances of the case; (iii) did not create illegal spot zoning;
(iv) were not contrary to the public health, safety, public
convenience and/or general public welfare; and (v) did not
violate IC 36-7-14-17(b);
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(c) the PUD Ordinance was approved and adopted in accordance
with all of the provisions of IC 36-7-4-600 et seq., and the
Zoning Ordinance of the City; and
(d) the PUD Ordinance was approved and adopted in accordance
with all of the provisions of IC 36-7-4-1500 et seq.; and
(e) all actions of the Plan Commission and the City Council,
including, but not limited to, the approval of the conceptual
development plan filed with the PUD Ordinance, were proper
and in accordance with appropriate statutory requirements and
the requirements of the City.
THE COURT BEING DULY ADVISED, hereby finds the foregoing
stipulations to be true.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
1. The actions of the Plan Commission and the City Council in
adopting the PUD Ordinance were not arbitrary, capricious,
unreasonable or an abuse of discretion; were not in willful disregard
of the facts and circumstances; did not result in illegal spot zoning;
and were not contrary to the public health, safety, public
convenience and general public welfare.
2. The actions of the Plan Commission and the City Council in
adopting the PUD Ordinance did not violate IC 36-7-14-17(b).
3. The PUD Ordinance was adopted in accordance with the provisions
of IC 36-7-4-600 et seq., and the City of Carmel Zoning Ordinance.
4. The PUD Ordinance was adopted in accordance with the provisions
of IC 36-7-4-1500 et seq.
5. All other actions of the Plan Commission and the City Council made
in connection with the PUD Ordinance, including, but not limited to,
approval of the conceptual development plan filed with the PUD
Ordinance were valid and proper.
6. The Settlement Agreement, a copy of which is attached hereto and
marked Exhibit A is made a part of this Judgment.
7. The PUD Ordinance was adopted in accordance with all applicable
procedure, is a valid and binding ordinance, and is in full force and
effect.
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The Clerk of this Court shall enter this Agreed Judgment in the Judgment
Docket Book.
DATED this day of , 2001.
JUDGE, Hamilton Superior Court
Distribution:
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