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HomeMy WebLinkAbout11-06-19-04 Acknowledging Settlement Agreement and Release RESOLUTION NO.BPW 11-06-19-04 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING SETTLEMENT AGREEMENT AND RELEASE WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Cannel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS,pursuant to Indiana Code 36-4-5-3,the City's mayor may enter into contracts on behalf of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard,has caused to be signed the City contract attached hereto as Exhibit A(the"Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged,filed in the Clerk-Treasurer's Office, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Cannel Board of Public Works and Safety as follows: 1.The foregoing Recitals are incorporated herein by this reference. 2.The receipt of the Contract is hereby acknowledged. 3.The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to the public for review. SO RESOLVED this day of A701/ 2019. CITY OF CARMEL, IANA By and through its Boar of Public Works and Safety BY: ames Brainard,Presiding Of .cer Date: r Mary • Burke, •rpbe Date: /-1 Lori S.W o s✓ yrnb/r Date: P i A ES 3;° Christine Pauley,ylerk-TreA7rer, Dto // 4 7 S:\E Bass\My Documents\BPW-Resolutions\2019Acknowledge Duke Energy,LLC Settlement Agreement and Release.docx10/29/2019 2:40 PM EXECUTION VERSION & e er SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is entered by and between the CITY OF CARMEL, INDIANA, by and through its Board of Public Works and Safety("City"), and DUKE ENERGY INDIANA, LLC, ("DEI"), a regulated public utility and Indiana limited liability company. RECITALS WHEREAS, on or about 21st day of November 2017, the Common Council of the City of Carmel, Indiana(the "Council") enacted Ordinance D-2399-17 (the"Ordinance") that relates to a proposed DEI electric substation(the"Substation") that was initially planned for 1201 N. Rohrer Cannel, IN 46032 and, following the purchase of a new property by DEI, is now expected to be built at 925 N. Rohrer Road, Carmel, Indiana 46032 (the"New Property"); and WHEREAS,pursuant to the Ordinance, the Council declared that DEI must meet certain conditions precedent for the construction of the Substation and DEI disputes the right of the City,by Ordinance or otherwise, to impose conditions on DEI's construction of the Substation including to obtain Board of Public Works approval (the"Claim"); and WHEREAS, in lieu of litigation and its inherent costs and uncertainties, the City and DEI(jointly, the"Parties") each now desire to compromise and settle the Claim on the following terms and conditions. AGREEMENT NOW,THEREFORE, in consideration of the foregoing promises and the terms, covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Non-Admission. The Parties each acknowledge that this Agreement does not constitute an admission of liability by either Party with respect to the passage or applicability of the Ordinance or its conditions to the Substation or the merits of the Claim, and this Agreement is entered solely for the 1 EXECUTION VERSION purpose of compromise and to fully resolve all matters pertaining to the Claim and shall not set a precedent in any way for either Party. 2. No Lien/Lawsuit. The Parties each agree that,upon and in consideration for the execution of this Agreement by the other party hereto, they each covenant and agree to refrain from and shall not file or attach any lien or other encumbrance upon the other party hereto by virtue of or on account of the Claim, nor institute, prosecute, or in any way encourage or aid in the institution or prosecution of any claim, demand, lawsuit, action or cause of action against the other of the Parties for damages, costs, expenses, compensation, or otherwise,for or on account of any damage, loss and/or injury to person or property, whether known or unknown,patent or latent, in law or in equity, which such party had,has or may have from the beginning of time through the execution of this Agreement and relating to the Claim. 3. Release by City. City shall and does hereby forever release, discharge and agree to hold harmless DEI, its parent, subsidiaries, affiliates and joint venturers and each of their directors, stockholders, officers, agents, employees,representatives, insurers,predecessors, successors and assigns, from any and all claims, actions, causes of action, suits, debts, accounts and demands whatsoever and however arising, whether known or unknown, foreseen or unforeseen, patent or latent, which the City had, has or may have from the beginning of time through the execution of this Agreement relating to the Claim, except that this Release does not affect the obligations under this Agreement. 4. Release by DEI. DEI shall and does hereby forever release, discharge and agree to hold harmless City, as well as its directors, officers, officials, agents, attorneys, employees, representatives, insurers, successors and assigns, from any and all claims, including any constitutional claims and costs and fees associated therewith, actions, causes of action, suits, debts, accounts, contracts and demands whatsoever and however arising, whether known or unknown, foreseen or unforeseen, patent or latent, which DEI had,has or may have from the beginning of time through the execution of this Agreement relating to the Claim, except that this Release does not affect the obligations under this Agreement. 2 EXECUTION VERSION 5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties' representatives, subsidiaries, divisions, officers, officials, directors, shareholders,agents, employees, alter egos, successors and assigns. 6. Agreement as Evidence. This Agreement may not be used as evidence in any subsequent proceeding except to the extent such proceeding is initiated to enforce the terms of this Agreement. 7. Severability. In the event any provision of this Agreement is deemed to be invalid or unenforceable by any court or administrative agency of competent jurisdiction, the Agreement shall be deemed to be excised, restricted or otherwise modified to the extent necessary to render the same valid and enforceable. 8. Terms. Based on the foregoing Paragraphs and the terms set forth below and in consideration of the Parties' mutual releases as are set forth above, the Parties agree as follows: a. DEI agrees to dedicate a forty (40) foot strip of land as shown in the attached Exhibit 1 (the "Dedication")to the City, at its request, for the purpose of constructing a public road ("Proposed Road") and to re-engineer the location of DEI's proposed Substation on the New Property to accommodate this Dedication. As part of the Dedication, DEI shall ensure that: i. No existing or planned electric facilities that are part of the Substation are placed in the Dedication, and ii. any detention/retention pond for the Substation is not located in the Dedication. b. In consideration of the Dedication defined in subparagraph 8. a. above and the re- engineering costs that DEI will incur to relocate the Substation because of the Dedication, including, but not limited to, the costs of relocating existing distribution lines into the Substation, the cost of new facilities necessary to bring new transmission lines into the Substation, and the cost of re-engineering a detention pond ("Re-Engineering Costs"),the 3 EXECUTION VERSION City shall pay all Re-Engineering Costs to DEI. The estimated Re-Engineering Costs are Two Hundred Thirty-Three Thousand, Nine Hundred and Ninety-Eight Dollars ($233,998 ("Estimated Payment"). The Estimated Payment, or if available, the Final Payment(all final DEI Re-Engineering Costs resulting from the Dedication), shall be paid by the City within forty-five (45) days of the receipt of a detailed and authenticated invoice for such ' Estimated or Final Payment of engineering costs associated with the Re-Engineering Costs. Such invoice shall be submitted no earlier than January 1, 2020. If DEI submits an invoice and the City makes the Estimated Payment before re-engineering is completed, the Parties agree to true-up the Estimated Payment with the final re-engineering amount. If the Estimated Payment results in an under-payment by the City, DEI shall submit another invoice for the underpayment, which shall be paid by the City within forty-five(45) days of receipt. If the Estimated Payment results in an overpayment by the City, DEI shall refund any overpayment within forty-five(45) days of the true-up. Neither Party is liable to the other for interest or penalties on any under- or overpayment. c. The City acknowledges that DEI has previously timely submitted its Storm Water Pollution Prevention Plan("SWPPP") for the Substation to the City and the State and that only if re-engineering necessitates an amended SWPPP, will DEI be required to resubmit the SWPPP to the City. If the Dedication does not require that the SWPPP be resubmitted, the City agrees that the SWPPP that was previously submitted by DEI is deemed approved by the City. If the SWPPP is resubmitted due to changes necessitated by the Dedication, the City will not condition the approval of the amended SWPPP on the Ordinance and will follow the same timelines and procedures that apply to any party seeking a SWPPP from the City under the procedures set forth in the Carmel City code. 4 EXECUTION VERSION d. The City acknowledges that the Dedication will require a relocation of the Substation to the north on the New Property, thereby affecting private property owners that abut the north boundary of the New Property. The City agrees that it will work jointly with DEI to create a mutually acceptable communication plan to inform all interested third parties, including the north property owners, about the need for the Substation, its relocation, the Dedication and the City's stated purpose for the Dedication. The Parties also agree to jointly meet and communicate with the abutting property owners to answer their questions. Neither party shall disparage the other in these meetings and in communication about the Substation, and any and all communications to the public and shall focus on the benefits of the Substation and the Dedication. e. The City has requested and DEI agrees that as part of the Relocation, based on prudent engineering standards applicable to the relocation of the Substation following the Dedication and where feasible,DEI will provide vegetation maintenance easements to the City at no cost on the north and west sides of the Property. The City acknowledges that the Dedication may make it impossible to provide a vegetation easement and/or may limit any vegetative screening on the north boundary of the Property. However,DEI agrees to make best efforts in re-designing the Substation to accommodate a vegetative easement on the north boundary of the New Property. The City shall be solely responsible for installing and maintaining vegetative screenings in both the north and west vegetative easements, subject to approval by DEI to ensure that such screening meets prudent industry standards including all applicable clearances and regulations. If the City fails to\maintain vegetation in the City's easements and such vegetation, in DEI's judgment, interferes with or could interfere with the reliable and safe electric service of the Substation,DEI retains the right to request the City trim or remove such vegetation. If the City fails to trim or remove such 5 EXECUTION VERSION vegetation after DEI provides notice to the City's Engineer,DEI may trim or remove such vegetation at the City's cost. f. DEI agrees to admit Counts II and VI and the City shall dismiss Counts I, III, IV, and V in Cause Number 29D05-1811-OV-008201 within 7 days of the execution of this Agreement. In consideration thereof, DEl shall pay Court costs of$135.00 and$750.00 in fines, for a total of$885.00. 9. Counsel. The Parties, and each of them, warrant that they have read this Agreement and understand it, have had an opportunity to obtain the advice and counsel of an attorney throughout the negotiation of this Agreement,have actual authority to enter into this Agreement on behalf of the party for whom they execute same, and enter into this Agreement freely and without any duress,undue influence or coercion. 10. Costs and Attorney Fees. Each party shall pay its own costs and attorney fees related to the Claim and this Agreement. 11. Failure to Comply. Should any party breach or otherwise fail to comply with the terms and provisions of this Agreement, the prevailing party in any such dispute shall be entitled to recover, in addition to any other appropriate relief, all costs arising therefrom, including, but not limited to, attorney fees. 12. Construction. This Agreement shall be construed according to the laws of the State of Indiana, except for Indiana's laws regarding conflicts of law, and shall not be altered or otherwise amended except pursuant to an instrument in writing signed by all Parties hereto. 13. Entire Agreement. This Agreement constitutes and contains the entire agreement between the Parties concerning the transactions contemplated herein and supersedes all prior negotiations, proposed agreements and understandings, if any,between the Parties. 6 EXECUTION VERSION 14. Section Headings. The section headings herein have been used as a convenience of reference only and shall in no way modify or restrict any of the terms or provisions hereof. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original. IN WITNESS WHEREOF, the Parties have signed this Agreement on the dates below their respective signatures or the signature of their representatives. The effective date of this Agreement shall be the date of the last signature affixed hereto. DUKE ENERGY INDIANA ("DEI") Stan Pinegar President, Duke Energy Indiana Date: 1 O CITY OF CARMEL,INDIANA ("City") BY: /S The Honorable James C. Brainard Mayor Date: l v/42// l 7 7