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HomeMy WebLinkAboutCC-07-21-03-02 Regan Settm'tSPONSOR(S): Councilor Snyder RESOLUTION NO. CC- 07-21-03-02 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, ACCEPTING SETTLEMENT AGREEMENT IN FRANK KELLS REGAN VS. CITY OF CARMEL WHEREAS, thc City of Carmel, Indiana, is currently involved in an inverse condemnation action in the Hamilton Superior Court No. 2, case caption Frank Kells Rcgan vs. City of Carmel, Cause No. 29D02- 0103-CP-134; and WHEREAS, the parties have, conditioned upon the approval of the Carmel Common Council and the Carmel Board of Public Works and Safety, entered into a proposed settlement agreement of the captioned lawsuit ("Conditional Settlement Agreement"), a copy of which is attached hereto and incorporated herein as Exhibit 1; and WHEREAS, on July 7, 2003, the Common Council held a properly noticed Executive Session to discuss this pending litigation and the proposed settlement thereof; and WHEREAS, on the recommendation of Cannel City Attorney Douglas C. Haney and Plan Commission Counsel John R. Molitor, and after due and proper consideration, the Common Council believes that it is in the best interests of the City to accept the Conditional Settlement Agreement; and WHEREAS, Carmel Mayor James Brainard has indicated to Common Council President Snyder that he supports the acceptance of the Conditional Settlement Agreement and will recommend that it also be accepted by the Carmel Board of Public Works and Safety. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Carmel, Indiana, that the Conditional Settlement Agreement be and the same hereby is accepted and approved by the Cannel Common Council effective upon execution of this Resolution by a majority of the Common Council and approval of the same by the Mayor. PASSED by the Common Council of the City of Carmel, Indiana, this __ 2003, by a vote of LO ayes and {2~ nays. day of ,_~ Ct~(x~ ~ ~in Kir~'~ ~.LfRundle r ,,~Konald E. Carter Wayne Wilson Prepared by John R. Molitor, Attorney at Law ATTEST: Diana L. Cordray, IAMC, Clerk-Tre ua~ Presented bu me to the Mayor of the City of Carmel, Indiana, this 2003, at / ~)'" ~';/~ O'clock, ._~. M. SPONSOR(S): Councilor Snyder _~day of ~ iana~. Cordr~-Treasurer D Approved_~y me, Mayor of the City of Carmel, Indiana, this~ day of 2003, at ] ~--~ O'clock, t~ . M. J~es~inard,~ -- ATTEST: Diana L. Cordray, IAM~ Clerk}Treasurer Council Resolution No. CC-07-21-03-02 Page Two of Two Pages Prepared by John R Molitor, Attorney at Law STATE OF INDIANA ) ) SS:. COUNTY OF HAMILTON ) IN THE HAMILTON COUNTY SUPERIOR. COURT NO. 2 FRANK KELLS REGAN, ) Plaintiff ) ) ) CITY OF CARMEL, ) Defendant ) CAUSE NO. 29D02-0103-CP-134 CONDITIONAL SETTLEMENT AGREEMENT Come now the parties in person and by counsel and enter into this Conditional Settlement Agreement. The signatories hereto represent and warrant that they have the personal and/or corporate authority necessary to bind such party to the terms hereof. The parties agree that in the context &this Agreement, the following words and/or phrases shall have the meanings set forth herein: "Illinois Street Extension" shall refer to and mean that street or road to be constructed by the City over and across the Real Estate in the location set forth in the exhibits attached. "Pumping Station ?areel" shall refer to the parcel within the Real Estate consisting of .795 acre as described in Exhibit A, attached hereto and made part hereof, which is to be separately conveyed to the City upon the execution of this Agreement; "Planning and Zoning" references shall mean any procedural activity required in connection with the development of the Real Estate by virtue of the Zoning Code of the City; "Pipeline" shall refer to the length of the Shall Oil Company pipeline which runs through the Real Estate; "Real Estate" shall mean the Real Estate owned by Regan which is the subject matter of this lawsuit located in Clay Township, Hamilton County, Indiana, and consisting of approximately 38 acres; "Remnant Parcels" shall mean those parcels, if any, that remain outside the portion of the Real Estate to be acquired by the City, lying between the Illinois Street Extension and U.S. 31, which because of the location and nature of the construction of the Illinois Street Extension shall be either inaccessible or unusable. "Regan" shall mean Frank Kells Regan, the plaintiff and the owner of the real estate which is the subject matter of this Agreement; "Residue" shall mean the portion of the Real Estate remaining after the sale to Carmel contemplated in this Agreement for the Illinois Street Extension; "Right-of-Way" shall mean any portion of the Real Estate which is being acquired and/or dedicated for use by the City for road and street purposes, utility location and/or other public purposes. Within this Agreement, reference to "Right-of-Way" may be abbreviated "ROW" "The Project" shall mean that contemplated development of buildings and other improvements on the Residue of the Real Estate. The design and construction of the Illinois Street extension is not part of The Project. 2, ~ettlement of Pendin_~ Lawsuit. It is the intent of the parties that the lawsuit now pending in this caption be fully and completely resolved by virtue of the agreements set forth hereat%r subject only to performance of the undert~kln~ set forth herein. Recognizing that certain elements of the Agreement will not be accomplished for a period or,me, the parties agree that the lawsuit may be dismissed without prejudice and subject to re-docketing in the event that there is a failure to undertake any executory element of this Agreement as required herein. In the event of re-docketing, the parties agree that they shall resume the status of the case "as is" and that there shall be no prejudice to either party relative to the remaining matters to be resolved within the litigation. The City of Carmel agrees by its execution of th/s Agreement to waive any objection that might otherwise arise because of the tolling of the stamta of limitations in the event that the case is redocketed because of a breach. In the alternative, the parties may let the case remain in a pending status with no activity to occur so long as the reqnlrements of the executory agreement are being fulfilled. Conveyance of.795 Acre for Pumping Station. In consideration of the payment of Two Hundred Seventy Eight Thousand Two Hundred and Fifty Dollars ($278,250.00) which is an amountequal to $350,000.00 per acre for that parcel of real estate described in Exhibit A, attached hereto and made part hereof, consisting of .795 acres (which represents the parcel of real estate to be used for a pumping station) from Carmel to Regan at closing, Regan agrees to immediately convey the parcel of real estate described in Exhibit A to Cannel from the entire real estate which is the subject of this lawsuit, subject only to rights-of-way of record, for use by Cannel as a site for a pumping station. The City may pay said sum in two installments with the balance due carrying simple Annual interest of 5% until paid in full and, in no event, the second installment be paid later than January 30, 2004. In addition to the cash consideration provided for herein, Cannel agrees additionally as follows with respect to such conveyed parcel: The site of the tract shall be subject to the approval of Regan. The site identified on Exhibit A is pre-approved by Regan; b. The site shall be located as set forth in Exhibit A; c. The design, construction and landscaping shall be undertaken by Carmel in a manner that is satisfactory to Regan and the approval thereof by Regan shall not be unreasonably withheld. Carmel agrees to provide' Regan with a site plan and architectural elevations of the proposed improvement for his written approval before construction is commenced. The parties anticipate that this conveyance shall be accomplished immediately following the execution of this Agreement and, if necassary, Regan agrees to provide a written Right of Access to Carmel which shall enable Carmel to undertake initial field work on the site prior to the completion of the conveyance. Carmel agrees that it shall cause this matter to placed on the agenda of the Board of Public Works and Safety of the City of Carmel at its earliest opportunity and to cause the adoption of an appropriate resolution author~ng the acquisition of the tract provided for herein at the cost specified. Failure of Carmel to adopt such a resolution within thirty (30) days of the execution of this Agreement shall be considered a breach of the Agreement and it shall thereafter be void, 4, Dedication of Additional Right-of-Way on 136th Street. Regan agrees to dedicate to the City of Carmel an additional 28.5 feet of ROW on and along the north side of the Real Estate for the length of its a.dt~acency to 136th Street thus providing a total of 45 feet of ROW to the eenterline of 136 Street. This provision is premised upon the existence of 16.5 feet ofexast~ng' ' ROW. In no event shall the entireth additional dedication extend the ROW more than 45 feet south of the centerline of 136 SUeet. 5, US 31 "Build To" Line. Carmel agrees that the "build to" line provided for in the Zoning Code of the City of Carmel from US 31 shall reflect the new ROW being dedicated to and/or acquired by the City of Carmel from Regan along the entire length of the Real Estate where it borders US 31. In this regard, it is the intent of the parties that Regan and/or his successors in interest shall not have a new "build to" line created by virtue of the construction of the new road contemplated by this Agreement but that the building line shall be from the US 31 ROW line. Regan agrees that the applicable "build to" line along the north side of the new ROW for the Illinois Street Extension is 20 feet. The City does not warrant that by providing for the "build to" line as defined herein, that Regan can construct buildings at said line because of the existence of the pipeline at its current location. 6, Obligation to Purchase Right of Way and Construct a New Street. The City of Carmel agrees to pumhase at the then Fair Market Value, as that shall be determined pursuant to the provisions of this Agreement, a portion of the Real Estate consisting of approximatoly 3.570 acres. The calculation oft_his acquisition is premised upon the following considerations: The total ROW to be acquired shall be ninety (90) feet in width and Regan shall contribute 40 feet of such ROW from the north side of the total ROW to the City of Cannel by dedication free of any additional consideration other than the Agreements set out herein. Carmel shall compensate Regan for the remaining 50 feet of ROW along the south side of the total ROW for the length of the ROW across the Real Estate from border to border, an approximate length of 3,120 feet. The precise location of the ROW shall be subject to the approval of Regan which shall not be unreasonably withheld. The parties acknowledge that the final determination of the exact dimensions of the ROW shall be made at the time final construction drawings are approved and the affect of such exact dimensions shall be taken into account in the calculation of the purchase price provided for herein. The parties currently contemplate that the ROW shall be located in accordance with certain drawings that establish the new ROW to adjacent to the existing ROW line for US 31 all as depicted in the drawing attached hereto, made part hereof and marked Exhibit B. In regard to this provision, the following conditions shall apply: Timing of Closing: Dedication and/or conveyance of the entire ROW as described above and payment of the cash consideration due Regan therefore, shall occur upon the first of the following: i. Five years from the date of this Agreement; ii. Completion of the financing to be accomplished by the City of Cannel in the following manner: a. Within 6 months of the receipt of the Project P1an, the City shall have executed a contract for the design and construction engineering that shall be necessary to the construction of the Illinois Street Extension from property line to property line across Regan's real estate; b. Within 6 months of the receipt of the Project Plan, the City shall initiate financing for the construction of the Illinois Street Extension across Regan's real estate. It is understood and agreed by and between the parties that the City may utilize a Tax Increment Financing procedure to generate the funds contemplated for this project and that the project itself may include elements in addition to the improvements to be constructed on Regan's real estate. However, the decision on the methodology or the design elements beyond Regan's real estate are within the entire control of the City of Carmel. c: Bid letting on the Illinois Street Extension, acceptance of bid(s), and the commencement of construction shall proceed in continuous sequence from the date upon which the City authorizes the procedure for financing the road construction project as contemplated above. In this regard, it is understood and agreed that the City shall act with all deliberate speed as to those matters within its control in connection with the financing and construction of the Illinois Street Extension from and after the obligation to proceed arises as set out above. Rerrmant Parcels. The parties acknowledge that based upon the drawings attached hereto and made part hereof, which show the location of the ROW to be dedicated and/or conveyed and sold to Cannel, that there will be two remnant parcels. With regard thereto, Regan agrees that he shall dedicate the remnant at the northeast comer of the ROW to the City of Carmel without additional cost. As to the remnant at the southwest comer of the Real Estate, Cannel shall purchase such Real Estate at it's then Fair Market Value as defined herein. With regard to the renmant parcels, the parties acknowledge and agree that the exact dimensions thereof shall be determined at the time the final construction plaas are approved, and appropriate adjustments to the purchase price shall result therefrom. Determination of Fair Market Value. The parties agree that the acreage to be acquired and paid for by the City of Cannel from Regan shall be valued at the time of the conveyance provided for above. The means of vaiuation shall be as follows: Each party (Regan and the City) shall select a qualified independent fee appraiser. The two so selected shall then select a third independent fee appraiser. The three so selected shall then determine the Fair Market Value of the unimproved acreage. If two of the three so selected shall agree upon a value, that shall be the Fair Market Value by definition and the parties shall be bound by such determination without recourse. The cost of the appraisers shall be equally divided between the parties. Related Infrastructure Issues. The parties acknowledge and agree that there are common infrastructure issues related to the construction of the Illinois Street Extension and the development of the residual real estate owned by Regan. In this regard, the parties agree as follows: Pipeline. The parties agree and acknowledge that them is a pipeline which extends across the Real Estate owned by the Shell Pipeline Company, LP. With regard to the potential or probable relocation of such pipeline, the parties agree as follows: '- If the Illinois Street Extension project proceeds before Regan or his successors commence consmaction on the residual real estate, the City agrees that, if the construction of the Illinois Street Extension necessitates a relocation or other adjustment of the pipeline, such relocation or adjustment shall be at the City's expense. It is expressly agreed and understood that the pipeline relocation, if it is necessary, extends to area's on the Real Estate which shall remain rifled to Regan (the residue) after the acquisition by the City as well as relocation required within the acquired area. IfRegan or his successors commence construction of improvements on the residual real estate prior to the commencement of the contraction of the Illinois Street Extension project, and a relocation of the pipeline is required for such construction, it shall be at the expense of Regan or his successors. If the City and Regan or his successors are preparing for the joint development of the Illinois Street Extension and the development of Re gan's residual real estate, they shall divide the cost of relocation in accordance with the linear feet of relocation required relative to their respective parcels. The City agrees that in any of the foregoing events, that an easement shall be reserved within the ROW for the placement of the pipeline in the event of its relocation or adjustment ail in accordance with the easement described for that purpose on Exhibit B to this Agreement. Storm Water. The City agrees that it shall make specific provision in the design and construction of the Illinois Street Extension project to ailow for and facilitate the natural flow of storm water and surface water run-offby providing an outer under said new road at the location identified on Exhibit B. The City agrees that said storm and surface water outlet shall be designed and instailed at a capacity sufficient to provide for the drainage from the residual reai estate owned by Regan. ii. Illinois Street Improvements. The City agrees that it shail confine ail of the improvements related to the Illinois Street Extension to the area of the ROW purchased and/or dedicated to the City. This provision is not intended to prevent the City f~om acquiring temporary ROW during construction of the Illinois Street Extension, if necessary. iii. Curb Cuts. The City agrees that Regan or his successors shall be permitted no fewer than the curb cuts onto the Illinois Street Extension as are currently illustrated and shown on Exhibit B. 7. Reservation of Proper _ty Rights. The parties acknowledge and agree that is the intent of the parties that the project to be developed on the residual property owned by Regan, which remains after the dedication, sale and conveyance of the ROW provided for herein, shall conform to the existing ordinances of the City of Carmel. It is understood that Regan or his successors or assigns have the fight to request modifications to the existing zoning. The City acknowledges that Rcgan has the right to use the residuai real estate in any manner that conforms to the existing ordinances and regulations of the City and the City will issue perraits for a proper Project after ail applications are duly submitted, reviewed and approved by the City's zoning and planning officials. In addition, the City acknowledges that Regan or his successors have the right to seek such additionai zoning approvals or zoning modifications that they may wish to pursue. Regan may submit such applications as are required to determine the feasibility of the development of the residual properW of Regan and in order to establish that a Project Plan, as contemplated by this Agreement, is acceptable to the City for the purpose of initiating the obligations of the City to acquire and construct the Illinois Street Extension and in such event the City agrees to give appropriate consideration to such applications. This provision shall not be read to impose an obligation on the City to approve such applications. 8. Option to Reaquire a Port~01a of thc Pumping Station Parcel, The parties agree that Regan shall retain an option to reaquire that portion of the Pumping Station parcel identified in Exhibit A consisting of 0.258 acres for an amount to be calculated in accordance with the following formula: The total acreage identified on Exhibit A divided by the total purchase price times 0.258 acres. In addition to the Option Price provided for in this paragraph, Regan shall pay 5% simple annual interest on said sum from the date of execution hereof until the date the Option is exercised. Exercise of the Option is strictly conditioned upon Regan providing a dedicated access to the remaining portion of the Pumping Station Parcel by other means adequate to the needs of the City. IN WITNESS WHEREOF, the parties have executed this Agreement this CITY OF CARMEL Defendant/ day of