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HomeMy WebLinkAboutCC-12-04-03-02 C-258 Settlement SPONSORED BY: COUNCILOR SNYDER RESOLUTION NO. CC-12-04-03-02 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, ACCEPTING SETTLEMENT AGREEMENT IN CLAY SOUTH CITIZENS COALITION VS. CITY OF CARMEL WHEREAS, the Carmel City Council passed Annexation Ordinance No. C-258 ("Ordinance") on September 3, 2003; and, VOtEREAS, shortly thereafter, the Mayor of the City of Carmel ("Mayor") signed the Ordinance; and, WHEREAS, the Ordinance was published on or about September 9, 2003; and WHEREAS, Clay South Citizens Coalition ("CSCC") is' an unincorporated association comprised of several hundred owners of land located in the area to be annexed pursuant to the Ordinance (''Annexation Area"); and, WHEREAS, CSCC contends that the City's passage of the Ordinance is unlawful, invalid, void and of no legal force or effect; and, WHEREAS, CSCC intends to file a remonstrance and declaratory judgment action challenging the legality of the Ordinance on or before December 8, 2003; and, WHEREAS, the City contends that the passage and enactment of the Ordinance were lawful; and, WHEREAS, the City and CSCC desire to settle their differences and disputes concerning the legality and validity of the Ordinance in order to avoid the expense, burden, and inconvenience of litigation. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Carmel, Indiana, that the Settlement Agreement, a copy of which is attached hereto and incorporated herein, be and the same hereby is accepted and approved by the Carmel Common Council effective upon execution of this Resolution by a majority of the Common Council and approval of the same by the Mayor. ~"xx PASSED by the Common Council of the City of Carmel, Indiana, this 7;b~ day of /~ i(~ (7.dt~,fo ~L , 2003, by a vote of {~ ayes and ~ nayes. COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA ..~l~nald E. Carter '~ Diana L. Cordray, IAMC, C1/~freasurer t~ ^ Pres?nted by me to tli~ef Mayor of the Cit~ of Carmel, Indiana, ~?-~f(~,--~, 2003, at /7~- ' fO o'clock,~.M, this /~/~ day of Diana L. Cordray, IAMC, Cff~-Treasurer /~ ..Apprcjved by me, Mayor of the City ^f Carmel, Indiana, this ~'-Y/~f/~ day of /~x-~v~0~42003, at ~/~) o'clock~_.M. rainard, Mayor ~ A/~EST: , Diana L. Cordray, IAMC, ~le~k-Treasurer Prepared By: Sue A. Beesley, Esq. BINGHAM McHALE LLP 2700 Market Tower 10 West Market Street Indianapolis, iN 46204 SETTLEMENT AGREEMENT CONCERNING CARMEL CITY ORDINANCE NO. C-258 This Settlement Agreement ("Agreement") is made and entered into by and between: (1) The City of Carmel, Indiana, the Mayor of the City of Carmel, Indiana, and the City Council of the City of Carmel, Indiana (collectively the "City"); and (2) The Clay South Citizens Coalition and its members (collectively "CSCC") on this 4th day of December, 2003. RECITALS. Whereas, the Carmel City Council passed Annexation Ordinance No. C-258 ("Ordinance") on September 3, 2003. Whereas, shortly thereafter, the Mayor of the City of Carmel ("Mayor") signed the Ordinance; Whereas, the Ordinance was published on or about September 9, 2003; Whereas, CSCC is an unincorporated association comprised of several hundred owners of land located in the area to be annexed pursuant to the Ordinance ("Annexation Area"). Whereas, CSCC contends that the City's passage of the Ordinance is unlawful, invalid, void and of no legal force or effect; Whereas, CSCC intends to file a remonstrance and declaratory judgment action challenging the legality of the Ordinance on or before December 8, 2003; Whereas, the City contends that the passage and enactment of the Ordinance were lawful; Whereas, the City and CSCC desire to settle their differences and disputes concerning the legality and validity of the Ordinance in order to avoid the expense, burden, and inconvenience of litigation; Whereas, by the execution of this Agreement by the City Mayor and by the majority of the members of the City Council, the City represents that this Agreement has been lawfully approved by the Mayor and the Council. AGREEMENT In consideration of the Recitals and terms set forth, the City and CSCC agree as follows: 1. Passage and Adoption of an Amendment to the Ordinance On or Prior to December 4~ 2003 Which Provides a Two Year Extension to the Ordinance's Effective Date. On or before December 4, 2003, the Carmel City Council shall lawfully pass an amendment to the Ordinance (hereinafter the "Amc~ndment"). Pursuant to Indiana Code § 36-4-3-8(b)(1), the Amendment shall provide that the effective date of the annexation shall be postponed by two (2) years such that the annexation shall no~t become legally effective for an,/purpose (including providing any basis for the properties located in the Annexation Area to be considered within, or a part of, the City of Carmel for taxing purposes) until at the earliest December 9, 2005. Both the Carmel City Council and Mayor shall take all action necessary to ensure the legality and validity of the above-referenced Amendment to the Ordinance. The Mayor and presiding officer of the Carmel City Council shall formally sign and adopt the Amendment pursuant to Ind. Code §36-4-6-14 within one (1) business day of the Carmel City Council's passage of the Amendment. Likewise, the Mayor and Carmel City Council shall take all necessary and appropriate action to approve this Agreement within one (1) business day after the Carmel City Council's passage of the Amendmont, and they agree to execute all other necessary documents to ensure the Agreement's validity. Prior to December 9, 2005, the City shall not repeal, revoke, or in any way modify, the above-referenced Ordinance or Amendment to the Ordinance, or pass or enact any legislation that in any way conflicts with the provisions or intent of this Agreement. 2. Ci .ty's Payment for CSCC's Reasonable Costs and Attorneys' Fees. The City shall reimburse CSCC for certain costs and attorneys' fees it incurred related to this matter and the settlement reached by the parties in the stipulated amount of $30,000, payable on or before January 15, 2004. The check shall be made payable to "Sommer Bamard Ackerson and CSCC." 3. Litigation Challenging the Ordinance. If any lawsuit is filed prior to December 9, 2003 which challenges the legality and/or effectiveness of the Ordinance, this Agreement shall become null and void, unless each such lawsuit is dismissed with prejudice on or before December 19, 2003. The City shall notify counsel for CSCC in writing of any and all such litigation challenging the legality and/or effectiveness of the Ordinance by December 17, 2003. Under all circumstances, the City and CSCC expressly acknowledge that CSCC and its members shall still retain the right under Indiana Code § 36-4-3-16 to file any appropriate legal action outlined by that statute. 4. Breach; Enforcement of Remedies. It is understood by the City and CSCC that each party shall have the right to institute and prosecute any proceeding, at law or in equity, against any other party hereto for violating or threatening to violate any obligation contained in this Agreement, which right shall include the right to seek and obtain in any court of competent jurisdiction an injunction to restrain a violation or alleged violation as well as the right to damages at law. Any party violating any obligation to this Agreement agrees to indemnify and hold harmless the other party against and from any and all liability, loss, or damage arising from such breach, including any and all legal costs, charges, and attorneys' fees reasonably incurred in enforcing such obligation. 5. Acknowledgment of Parties. Each party hereto acknowledges, covenants, and agrees that it has read this Agreement, that it understands its terms, including the legal consequences thereof, and that in offering to make, and in making, executing and delivering this Agreement, it was not acting under any duress, undue influence, misapprehension, or misrepresentation by any party hereto, or any agent, attorney, or other representative of any party and that this Agreement was made, executed, and delivered as a free and voluntary act. 6. Entire Agreement; Reliance; Binding Effect. This Agreement represents a complete and total integration of the agreement of the parties hereto and supersedes all prior or contemporaneous written or oral agreements relating to this subject matter. The parties hereto agree that any and all prior agreements covering the subject matter of this Agreement are hereby terminated and are of no further force or effect. The parties hereto intend that each of the statements made herein shall be construed as a representation, that each of the representations is made for the purpose of inducing each other to execute this Agreement, that each of the representations is true, and the parties hereto expressly authorize each other to rely upon such representations and acknowledge that such representations have in fact been relied upon by each party. All of the obligations contained in this Agreement shall be binding upon the parties hereto, and their respective successors, assigns, and other representatives. 7. Authority. The undersigned persons executing this Agreement on behalf of the parties hereto each represent that he/she is fully empowered to execute this Agreement in the capacity shown below and that all necessary action for the making of this Agreement has been taken and done. 8. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and each subsequent counterpart shall together constitute but one in the same instrument. IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and date first written above. CITY OF CARMEL, INDIANA By(ames Brainard, Mayor k City of Carmel Clay South Citizens Coalition Indiana Mmnber, City Council of Carmel, Indiana Mem~a~r, City'~Ul~cil olgCarmel, Indiana Member, City Council~armel, Indiana_ ~? J ) ^ Member, City Council of Carmel, Indiana Member, City Council of Carmel, Indiana By: Member, City Council of Carmel, Indiana APPROVED AS TO FORM AND LEGALITY: aney, City Indiana #115503 ATTEST: By: Diana Cordray, Clerk-Tr~s~rer City of Carmel, Indiana