HomeMy WebLinkAboutCCM-11-18-96City of Carmel
CARMEL CITY COUNCIL MEETING AGENDA
MONDAY, NOVEMBER 18, 1996 -- 7 P.M.
COUNCIL CHAMBERS / CITY HALL / ONE CIVIC SQUARE
Meeting Called to Order
2.
3.
4.
10.
Invocation
Pledge of Allegiance
Recognition of Outstanding Citizens/City Employees
Approval of Minutes
a. November 4, 1996, Executive Session
b. November 4, 1996, Regular Meeting
Recognition of Citizens Who Wish to Address the Council
Action of Mayoral Vetoes
Claims
a. $251,882.55 Claims
b. $744.12 Miscellaneous
c. $473,820.58 Payroll
d. $30,498.96 Retirement
Committee Reports
Old Business
a. Second Reading Ordinance D-1253-96/An Ordinance
Establishing an Economic Development Fund; Clerk-
Treasurer Diana Cordray
b. Second Reading Ordinance D-1256-96/An Ordinance
Amending Chapter 3, Article 1, Division II, Section
25 of the City Code; Clerk-Treasurer Diana Cordray
Public Hearings
a. First Reading Ordinance Z-315/Amendment to Zoning
Ordinance No. Z-160, As Amended/Rezone Request of Lots
5, 6 and 7 of North Augusta/Chris Badger of Badger
Engineering and Associates, Inc.
ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400
11.
12.
13.
14.
New Business
a. First Reading Ordinance D-1252-96/An Ordinance
Amending Chapter 3, Article 1, Division II, Section 3-
30 of the City Code, titled ~Council Appointments and
Removal"; Mayor James Brainard
b. First Reading Ordinance D-1258-96/An Ordinance
Amending Ordinance D-1224-96 to Change Certain
Positions within Carmel Clay Communications Center;
Mayor James Brainard
c. Resolution CC-11-18-96-01/Resolution to Request
Transfer of Funds within Fire Department Budget; Fire
Chief Doug Callahan
d. Request to Use $200,000 from the Non-Reverting EMS
Fund/Fire Chief Doug Callahan
Other
Announcements
Adjournment
~L CITY COUNCIL MEETING MINUTES
MONDAY, NOVEMBER 18, 1996 -- 7 P.M.
COUNCIL CHAMBERS / CITY HALL / ONE CIVIC SQU/a~RE
MEMBERS PRESENT: Mayor Brainard; Councilors Kirby, Miller,
Battreall, Rundle, Snyder, Carter and Walker. Clerk-Treasurer
Cordray and Chief Deputy Wolf also attended.
Mayor Brainard called the meeting to order at 7:02 p.m.
Miller gave the invocation. The mayor led the pledge of
allegiance.
Councilor
RECOGNITION OF OUTSTANDING CITIZENS/CITY EMPLOYEES: Mayor
Brainard presented Thomas Mills, vice president of operations
Conseco, with a new ~Design Excellence Award" for outstanding
landscape architecture at Conseco.
at
APPROVAL OF MINUTES: Councilor Walker moved to approve the
executive session and regular meeting minutes from November 4,
1996. Councilor Snyder seconded. All members voted AYE. The
minutes were approved 5-0. Councilors Carter and Kirby were not
present.
RECOGNITION OF CITIZENS WHO WISH TO ADDRESS THE COUNCIL: James
Garretson, 55 York Drive, asked the council to consider whether
the proposed hostile annexation was in the best interest of those
presently living in the city.
CLAIMS: Councilor Snyder moved to approve the claims as listed on
the agenda (Items 4a through 4d). Councilor Walker seconded. All
members voted AYE. The claims were approved 6-0. Councilor Kirby
was not present.
COMMITTEE REPORTS: Councilor Battreall, member of the Cable
Advisory Committee, stated that the History Channel would be
added to the cable system and that American Cablevision planned
to expand to 60 or 87 channel outlets in the near future. The
next meeting of the Cable Advisory Committee would be January 15,
1997.
OLD BUSINESS: Mayor Brainard summarized Ordinance D-1253-96/An
Ordinance Establishing an Economic Development Fund and explained
the Economic Development Commission had asked the Clerk-Treasurer
to take over responsibility of its funds. All members voted AYE.
The ordinance was approved 6-0. Councilor Kirby was not present.
Mayor Brainard introduced Ordinance D-1256-96/~dn Ordinance
Amending Chapter 3, Article 1, Division II, Section 3-25 of the
City Code and explained the ordinance allowed for a simpler
numbering system for ordinances. All members voted AYE. The
ordinance was approved 6-0. Councilor Kirby was not present.
PUBLIC HEARINGS: Chris Badger of Badger Engineering and
Associates, Inc. introduced Ordinance Z-315/An Amendment to
Zoning Ordinance No. Z-160, As Amended/Rezone Request of Lots 5,
6 and 7 of North Augusta. Mr. Badger stated his client wanted to
build a Days Inn Suites on the east side of U.S. 421 between 96th
and 98th streets. He explained that he and county officials had
agreed that drainage from the proposed building would not affect
neighbors' drainage. The mayor opened the public hearing at 7:30
p.m. No one from the public wished to speak, so the mayor closed
it at the same time. The ordinance was carried over to the next
meeting.
NEW BUSINESS: Mayor Brainard introduced Ordinance D-1252-96/An
Ordinance Amending Chapter 3, Article 1, Division II, Section 3-
30 of the City Code, titled Council Appointments and Removal. The
mayor explained the amendment was to bring the Carmel City Code
into compliance with state law and city practice. The ordinance
was carried over to the next meeting.
Mayor Brainard introduced Ordinance D-1258-96/An Ordinance
Amending Ordinance D-1224-96 to Change Certain Positions within
the Carmel Clay Communications Center. Councilor Walker moved to
introduce the ordinance. Councilor Rundle seconded. The mayor
stated since this was a fiscal ordinance, it required a public
hearing. Clerk-Treasurer Cordray stated the ordinance had been
advertised in the paper as a public hearing. The mayor opened the
public hearing at 7:37 p.m. No one in the audience wished to
speak, so the mayor closed the public hearing at 7:38 p.m. Clerk-
Treasurer Cordray and Mayor Brainard discussed when the ordinance
would go into effect. The ordinance was carried over to the next
meeting.
Mayor Brainard introduced Resolution CC-11-18-96-01/A Resolution
to Request Transfer of Funds within the Fire Department Budget.
Councilor Carter moved to approve the resolution. Councilor
Walker seconded. Chief Doug Callahan explained why he was
requesting to transfer funds. Councilor Rundle questioned why
money for legal fees was coming out of the Fire Department budget
when the council recently passed a resolution requiring legal
fees to come out of the Department of Law budget. Mayor Brainard
explained the resolution did not go into effect until 1997. Chief
Callahan stated that all expenditures from this request were for
this year, with the exception of money for promotional testing,
which he planned to use in January. All members voted AYE. The
resolution was approved 7-0.
Chief Callahan explained that his request to use $200,000 from
the Non-Reverting EMS Fund would enable the Fire Department to
buy four staff cars, two pick-up trucks and an ambulance. He also
stated he had sent a letter to the Township Board for its
approval as required by the joinder agreement. Councilor
Battreall moved to approve the request. Councilor Walker
seconded. All members voted AYE. The request was approved 7-0.
OTHER: Councilor Miller moved to add the following motion to the
agenda: a motion to eliminate any question that the restitution
position statement filed in the matter of State of Indiana v.
Theodore Johnson is the official position of the City of Carmel,
Indiana. Councilor Snyder seconded. Mayor Brainard excused
himself from the meeting, maintaining his policy not to
participate in any discussion pertaining to the legal action
against the former mayor. Mayor Brainard turned the meeting over
to Council President Miller. Six councilors voted AYE. Councilor
Rundle abstained. The motion was added to the agenda by a vote of
6-0.
Councilor Snyder moved that Councilor Miller give a summary of
the motion, as opposed to reading it in full. Councilor Battreall
seconded. Six members voted for the summary, Councilor Walker
voted against it. Reading a summary of the motion was approved 6-
1.
Councilor Miller read the motion, summarizing that all actions of
the city attorney, the utility manager and the Honorable James
Guy Miller with regard to the matter known as State of Indiana v.
Theodore Johnson, Cause No. 29DO3-9609-DR-262, including, without
limitation, the filing of the restitution position statement with
the Honorable William Hughes and the notification to Data Link
Systems, Inc. as to the void status of the contract with the City
of Carmel, was hereby ratified, confirmed and approved. Councilor
Battreall moved to approve the motion. Councilor Snyder seconded.
Six members voted AYE, Councilor Rundle abstained. The motion was
approved 6-0.
ADJOURNMENT: Councilor Kirby moved to adjourn the meeting.
Councilor Battreall seconded. All members voted AYE. The meeting
was adjourned at 8:12 p.m.
Respectfully submitted,
Attest:
Approved,
A MOTION OF THE COMMON COLrNCIL OF THE CITY OF CARMEL,
INDIANA RAT]FlYING, ADOPTING AND CONFIRMING ACTIONS TAKEN BY
THE CITY ATTORNEY, THE UTILITY MANAGER AND THE PRESIDENT OF
THE COMMON COUNCIL IN THE MATTER OF STATE OFINDIANA E
THEODORE JOHNSON, CAUSE NO. 29DO3-9609-DR-262
WHEREAS, IC 36-4-4-4 empowers the Common Council of the City of Carmel
with all legislative powers; and
WHEREAS, IC 36-1-4-7 empowers the City of Carmel to enter into contracts;
and
WHEREAS, IC 36-1-12-1.2, IC 36-8, and IC 36-9 empower the Board of Public
Works and Safety with its power to enter into and terminate contractual obligations; and
WHEREAS, IC 36-1-3 et seq. C'Home Rule") empowers the City of Carmel to
perform action necessary for the effective operation of govemment as to local affairs; and
WHEREAS, The Hamilton County Prosecutor requested that the City of Carmel
provide input into the alternative resolution of STATE OF INDIANA V. THEODORE
JOHNSON, CAUSE NO. 29DO3-9609-DR-262; and
WHEREAS, The Carreel Common Council at a September 27, 1996 public
meeting by formal motion unanimously approved, instructed the City Attorney and the
Utility Manager to work with the Hamilton County Prosecutor toward a resolution of the
charges filed that day against Theodore Johnson and to keep the members of the Common
Council informed; and
WHEREAS, the City Attomey and the Utility Manager have complied with the
direction of the Common Council; and
WHEREAS, the Honorable James Guy Miller, in his capacity of President of the
Common Council, executed a written statement of a request for restitution attached hereto
as Exhibit A (the "Restitution Position Statement"); and
WHEREAS, the Hamikon County Prosecutor received and filed the Restitution
Position Statement pursuant to the October 14, 1996 order by the Honorable William
Hughes (the "Order"); and
WHEREAS, the Defendant, Theodore Johnson, has argued in his position
statement that the City of Carmel did not take requisite official action to comply with the
Order; and
WHEREAS, Carreel Common Council desires that the Honorable William Hughes
receive satisfactory documentation evidencing that the City of Carmel has taken all
appropriate and necessary action to terminate the Data Link Systems, Inc. contract and
request restitution in the amount of $18,386.25; and
WHEREAS, IC. 36-1-4-16 entitled "Ratification of acts of officers and
employees" provides that a unit may ratify any action of the City of Carmel, its officers or
employees if that action could have been approved in advance; and
WHEREAS, the Common Council desires to further corroborate its prior direction
to the City Attomey and the Utility Manager by ratifying, continning and approving all
actions taken by the City Attorney, the Utility Manager and the Honorable James Guy
Miller including the termination of the Data Link Contract pursuant to the January 18,
1996 letter, the October 11,1996 letter and all actions consistent therewith (copies
attached).
NOW, THEREFORE, BE IT DETERMINED, by the Common Council of the
City of Carmel, Indiana that all actions of the City Attomey, the Utility Manager and the
Honorable James Guy Miller with regard to the matter known as STATE OFINDIANA V.
THEODORE JOHNSON, CAUSE NO. 29DO3-9609-DR-262, including, without
limitation, the filing of the Restitution Poskion Statement with the Honorable William
Hughes and the termination of the contract with Data Link Systems, Inc. are hereby
ratified, confirmed and approved.
BE IT FURTHER DETERMINED, by the Common Council of the City of
Carreel, Indiana that the Clerk-Treasurer immediately certify a true and correct copy of
this Motion and deliver it to the City Attorney for filing with the Honorable William
Hughes, if possible, on Tuesday, November 19, 1996.
BE IT FURTHER DETERMINED, by the Common Council of the City of
Carmel, Indiana that the City Attorney prepare and distribute to the members of the Board
of Public Works and Safety for their consideration at the November 20, 1996 meeting a
resolution similar to this Motion so that the Honorable William Hughes may consider the
filed Restitution Position Statement and the terminated status of the City's contract with
Data Link Systems, Inc. the result of official acts of the City of Carmel, Indiana.
Passed and Adopted this 18th day of November, 1996 by the Common Council of the City
of Carmel, Indiana.
ATTEST:
Diana L. Cordray, Clerk-Treasurer
johnsonresolution
EXHIBIT A
NOYZ__C-'.: _=,~__-s'~azt t: Local
f~!~s ~'l~ ~:e C~z, Su~ezicz cr Ca~- Cc~=s cf H~mi!tan
C:~ty. Tjs fa~, may
each re~es~ fsr relief.
T~_!$ sac=ion for Ccur= usaqe on!y:
CGDE -2ntered ~y:
RESTITUTION POSITION STATEMENT
Indiana cm~s have ~vers~y he~d mat a contact fig ~i
co~ct of ~teres~se~-denling statute is absolutely void, bo~
. g . . . . . , . '~
contact." Noble v. D~ison, supra., McN~ v. Town of Lowell, supra.
co~ ~so rejected recove~ by the con~actor b~ed o~ a ~u~m me~t cl~, sta~g
· at "k has been comistenfly f~e~ by fl~s cm~ ~d ~e Supreme Co~ ~at
con~ac~ by m~cip~ officers wl~ch were either proI~bked by statute or Colafive of
~e afles of pubic pokey coGd not resdt h crea~g finp~ed Hi~ ag~st such
colorations." 84 N.E. at 782. ~:e ~fc~Vay com~ wc~a reco~iTe recove~ en a
quaare meant ~e~ ~ ~ hv~d contact ~v~Ned a c~e where the m~cip~ officer
was compete:t to act ~d had j~s~cfion over the subject ma~er ~d
~ose out of s~me ~e~d~ of ~o~ ~ i~s execution. L~e,Mse, ~ N&le v.
Davison, the cot~ stated that "~ eq~tile ~t c~ ~o~ be fo~mdea
law." 96 N.E. at 330. With respect to Data E~'s outst~ig Data Li ~veice No.
0980 dated J~u~ 23, 1996 for $1~,034.7~ (the "~vdce"), the Ci~ of C~el has
t~en the ~sifioa ~a~ Because the la~v of~e Sta~e of~di~a renders the contact
Data Li void, the City c~ ~ot pay the ~voice.
As regards the resHmtion mnotmt, Indiana law allows the CiF to se& reimbursement
for the entire amotmt of the Contract ($415,418.89 for the SCADA System at the
Cannel Water PIant located at 5484 E. 126m Street in Carmet, IN and $30,260.57 for
the wastewater g~ey project at the Carmet wastewater treatnent plant at 9609 River
Road for a total ofS445,679.46) in addition to S60,000.00 paid to Frakes En~ineering
located in Indi~apolis, i'4, the company which completed the SCADA System project
and other necessary. expenses such as attorney fees. Whfie this course is allowed, the
City is willing to reco~onize the benefit derived from the Contract with Data Link and
accordingly asked the Cannel Mtmicipal Utility, Manager, Mr. Jolm Dttffy, to determine
what costs restttted fore tl:e iaw's voiding of the Datalink contract.
Frakes Engineering provided to Mr. Dttffy a breakdown of its costs to finish the work
(copy attached). The cost breakdowna identifies $16,800.00 as a necessary cost directly
associated with Frakes' understanding of the slams of the Data Link SCADA project.
Only with fitis traderstanding could Frakes finish the project. In addition, the City
incurred legal fees in the arnotmt of $1,586.25 from Damn Pecar Nevanan and Klehnan
(invoice copy attached). Dann Pecar provided professional legal services initially by
isstffng a legal opinion as to the validity of the Data Link contract so ~at the City cotrid
respond to the Invoice (copy previously provided) and later by assisting the City during
ks deliberative process ~vhich resnlted from the Hamilton Cotmty Prosecntor's reqnest
that the City provide input on the amount of restitution which would be an issue should
lVIr. Johnson wish to enter a ~ilty plea.
In hindsi~t, it is di~ct*dt to say whether w4thout *die Data Link investigation a January
2, 1996 attdit of the U~ty Department in the amotmt of $4,067.00 would have been
undertaken. However, since such an action is a considered prudent business practice at
*die beginning of a new administcation, it is reasonable to treat such as a reasonable
expense absent the Data Link matter. A conservative es~nate of the ct~ent UtiLity
Manager' s time and that of the City attorney are approxLmately *d4rty~seven and one
half (37tA) hours and eij~teen (18) hotits respectively. These hours l~anslate into
$2,121.75 for the Utili.w Manager and $1,384.56 for the City Attorney. Ag~n however,
these Ciry employees are employed to handle whatever matters con~ont the City in
their respective capacities and therefore the City, is willLug not to consider tl~eir time
spent toward a restitution amotmt.
Accordinky, the total mnotm~ of requested restitution payable to the Carmet Mtmicipal
Utility is $18,386.25, the stun ofS16,800.00 referenced above as Frakes' cost to
understand ~e starts of *die SCADA System Project when it took over the project and
$1,586.25 in legal fees.
7~4
( Jmnes Guy Miller
L/president
March 21, 1996
FED, tG.~25.1494699
City of Carmel
Deborah Grisham, Esq.
One Civic Square
Carmel, IN 46032
Data Systems, Inc.
Client/Matter No.
invoice No.
invoice Cut-Off Date
: 12146/0001
112468
02/29/96
Fees and Expenses posted after cut-off
date will appear cn next statement.
Legal services rendered as follows:
Data Atty Hours D~scription of Work
02/01/96 RDS l.'Sg
02/02/96 RDS 0.50
02/05/96 JDC 0.75
02/06/96 JDC 2.50
02/07/96 JDC 2.00
02/08/96 JDC 2.00
02/0e/96 jDC 0.75
02/12/96 JDC 1.00
'Research conflict of interest statute;
review file.
Telephone conference with City atzcrney and
financial adviser; work on utility issues
including research.
Conference regarding conflict of interest
Issue; research same.
Research conflict of interest/self-dealing
!es~ee.
Research conflict of interest/self-dealing
issue.
Research conflict of interest/self-dealing
issue; prepare memorandum regarding same.
Work on memorandum regarding conflict of
interest/so!f-dealing; conference regarding
same.
Wcrk on memorandum regarding conflict of
interest/self-dealing.
Robert D. Swhier 2.00 Hrs at $100.00/hr. = $200.00
Joseph D. Calderon 9.00 Hrs. at $100.00/hr. = $900.00
Total Fees $!,100.00
Invoice # 112468
Page ~ 2
pensas Advan~ed-
.to Description
02/!5/96
02/23/96
Duplicating Expense
Duplicating Expense
Expense incurred 2/6/96 by J. Calderon for
copies of v~rjous cases and materials from
the Indiana Supreme Cour% Library.
Total Expenses
~aaunt
8.60
3.30
$11.90
Fees
Expenses
Carrent invoice Total
Total Amount Due
$1,!00.00
$Z!.90
$1,111.90
$1,111.90
Less Contract Discount (811.90)
TOTAL AMOUNT DUE $ 300.00
D~N PzcAs N~wMi'~ ~ ICLENAN
September 30, 1996
City of car~el
Deborah Grisham, Esq.
One Civic Square
Calmel, IN 46032
Data Systems, Inc.
Client/Matter No. : 12146/0001
Invoice No. : 117208
invoice Cut-Off Date : 09/30/96
Fees and Exlcenses posted after cut-off
date will appear on next statement.
Legal services rendered as follows:
Date Arty Hours
09/24/96 j'DC 1.75
09/24/96 RDS
09/26/96 RDS
09/27/96 RDS
Description of Work
Research remedy issue for void public
controls; conference regarding sane.
3.50 Prepare for end attend meetings regarding
contract matters with several officials in
Carmel.
1.50 Work on issues in preparation for Carmel
meeting; several telephone conferences.
2.00 Attendance at meetings in Carmel with
Council members and several other
officials.
Robert D. Swhier
Joseph D. Calderon
7.00 ~rs at $150,00/hr. = $1,050.00
1.75 Mrs at $135.00/hr. = $236.25
Total Fees
$1,286.25
EEl ACI'J
Invoice # 117208
Page # 2
SUMMARY
Fees
Expenses
Current Invoice Total
Total kmcunt Due
$1,286.25
So.co
$1,286.25
$1,286.25
PH (317) 571-Z443
CARMEL UTILITIES
ONE CIVIC SQUARE
P.O. BOX I399
CAII~MEL, INDIANA 46032
WATER UTILITY
WASTEWATER UTILITY
January lS, 1996
Mr. Dave Miller
Data Link Systems, Inc.
P.O. Box 5566
Peoria, illinois 61601
VIA CERTIFIED N-RETURN
RECEIPT REQ # P922480752
VIA FACSDI2[LE # 317- 571-2462
Dear Mr. Miller::
You are hereby directed, effective as of the date of this letter, to cease any further work
for the City of Camel Municipal Utilities.
Additionally, you are hereby directed to inform your sub-contractors or any other agents,
to cease any further work for the City of Carmel Municipal Utilities.
As of this time we believe you are in possession of some computer equipment that is
owned by the City of CarmeI. We would appreciate you returning this equipment and any
other items owned by the City immediately.
Sincerely,
John ~
Utility Manager
City of Carrnel
DEPARTMENT OF LAW
One Civic Square
Cannel, Indiana 46032
3 17-571-2472
Mr. Dave Miller
Data Link Systems, Inc.
P.O. Box 5566
Peoria, l]linois 61601
VIA CERTIlwlED MAIL-RETURN
RECENT REQ# Z 053 260 966
October 11, 1996
Dear Mr. Miller;
You are hereby notified that the City of Carmel has no choice but to comply with
Indiana law and deem the contract between the City of Cannel, Indiana and Data Link
Systems, Inc. void. (See McNav v. Town of Lowell, 41 Ind. App. 627, 84 N.E. 778
(1908); State v. Holovachka, 142 N.E.2d 593 (Ind. 1957); and Noble v. Davison, 177 Ind.
19, 96 N.E. 325 (1911)). Accordingly, the City of Carmel cannot by law pay invoice
#0980 in the amount of sixteen thousand thirty four dollars and 76/100 ($16,034.76).
Debra M. Grisham
City Attorney
CC2
Mayor Bra'mard
Clerk-Treasurer Cordray
Members of the Common Council
John Duffy, Utility Manager
SENDER:
k~ Complete ite~'s 1 and/or 2 for additional services, I also wish to receive the
aComplete items 3, 4~, and 4b. following services (for an
· P~nt your name and address on the reverse o~ {~is form so ~at we ~an return this B~F8 ~8e}:
permit.
aW~te'Return Receipt Requested' on the mailpiece below the a~icle numbe~ 2. ~ Restricted De[ive~
dativered. CoRSui{ postmaster for fee.
3. Anicre Addressed to: 4a. A~cle Number
D Registered "
~ RetumRe~ip/ferMerchandise D COD
7. Date of Detive~
5. Received ~y: (Print Name) 8. Addressee's Address (Only if requested
and fee is paid)
6. Signature: (Addlessee era nO
PS Fo~ 3811, December 1994
Domestic Return Receipt
Passed and Adopted this 18th day of November, 1996 by the Common Co eil of the City
of C el, i
johnsonresolution