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HomeMy WebLinkAboutMajestic Residence, Inc. STATEMENT OF RATIFICATION_ ~PPROVaD aS 10 ~OR~I a¥~--'/2 WHEREAS, on or about November 19, 2003, the City of Carmel, Indiana, by and through its City Attorney, and pursuant to City Code Section 2-9.1, tentatively entered into a Settlement Agreement ("Settlement Agreement") and Release regarding a matter between the City and Majestic Residence, Inc. then pending before the State Building Commission. A copy of the Settlement Agreement is attached hereto and marked as _Exhibit A_, and is incorporated herein by reference; and WHEREAS, due to the exigencies of time, the City Attorney requested the Mayor of the City to execute the Settlement Agreement on behalf of the City, and the Mayor did so; and WHEREAS, the Settlement Agreement was entered into by the Mayor on the City Attorney's recommendation and the execution of same was in the best interests of the City, and the Mayor's execution of the Settlement Agreement should therefore be ratified, approved and adopted as an action of this Board. NOW, THEREFORE, BE IT RESOLVED by the Board of Public Works and Safety of the City of Carmel, Indiana, as follows: 1. The foregoing Recitals are fully incorporated herein by this reference. 2. The Settlement Agreement and the Mayor's execution of same on behalf of the City are hereby ratified and approved and adopted as the actions of this Board. Approved and adopted this ,fo,/~ day of ~?~.~~ .,204 CARMEL BOARD OF PUBLIC WORKS AND SAFETY By: ~ames Brainard, Presiding O~ffi Date:_ Mary Ann Burke, Member Date: ~ori s.;Watson, ~ber Date: Date: Nov-ZO-ZO03 09:11a~ From-BURTON&S~LI~, eot an association 31T202~ZlO T-~9~ P.O0~/O06 F-Zg~ CO .NF.[ DENTIAL SET.TLEMENT-AGREEMENT AND RI~..LEASE Th_is Confidential Settlement Agreement madRelemse ("Agreement"), ber~veen the Majestic Residence, Inc. ("M~jestic") and the City of Cannel ("Carmel") provi.des:. , . Recitals A. Carmei issued building permit number Z001.0252 to Majestic onMarch 16, 2001 f°r the construction of a new home located at 9661 Prairiewood Way, CarmeI. Iadimaa (the "Ptojecf'). On Mm:eh 7, 2002, Carmel issued a Certificate of Occupancy fez the Project. In April 2003. the Project's owner cont~tcted Carmel' s inspectors to discuss poten~aal code wolanon concerns based on invest~.gations, ~'c~orts and docu~nents prepared by third peru:es. ~ter - = 'n~ addition~l enspecbons of the ptr0ect, Carrael issued a No, ce of Cor~ecuons FfNAL ORDER (the "Notice of · ,, · ' ' e usltemsthatwereviolationsoftheInflianaOne Corrections ) on May 30, 2003 ~denfifying hum re mad Two Family Dwelling Code. B. On ~hme 25, 2003, counsel for Majestic ismned a letter to the State Building Com~z~ission requesting review of the Notice of Corrections under Indiana Code § 22-13-2-7 (tho "Petition"). The State Building Commission is yet to issue a offing on the issue~ r~ised in Maje~fic's Petition. C. Majestic and Cmanel have engaged in settlement discussions for the purpose of reaching a resolution of all clairas and issues between the pafdes and so that they can avoidinotwzing additional amomeys' Ieee and costs associated with the Petition· NOW ~ ~ORE, for and in consideration of the obligations and promises recited below, the pafdes agree as follows; Agreem.en~ L Settlement Terms. On or before the end of business on November I7, 2003, counsel for Majestic and Cam~el shall contact the aflznirdstrafive law judge on zhis matter to advise him that before ~e Comrades'ion. On or tefo~ .No'~ ember l!g, 2003,~.~es~c shoal wi Cannel shall issue a notice to Majestic and counsel for the Project's owner reflecting that it is withdrawing the Notice of Correct~ons for the Project identi~ed herein, 2. Mutu~ I~eleases, Both proxies mutually release and forever discharge one another fzom any and all ¢Iairas they may have had or may have age. st one another relating in any way to, or which were, have be~m or could have been asserted in the Petition, the intention hereof being to release one maothe~ completely, absolutely and finally, from ail claims, ~ncluding claims for the recovery of a~tomeys' fees and costs, Iqo language contained in this Agreement, however, shM1 be Nov-~O-~O03 09:l~am From-BURTON&$~LIS, not ~n interpreted to relesse IVl~jestic or Cannel from liability for, or arising from, a br~ach of this Agreement nor sh~ it be interpreted to prenlude Cannel from p~viding testimony regarding the Project, any violations of the Indiana One and Two Family Dwelling Code or any other matter whatsoever. In addition, no langUage in th~s Agreement shall be interpreted to preclude Cannel or Maj~ti¢ from raising the same positions and defenses asserted in relation or response to the Petl.tl9n in any future mat,:er pending before the Commission, in a court of law or othenv/Se. Lsstiy, no language in this Agreement shall be Interpreted to preclude Cannel from: (a) issuing a future notice of corrections related to a different building peri,it issued for work performed at 9661 Prairiewood Way, Carmel, Iudiana or any other construction project wifl'fin Camael's jurisdiction or (b) exerc/sing its rights and obligations under Yndiuna Code § 36-7~9-1 et. seq. or CanneI's public health and safety ordinance. Attorneys' Fees a~d Costs, Each pm)' sh~fii pa:y i~s own ar. tomeys' fees and co~s associated with the negotiation and execution of this Agreement, Thereafter, in the event that a p~-ty defaults in his or its peffonmnce or observance of any of the terms, conditions or obligations contained in this Agreement, or in the event that either party has to employ attorneys to enforce any part of this Agreeraent, the prevailing pa~ty in any sanh action shall be entitled to recover from the other party all reasonable attorneys' fees and costs incurred/n connection therewith, including litigation, post-judgment proceedings, and uppers. 4. No Admission of Liability. The exe~utlen of this Agreement is not ~n any way to be construed or deemed an admission of wtongdeing or liability on the part of any party. It is also not an adm/ssion or acknowledgment of the merit or lack of merit of any party's claims in or defenses to the Petition or otherwise. 5. Entire Aereemeut. This instrument is an integrated agreement and it enntains and embodies the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, end supersedes all prior agreements andunderstandings, ora] er written, between the parties, relating to tht; subject matter of tl~s Agreement. 6. Mod/fication. Thls Agreement may not be amended, modified, superceded, canceled, renewed or extended and the terms and cond/tions herein shall be in full force and effect and cannot be waived except by written instrument signed by the part/es. 7. h~di~a L~w. This A~eem~t sh/ti in El respects k.,e Lute..'p, m~d, enforced and governed under the hws of the State of Indiana without giving affect to the conflict of law rules thereof. ~ufisdietion. No party to this Agreement shalI enmraenee any litigation or any other type of proceedings against the other party over a dispute ar/sing out of this Agreement or either party' s rights and obii gations hereunder, except in a State court located in Marion County, Indiana or the United States District Court in the Southern District of Indiana. Each party consents to and subjects itself to the jurisdiction of such courts for any dispute arising out of th~s Agreement. -2- Nov-~O-2OD3 Og:i2~m FFm-BURTON&SELIG, not ~n a~so~ist)on $1720~3210 T-Sg5 P,00~/086 F-~g~ 9. Seve~-ability. If any part, term or provision of this Agreement shall be deemed to be prohibited, invalid, or unenforceable by any applicable law, such a provision shall be replaced by a provision which eon~es a~ clme as possible to the intended result cf the invalid pmvisioa, and the economic pm-pose thereof, and which is valid and enforceable. The invalidity of any part, term or provision of this Age,cement sha~l not invalidate or affect the remaining parts, terms or provis~o.ns hereof and all such remaining parts, terms and pmvisiom shall remain in full force and effect 10. Confidentiaiitg. The Agreement and all of the terms and information contained herein, all of the negotiations leading to it, all of thc communications r~laled to it, and the implementation hereof (collectively, "Confidential Settlement Information"), shall be kept strictly confidential by Majestic and, shall not be disclosed by Majestic to any person, corporation or other entity not a signatory to the Agreement except: (a) in response to a judicial order compelling disclosure; Co) to a Court called upon to en/:orce the Agreement: or (c) othem'ise wibh the w~itten consent of'the duly ~mthorlzed representatives of Carmel. In the event that a litigant, court, or governmental body requests or purports to require disclosure of any Confidential Settlement Iu/ormafion, Majestic shall promptly g/ye written notice to Carmel as may be necessary. The Confidential Settien~ent Information shall be deemed to fall within the protection afforded compromises and offers to compromise by Rule 408 of the l~ederal Rules of Evidence and Rule 408 of the Indiana Rules of Evidence. 1L Execution.. This Agreement may be executed in count~rpart~, each of wMch shall be de~med an original, but all of which together shall constitute one and the same instrument, and thc parties may execute this Agreement by signi.ug any such counterpart. This Agreement may be executed by facsimile and any signature by facsimile shall be deemed to be an original slguature. 12. }cindy Written. This Agreement shall be deemed te have been written jointly bY the parties. Ambiguity shall not be construed against the interest of either party by reason of that having drafted all of, or any part of, this Agreement. 13. Acknowledgement. F~ch pa~ty expressly agrees and acknowledges that by signing this Agreement, the p~m:y represents and win-ants that: (a) the person signing is anukorized to execute this Agreement; Co) rite information famished in this Agreement is true and accurate; (c) the party has mad this entire Agreement and understands the terms and conditions, as well as the consequences of entering into this Agreement; (d) the party has knowingly and voluntarily entered into tl'ds Agreement; (e) the pm-ty has been represented by m'~ attorney in connection with c~.te,-Sng ,.'nt~o ~.is Agreement, or ha~ been given the opportan[ty to seek the advice of legal coumel before ~ ~o-nin g this Agreement and has been advised to employ its own attorneys in connection with reviewing and entering into this Agreement; and (f) this Agreement shall inure to the benefit of and be binding upon the parties, their reh~ted entities and affiliates, agents, representatives, shareholders, pa~tner~, principals, attorneys, advisers, parent corporations, subsidiaries, officers, directors, employees, predecessors, ~uccessors and assigns. IN WITNESS Wt~mP, EOP, the pan{~ have executed ~hi~ Ag~m~nt on the da~s ind~¢at~l by their r~spcetiw signatures. MAYSSTIC ~ENCE, INC. : Crr~ oF CA~L, ~¥ AND BOARD OF PUB~/C W_O~.? ANO SA~ffZ , · / ' president By: Member By: Member ~ov-20-2~03 09:11~$ From-~TON&SELiG, ~ot an a~sociation 31720Z~Z10 T-895 p.003/00E F-292 APPROVED AS TO FORM BY _~ CONFIDE~L SETT..LEMENy. AGREE _MENT AN]) This Confidential Settlement Agreement and Relemse CAgreement"), between the Majestic Residence, Inc. ('%it~estac") and the City of Carmel ( Carmel ) prov~.dos.. .. Recitals A. Carmel issued building permit number 2001.0252 to Majestic on lvlareh 16, 2001 for the construction of a new home located at 9661 Prairiewood Way, Camael, Indiana (the "Project"). On Ma~h 7, 2002, Carmel issued a Certificate of Occupancy for the Project. In April 2003, the Project's owner eont~.teted Carmel's inspectors to discuss potential code violation concerns based on investigatiorm, x-eports a~ud documents pr~par~,A by third part:es. After conducting additional inspections of the l:~,jeet, Caraxel issued a Notice of Con'eetion~-lEtNAL ORDER (the "Notice of Coarations") on May 30, 2003 identifying numerous items that were violations of the Indiana One and Two Family Dwelling Code. B. On ~lune 25, 2003, counsel for Majestic issued a letter To the State Building Commission requesting review of the Notice of Corrections under Indiana Code § 22-13-2-7 (the "Petition"). The State Building Commission is yet to issue a ruling on the issues ~aised in Majesd¢'s Petition. C. Majestic and Carmel have engaged in settlement discussions for the purpose of reaching a resolution of all claims and issues between the parties and so that they can avoidinoumng additional attorneys' gees and costs associated with the Petition. NOW ~ FORE, for and in consideration of the obligations and promises recited below, the parries agzee a~ follows: Agreement l. Settl.e~uent Tem!.~. On ct before the and ofbusiness on November 17, 2003, ooonsel for Majestic and Carmel shall contact the administrative law judge on this matter ~o advise him that the ~,,tae~ h~ve ~e~ed a rese~u~on and tha~ the ~,tition she~. a befoz',~, the Com=dssion. On or befo~ I'~ovamber 1~; 2003, b:~es~ac ~hell wlth~aw me retiuon Carmel shall issue a notice to Majestic and counsel for the Project's owner reflecting that it is withdrawing the Notice of Corrections for the Project identified herein. 2. Mutua! Releases, Both parties mutually release and for~ver discharge one another from any and all elairra they may have had or may have against one another reladng in any wayto, or which were, have bet:n or could have been asserted in the Petition, the intention hereof being to release one another completely, absolutely mad finally, from ail claims, iueluding claims for the recovery of attorneys' fees and costs, No language contained in this Agreement, however, shall be ~ov-ZO-ZO0~ ~g:l~am ~Fom-BURTO~&SELiG, not an ~soci~tion 9172~g~10 T-Bg§ p.~04/006 F-Zg~ interpreted m ~clesse Majestic o~ Cannel from liab/liW far, or arising from, a breach of tkls Agreement nor shall it be interpreted to p~eclude Cannel from p~oviding tcsthnony re/~:ding the Pwject, any violations of thc Indiana One and Two Family Dwcllin§ Code or any other matter whatsoever, In acldid~n, no langua§c in this A~cement shall b~ int~3~mted to prcclud~ Carmel or Majestic from rating thc same positions and defans~ asserted in relation ~r response to the Peti.tign in any futm'e matter pending before the Commission, in a court of law or otherwise. Lastly, no language in thin Agreement shall be interpreted to pmclurle Cannel from: (a) issuing a futura notice of corrections relatcc[ to a different building permit issued for work performed at 9661 Prairicwood Way, Cannel,Iudian~ or any erbar cor~truction project witl~n Camaal's jurisdiction or (b) exercising its rights and obligafi oas under Indiana Code § 36-7-9-1 et. seq. or Carmel's public health and safety ordinancc,,'t. 3. Attorneys! Fees mid C.q~ts~ Each P~¢.' shall pay its own attorneys' fees md costs associated with the negmialion an d execution of this Agreement. Thereafter, in ti~ event that a party defaults in his or its ix~formauce or observance of any of the terms, conditions or obligations contained in tlfis Agreement, or in the event that either party has m employ attcrmeys to enforce any part of this Agreement, .the prevailing party in any such action shall be entitled to reeov~r from the other party all reasonable attorneys' fees a~d costs incurred in connection therewith, including litigation, post-judgment proceedings, md appes, ls. 4. o~~. The exe~utinu of th/s Agreement is not in any way to be comtrned er deemed an admission of wrongdoing or liability on the pm of any party. It is al~o not an admission or acknowledgment of the merit or lack of merit of any party's claims in or defansas to thc Petition or otherwise. $. Entire ~t. This instrument i~ an integrated agreement and it contains and mmbodies the entire agreement and understanding of the parties with ~espeet to the subject matter of this Agreemeat~ and supersedes all p~ior agreements and understandings, oral or wri~en, between the pa~ties, relating to tht~ subject matter of this Agreement. 6. Modification. Thls Agreement may not be amended, modified, supereeded, canceled, renewed or extended and the terms and ¢onditlon~ h~r~in shall be in full force and effect and cannot be waived except by written instrument signed b~ the pm'des. 7. Indi~a L~w. This A~eemcnt sh~_ll in all ~spects be interpreted, ',2.nforeed an¢t governed under the laws of the State of Indiana without giving affect to the conflict of law thexeof. g. Jurisdiction. No patty to this Agreement shall commence any litigation or any °thor typ~ of proceedings against the other pray over a disput~ arising out of this Agreement or either party' s fights and obli gations hereunder, except in a State court locat~dia Marion County, Indiana or the United States District Court in the Southern District of Indiana. Each party consents to and subjects itself to the jurisdiction of sach courts for a~y dispute arising out of this Agreement. 9. Saver~tbillty. If any part, terra or provision of this Agreement shall be deemed to be prohibite~, invalid, or unenforceable by any applicable law, such a provision shall be replaced by a provision which coatea as close as possible to the intemded reanlt of tho invalid provision, and the economic purpose thereof, and which is valid and enfow, eable. The invalidity of any part, term or provision of this Agreement shall not invalidate or affect the remaining parts, terms or provisi?s hereof and all such remaining para, terms and provisions shall remain in full force and effect. 10. Confidenfislitx.. The Agreement and ~ of the terms ~ idormation contained herein, all of the ~egotiations leading to it, all of the ,ommunications related to it, and the · . ,, ' t Irfformation", shall be kept strietiy intplementauon hereof (collectively, Confidauual Set~lemen ) confidential by Majestic and, shall not ~ disclosed by Majestic to any person, corporation or other entity nOt a signatory to the Agreement except: (a) in respOnse to a jutreial order compelling disclosure; (b) to a CoUrt called upon to en~2oree the Agreement; or (e) othemrse witch the written consent of'the duly authorized representatives of Carmel. In the event that a litigant, court, or governmental bociy requests or purports to require disclosure of any Confidential Settlement Informal~on, Majestic shall promptly give written notice to Carmel as may be neeassary. The Confidential Settlement Information shall be deemed to fall within the protection affordad compromises and offers to eomlxomise by Rule 408 of the l%derai Rules of~'videnee and Rule 408 of the Incliana Pules of Evidence. 1L Eg.emfion' This Agreemant may be execetedin counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and the parties may execute this Agreement by sign~g any such ceunterpaxt. This Agreement may be executer[ by facsimile and any signature by facsimile shall he deemed to be an original signature. 12. loinfly W_ritten. This Agreement shall be deemed m have been written jointly bY the parties. Ambiguity slmll not be construed against the interest of either party by reason of that parry having drafted all of, or any part of, this Agreement. 13. Ackncnvladge. men_t. F. aeh party expressly agrees and acknowledges that by signing this Agreement, the pJmy represents and warrants that: (a) the pemon signing is authorized to execute this Agreement; (b) the information furnished in this Agreement is tree and accurate; (e) the pan3' has read tiffs entire Agreement and understands the terms and conditions, as well as the eunsequences of entering into this Agreement; (d) the party has knowingly and voluntarily entered into th~s Agreement; (e) the pray has been ~elorcsented by ma attorney in eanne~do~- witi', ente~ng into tl~s Agreement, or has been given the opportunity to seek the advice of legal eounseI before signing this Agreement and has been advised to employ its own attorneys in connection with reviewing and entering into this Agreement; and (0 tltis Agreement shall inure to the benefit of and be binding upon the parties, their related entities and affiliates, agents, representatives, shareholders, parmexs, principals, attorneys, advisors, paren~ ~orporatiens, subsidiaries, officers, directors, employees, predecessors, successors and assigns. ~ ~SS Vq~IEP. EOF, the parties have cx¢cu~ecl this Agreement on the da~es indicated by their ~e~pective signatures,