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HomeMy WebLinkAboutC-263 SW Clay, As Amended, Settlement Agreement20050006~461 Sponsor: Councilors Kirby, Mayo and Sharp AN ORDINANCE AMENDING, ORDINANCE NO~ C-263, AN'ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, ANNEXINGCERTAIN TERRITORY TO THE CITY OF CARMEL, INDIANA, PLACING THE SAME WITHIN THE COPRORATE BOUNDARIES THEREOF AND MAKING THE SAME A PART'OF THE CITY OF CARMEL WHEREAS, the City of Carmel ("City") has adopted Ordinance No. C-263 attempting to annex territory in Southwest Clay Township tothe City; and ' WHEREAS, a copy of.Ordinance C-263 az originally adopted is 'attached hereto as Exhibit A; and · WHEREAS, a remonstrance ha~ been filed to Ordinance C-263 which is pendir/g in Hamilton Superior Court as Cause No. 29D03-0502-MI- 188 (the "Remonstrance"); and WHEREAS, this Council has negotiated a settlement with the leaders of the remonstrance effort, which settiement is attached hereto as Exhibit B; and WHEREAS, this Council has determined that the terms of Ordinance C-263 should be amended to reflect the commitments and obligations set forth in Exhibit B. NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, Indiana, as follows: This Amendment to Ordinance C-263 shall only take effect upon the issuance by the Court in the Remonstrance of a final order no longer subject to appeal affirming Ordinance C-263 as Amended by this Amendment. Unless and until such an Order is issued, Ordinance C-263 shall continue to be in force and effect as originally enacted. The effective date of the annexation provided by Ordinance C-263 shall be 3 years following the date of the Order of the Court described in Paragraph l of this Ordinance. 3. A tax aoatement program for the annexation territory subject to Ordinance C-263 shall be established, whereby 75% of the property taxes for municipal purposes shall abated in the first year folloxving the effective date of the 9nnexation, 50% of the property taxes for municipal purposes shall be abated in the second year following the effective date of the annexation and 25% of the property taxes for municipal pu~rposes shall be abated in the third year following the effective date of the am~exation. 2005o0068461 Fil~-d toe R~-cocd in NAI'IILTON COUNIY~ INDIANA JENNIFER J NAYOEN 10-18-2005 At: 10:04 ara. ORDINANCE 54.00 VERSION A - October 5, 2005 To the extent the provisions of either Ordinance C-263 as originally enacted or the fiscal plan (the "Fiscal Plan") adopted by Resolution Nol 06-21-24-03 are expressly modified by Attachment B, Ordinance C-263 and the Fiscal Plan are hereby amended. Otherwise, the provisions of Ordinance C-263 and the Fiscal Plan shall remain in effect as originally adopted. The financial analysis and projections which were adopted as part of the Fiscal Plan by Resolution No. 06-21-04-03 (pages I through 16 of 16, later revised as of July 22, 2004, pages 1 through 15 of 15) shall be hereby .deleted and replaced with the financial projectious and analysis attached hereto as Exhibit C. Exhibit B was executed by Councilor Kirby in his capacity as President Pro Tempore and by Councilor Carter in bis capacity as Councilor. To the extent the signatures affixed thereto reflect other~vise, they are hereby amended to reflect this change. 7. Exhibits A, B and C are hereby incorporated by reference. Pursuant to Ind. Code § 36-1- 5-4, two copies of these exhibits are to be on file with the Office of the Clerk-Treasurer for public inspection. PASSED by the Common Council of the City of Carmel, Indiana this day of 0(2~-_)L ,2005, by a vote of ~ ayes and CD .nays. VERSION A - October 5, 2005 - 2 - COMMON COUNCIL FOR THE CITY OF CARMEL ,~D. Mayo, District 3 .MarkRal~ nn~ Richard L. Sharp, Di~rict I ATTEST: Diana urer Presented by me to the Mayor of the City of Carmel, Indiana this day of ~)~gt. 2005, Diana L. Cordray, IAMC, Clerk-T/r~surer Xpproved by me, Mayor of the City of Ca~el, indiana, this ~ day of ~ 2005, d/James Brainard, Mayor ATTEST: Dia[a~L. Cordray, I~AMC, Clerk-Tre~urer Prepared by: Nicholas K. Kile Barnes & Thomburg I I South Meridian S~reet Indianapolis, Indiana 46204 VERSION A - October 5, 2005 - 3 - SETTLEMENT AGREEMENT CONCERNINC CARMEL CITY ORDINANCE NO. C-263 This Settlement Agreement ("Agreement") is made and entered into by and between: (1) The City of Cannel, indiana, fine Mayor o£ the City of' Carmel, indiana, and the City Council the City of Carmel, Indiana (collectively the "City") and (2.) No Ordinance for Annexation ("NOAX') and tts members (collectively, "NOAX') on this ~"~' day o fs.~O'?~., 2005; . ~,-.~ .R. EC1TALS - ~C Whereas, the Carmel City Council published Annexation Ordinance No. C-263 ("Ordinance") on November 26, 2004; Whereas, NOAX is an unincorporated association comprised of several hundred owners of land located in the area to be annexed pursuant to the Ordinance ("Annexarioo Area" or "Annexation Territory"); Whereas, NOAX is governed by a board made up of various homeowners association presidents and officers as well as other community leaders; Whereas, NOAX and its board have'organized ~nd led the effort to oppose Ordinance C- 263, which has resulted in the filing of a remonstrance which is pending in Hamilton Superior Court as Canse No. 29D03-0502-Ml-188 (the "Remonstrance"); Whereas, the City and NOAX desire to settle their differences and disputes concerning the Remonstrance and the Ordinance in order to avoid the expense, burden, and inconvenie~lce of' litigation; Whereas, by the execution of tbis Agreement by the City Mayor and by the majority of tine members of the City Council, the City represents that this Agreement bas been lawfully approved by the Mayor and the Council. AGREEMENT In consideration of the Recitals and terms set forth, the City and NOAX agree as fbllows: 1. Passage and Adoption of an Amendment to the Ordinance. The Carmel City Council shall pass and the City Mayor shall execute an amendment to the Ordinance (hereinaf'ter the "Amendment"). The Amendment shall provide as follows: The Amendment shall be effective only upon satisfaction o[' the conditions set forth in Paragraph 3 herein. The effective date of the annexation shall be three years Following the date of the order provided in ?aragraph 3 herein. A tax abatement program For the Annexation Territory shall be established, whereby 75% of the property taxes for municipal purposes shall be abated in the first year follow/hg the effective date of the annexation, 50% in the second year, and 25% in the third year. In tile fiscal plan adopted by Carmel, Carmel has projected to invest $40 million in road improvements in the Annexation Territory. Within ninety (90) days of the Effective Date of this Agreement or January I, 2006, whichever is last to occur, Carmel shall initiate a process by which' the existing Comprehensive and Thoroughfare Plan For the Annexation Territory will be made available for review and revision as necessary and advisable. 3Public meetings will be held in the Annexation Territory for inpnt, prior to any changes being made to this plan, NOAX and Carmel tmderstand and agree that' until the annexation is effective, ail improvements to roads and streets are subject to Hamilton County approval. Subject to any necessary Hamilton Cotmly app[ovall Canhel will commit up to $40 million to the improvemem of intersections and resurfacing of all roads in the Annexation Territory as needed to bring. them up to the standards within the Carmel limits over a period of six years alter the Effective Date of this Agreement. With the changes provided herein, it is no longer estimated that the entire $40 millinn will be required for road improvements, Intersection improvements at 106th & Shelbome Road, 96Ih & Towne Rd, 106th & Springmil[ Road, and 96th & Springmill Road, will take priority over ail other projects, with the first intersection improvement being initiated within 90 days of the Effective Date of this agreement. For purposes of this paragraph, initiation of the improvement shall commence with the preparation of engineering plans and not the commencement of actual construction. These intersection improvements shall be coordinated pursuant to a traffic management plan that is reasonable and consistent with good engineering practice so that traffic will properly flow through the Annexation Terrilory while the improvements are being completed. No decision to build or expand any road in the Annexation Territory other than Illinois Street or Commerce Drive from its current size or character will be made prior to January, 2012, which is when those persons elected at the first municipal election when registered voters in the Annexation Territory ore permitted to vote will assume office. This last sentence: (l) shall not prohibit Carmel from accepting roads that are dedicated to Carmel by a developer; and (2) shall not app!y to the addition of a tutoring lane which may be required by the City of Carmel with respect to a new development or new construction "Collector Roads" for purposes of this Agreement shall mean in the Annexation Territory: Springmill Road, Ditch Road, Shelbome Road, Towne Road (all of the previous north-south roads from tile southern edge th , th , of 116 .Sthtreet ngbt-of-wa~hto the southern edge of'the 96 Street right-of- way), 96 .Street, and 106 Street. As a main feature of Collector Road improvements, Carmel will install bicycle paths on both sides of Collector Roads in the Annexation Terrilory, depending upon topograplW and tlie amount of available right-of-way. A homeowners' association (that is recognized as a tax exempt organization under Section 528(c) of the Internal Revenue Code) itl the Annexation Territory may request that Cannel vacate the streets in its subdivision, and Carmel will'vacate such streets a single time. For those subdivisions in the Annexation Territory ti'mt do not have such a homeowner's association, the request may be made by petition of a majority of the homeowners in the subdivision. Street lights at Towne Road intersections 106th and 116~;h, and Ditch Road intersections 116°' and 96th, shall be replaced with lights similm; to ibose at the roundabout at 136m and Springmi~l Road. Cam~el will redistrict its council dislricts prior to the first muuicipal election following the effective date of the annexation, and in so doing, the territory bounded by US 31 to the East, I16tt' Street to Ibc Ncnb, tile Boone County line to the West and 96th Street to the South, will not be divided (although it may be ineladed with other territory as a part of a larger district). It is Carmel's intention that until the review and revision as necessary and advisable of the Comprehensive and Tboroughfare Plan is completed, no cbanges should be made in the Anfiexation Territory that will create a housing density of greater than one unit per acre and that no changes in the zoning district for property in tlie Annexation Territory outside of the commercial corridor along t,he Mmlngan Road dlstr~c (collechvely "Zoning Changes") should be made. it is further Carmel's objeclive that, prior to the assumption of ~/ffice by the officers elected at the first municipal elections where/voters in the Annexation Ten'itory are permitted to vote, Zoning C]~gnges in the Annexation Territory slloald not be permitted. Carmel ,.gill fulfill its legal obligation to give consideration to any properly submitted request for a Zoning Change, but Carmel als6 recognizes that Zoning Changes in the Annexation Territory · would, in general, not be in the public interest prior to the time when the review and revision of the Comprehensive and Thoroughfare Plan has been completed and voters in the Annexation Territory have representation on the Council. Commensurate with ~h,~ expiration of term oF the current member of tbe Carmel Ptan Commission appointed by the Mayor whose term expires first, the Mayor will appoint to the Carmel Plan Commission one member who resides in the Annexation Territory. A resident of the Annexation Territory shah continue to serve on the Plan Commission at least until the election of' a council member from the new district incorporating the Annexation Territory. Carmel will develop a master drainage plan within 2 years of the EIY¢ctive Date of this Agreement to address and correct drainag~ problems in all of the Annexation Territory. Carmel will cause engineering plans to be drown and complete construction and implementation thereof for the drainage issues in Larkspur, Walnut Creek, Kings Mill, Bridleborne, Windemere, Crooked Stick, and Crooked Stick West within five (5) years of the Effective Date of this Agreement, and within 7 years For the remainder of the Annexation Territory. The cost of these improvements shall be fimded with the funds allocated to road improvements in Carmel's fiscal plan that are not needed for the road improvements provided in Subparagraph (d) herein. It is Carmel's practice and desire to bury electric service and other overhead lines wherever possible throughout tile ex/sting City limits. Carmel will work diligently with ~he electric service provider to bury power lines in the Annexation Territory where practical, alTordable and feasible, recognizing that the decision to bury such lines lies ultimately outside Caramel's control. To the exteat practical, affordable and feasible, Carmel may dedicate some of the funds .that would otherwise bave been dedicated to road improvements under the fiscal plan to the burying of such lines. All other provisions of the Ordinance and the fiscal plan for the Annexation Territory shall remain the same except as to tile extent ~xpressly modified herein, particularly with respect to roads (Subparagraphs d., 1., and m. herein). 2. City's Payment for NOAX's Reasonable Costs and Attorneys' Fees. The City shall rehnburse NOAX for the actual costs and attorneys' fees it incurred related to tbis matter and the settlement reached by the parties, not to exceed $50,000.00. Said payment will be ~nade within 60 days after the Court's ruling in Paragraph 3. 3. Conditions. The Amendment in Paragraph I shall not take effect unless and until the Cm~rt hearing the Remonstrance issues a final order no longer subject to appeal affirming the Ordinance as amended by the Amendment and approves the terms of this Settlement. If this conciition is not satisfied, then the amendment detailed in Paragraph I herein si~all be of oo effect, the stipulation provided in Paragraph 4 herein shall be vacated, Cannel shall not be obligated to reimburse NOAX's fees pursuant to Paragraph 2 herein, and tbe parties shall be rettm~ed to their respective positions in the Remonstrance prior to eutering this Settlement Agreement. The Effective Date of this Agreement shall ba the date tlnat the Conditions in this Paragraph have been satisfied. 4 Stipulation. Subject to tile conditions in Paragraph 3, Cannel and counsel for the remonstrators in the Remonstrance on behalf of NOAX shall submit the Amendment to the Court in the Remonstrance; and NOAX, its counsel, and its members shall not contest the following, even if landowners in the Annexation Territory appear at the Remonstrance hearing to contesl tine Annexation: Sixty (60) percent of'the Annexation Territory is subdivided; The Annexation Territory is contiguous to the Carmel cerporate limits; Carmel's fiscal plan as amended herein for the Annexation Territory satisfies the requirements of [nd. Code § 36-4-3-13(d); Ordinance No. C-263 as amended is in the best interest of' owners of land in the Annexation Territory; and Fewer than 65% of owners of land in ti~e Annexation Territory and the owners of less than 75% of assessed valuation in tl~e Annexation Territory are opposed to tbe annexation under Ordinance No. C-263 as amended. i'n lhe absence et' opposition presented by some other landowner or ]andowne~'s from the Annexation Territory at the Remonstrance hearing, NOAX and Carmel shall also stipulate to these above matters. 5. Breach~ Enforcement of Remedies. It is understood by the City and NOAX that each party'shall have the right to institute and prosecute any proceeding, at ]aw or in equity, against any otber 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 conrt of competent jurisd[ction an injnnetion 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 aoy and all legal costs, charges, and attorneys' fees reasonably incurred in enforcing such obligation. 6. Acknowledgement of Parties, Each party hereto acknowledges, covenants, and agrees that it has read this Agreement, that it understands its terms including dm teg¢l consequences thereof, and that in offering to make, and in making, executing and delivering this Agreement, it was not acting under any duress, undue inflt~ence, misapprehension, or misrepresentation by any party hereto, or any agent, attorney ar other representalive of any party and that this Agreement was made, executed, and delivered as a free and voluntary act. 7. F~nlive Agreement:, Reliance~ Binding Effect. This Agreement represents a complete and total integration of the agreement of the parties bereto and supersedes all prior or · contemporan~'ous written or oral agreements relating to this subject matter. The parties hereto agree th~{t 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 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, or other representatives. Authority and Representations. a The undersigned persons executing this Agreement on behalfot'lhe part/es hereto each represent that he/she is f~lly empowered to execute this Agreement in the capacity shown below and that all necessary aclion for the making of this Agreement has been taken and done. It is understood by beth parties that empowerment of the.signatories for NOAX must' be granted such cmp0wennent by the receipt of signatures set forth in Paragraph 8.b.3. responding to the request for empowen'nent by NOAX. b NOAX Representations: By executing this Settlement Agreement, the officers of NOAX represent lhe following: The officers of NOAX' have executed this Agreement, pursuant solely to the authority granted to them by vote of the Executive Board of NOAX. Such execution does not represent any grant of authority from the collective Remonstrating Petitioners in the action which is pending in Hamilton Superior Court as Cause No. 29D03- 0502-MI-188. The officers of NOAX agree to use their efforts, for a period of ninety (90) days from the execution of this Agreement, to seek the approval of this Agreement by the remonstrating petitioners and other owners of land in tile Southwes! Clay Annexation Area. The officers of NOAX agree to submit this. Agreement to the Conrt for its approval at Ihe end of the ninety (90) day period if the officers of NOAX have obtained the signatures from 50% plus' 1 (one) (a simple majority) of landowners in the Annexation Territory who have returned a ballot in that time that indicates their desire to accept this Agreement and to not oppose the annexation pursuant to Ordinance C-263 as amended pursuant to the Amendment. Cannel Representations: By executing this Settlement Agreement, Carmel represents the follow!ng: Carmel will be bound by the reruns of this Settlement Agreement and may not revoke its ~onsent to this Settlement Agreement unless, within ninety (90) days after the date of execution here,5?, the officers o?NOAX refuse to submit this Settlement Agreement to the Hamilton Superior for its approval. The parties specifically recognize that a deels[on in the action entitled Certcth, Home Place Territory Landowners v City of Carmel, h~dl'ana, Hamilton Superior Court, Cause No. 29D03-0502-M[-169 may impact the issues in the action between the parties, but the Agreement of the part/es entered into herein shall not be impacted and does not constitute a basis for either party to breach tile terms of this Agreement. Carmel agrees that it will defend and indemnify the officers of NOAX (identified on Attachment A here'~o) against any claim or loss, in the event that any of the remonstrating petitioners or other land owners in the Southwest Clay Annexation Territory institutes a personal legal action against those officers by reason ef the officers' pursuit oF this Agreement. 9. Fire Contrael. During the three year period under which armexation is delayed pursuant to tile Amendment, Carmel agrees that it will not change either the methodology o? computing Clay Township's allocation o:[' costs in the Contract for Fire Protection Between Carntel and Clay Township (the "Fire Contract") or the types of costs which are allocated to fire service ['or purposes of the Fire Contract. 10. Counterparts: This Agreement may be executed in counterparts, each oFwhich shall be deemed an original, and each subsequent counterpart shall together constitute but one in tile same instrument. 11. Miscellaneous: The parties agree to never contest the validity or enforceability oF Ihis Agreement"s provisions. This Agreement and its terms shall be interpreted under the laws of the State of indiana. When applicable, use of the singular form of any word shall mean or apply to the plural, and the neuter form shall mean or apply to the feminine or masculine. The captions and headings appearing in this Agreement are inserted only as a matter of convenience and are nm intended to define, limit, construe, or describe the scope or intent of such provisions. Time is of the essence regarding this Agreement. 12. 'Non-Waiver of Rights. No failure by any party hereto to enforce, on one or more occasions, any term er provision hereofshall be effective unless in writing, nor operate as a later waiver of any right or remedy. 13. Modification. No change or modification of this Agreement shall be valid unless the same is in writing and duly executed by all the parties hereto, or their duly authorized successors and assigns. 14. Severahili .ry. The invalidity of'. any provision(s) contained in this Agreement stm[[ not 9perate to cause any remaining provisions to be deemed invalid, provided that, the terms and obligations of the parties and the Agreement itself still ret3ect the parties' intent. IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and date first written above. CITY OF CARMEL ~edfick J. ~ , Mark~ any~  Richard ~. Sharp ,~7 /1 No Ordi~e fo¢~exation ~/a NOAX ~ Unigco~or~ Association of Progeny Ownem in the ~nnexation TerfiIoU By: Stephen R. Buschmann, Counsel }'or NOAX Prepared b~ Nicholas K. Kilc 11 South Meridian Strecl lndlmmp~lls. Indiana 46204 CITY OF CARMEL Net Impaet~ SW CLAY Ann®xatlon Revised Seplember 15, 2005 [DRAFT1 (399,042) $ 1,240,801 $ 3,743190 $ 6,287,170 (17,314) 51144 I46,575 233,882 {327) (327) (327) 1327} 475 (166) 2,395,656 3,388,149 (416,207) 1,291,452 61285,0~4 9~908,875 {4,149;796) (4,317,255} (4.486,120) (1,255) (5,988) (23,613) (31,018) {12551 (5,988} (23~613) 131,018) (417,462) (2,864,332) 1,944,226 5,391,737 371,734 405,544 863,833 942,399 583,051 605,790 62g,418 415,516 530.795 560,532 587,128 282.637 297.038 312,206 369,788 (1,062,305) 4,271.419 7,862,886 Pagelof2 EXPENDITURES GENERAL FUND: 3,555,429 3,555,42g 3,555,429 106,493 110,646 115,073 115,753 120,268 125,078 168074 174,629 181,613 222.246 230,914 240,151 1,777,714 5,310,481 5,378,928 5,451,867 371,774 405,544 863,833 942,399 4~4,227 1~126,012 1,169.928 1,216,725 282,637 297,038 312,2(~ 2,553,675 7,124.674 7,709,727 7,923,197 (2,183,887) [8 186,979) (3,438,3071 (60,311) 1,501,955 4,378,004 5,865,170 6,852,452 15266,562 14,584.630 10775.655 13,202,517 $ 14,584,§30 $ 10,775.655 $ 13202,517 $ 19,994,658 Page2ol2 o o