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HomeMy WebLinkAbout1-SB-2013 STATE OF INDIANA BEFORE THE CITY OF JEFFERSONVILLE SANITARY BOARD RESOLUTION NO.. »' -2013 A RESOLUTION AUTHORIZING THE TRANSFER OF CERTAIN REAL PROPERTY FROM THE CITY OF JEFFERSONVILLE TO THE JEFFERSONVILLE SANITARY BOARD AND APPROVING A SETTLEMENT AGREEMENT IN CONNECTION WITH THE ACQUISITION OF 217 and 219 WEST MAPLE STREET WHEREAS, the City of Jeffersonville Sanitary Board (hereinafter the "Sanitary Board ") has been established pursuant to the provisions of IND. CODE § 36- 9 -23 -4; and, WHEREAS, the Sanitary Board, in reliance upon the professional advice of the City Engineer and its professional consulting engineers, has determined that the City of Jeffersonville (the "City ") needs to acquire the entirety of certain parcels of real estate owned by Gary R. Speth, Sr. ( "Speth "), located at the commonly known addresses of 217 and 219 West Maple Street, Jeffersonville, Clark County, Indiana (the "Speth Property "), for use in constructing, operating, and maintaining a sanitary sewer pipe to alleviate combined sewer overflows ( "CSOs ") pursuant to the provisions of an amended consent decree between the City and the United States Environmental Protection Agency (the "Project "); and, WHEREAS, on May 20, 2011, the Sanitary Board extended an offer to purchase the Real Estate from the Speth for a purchase price equal to its appraised value of $25,900.00 (the "Offer "); and, WHEREAS, on December 1, 2011, the Sanitary Board filed a complaint in the Clark Circuit Court as Case No. 10001- 1112 -PL- 000120 seeking to acquire the Speth property needed for the Project (the "Litigation "); and, 1 WHEREAS, pursuant to the terms of the draft conditional settlement agreement attached hereto as Exhibit "A" (the "Settlement Agreement "), Speth has agreed to conclude the Litigation by accepting the Offer, provided that the Sanitary Board agrees to pay the sum of $34,000.00 plus the conveyance by exchange of certain real property owned by the City valued at $2,800 and located at an unassigned address on Meigs Avenue that is more particularly described in attached Exhibit "B ", and which further is more particularly depicted as Tract 1 in the drawing attached as Exhibit "C" (the "Exchange Property "); and, WHEREAS, the title to the Exchange Property is currently held in the name of the City of Jeffersonville and the provisions of IND. CODE § 36- 1 -11 -8 permits the Common Council of the City of Jeffersonville (the "City Council ") to transfer property to another governmental entity upon terms and conditions agreed upon by the entities (including, without limitation, the payment of any amount of cash as agreed upon) as evidenced by adoption of a substantially identical resolution by each entity; and WHEREAS, the Sanitary Board has requested that the title to the Exchange Property be transferred from the City of Jeffersonville to the Sanitary Board so that the Sanitary Board may convey the Exchange Property to Speth, pursuant to the terms of the Settlement Agreement, and in accordance with the provisions of IND. CODE § 36- 1 -11 -9 without compliance with the provisions of IND. CODE § 36- 1 -11 -7; and, WHEREAS, the Sanitary Board now adopts this resolution for the purpose of authorizing the transfer of title to the Exchange Property from the City of Jeffersonville to the Sanitary Board in accordance with IND. CODE § 36- 1 -11 -8 so that the Sanitary Board may complete the acquisition of the Speth Property pursuant to the Settlement Agreement. 2 NOW, THEREFORE, BE IT RESOLVED by the Sanitary Board as follows: 1. Approval of Transfer of Exchange Property and Settlement Agreement. The Sanitary Board hereby (i) authorizes and /or consents to the transfer of title to the Exchange Property from the City of Jeffersonville to the Sanitary Board in accordance with IND. CODE § 36- 1 -11 -8 and (ii) authorizes the compromise and settlement of the Litigation on the terms and conditions of the Settlement Agreement attached hereto as Exhibit "B," including without limitation, the transfer of the Exchange Property from the Sanitary Board to Speth in consideration for a reduction of the purchase price to be paid by the Sanitary Board from $36,800.00 to $34,000.00. 2. Effective Date of Resolution. This Resolution shall be in full force and effect upon its passage and promulgation as evidenced by the signature of the undersigned as the duly authorized officer and representative of the Sanitary Board pursuant to the affirmative vote of a majority of the duly appointed and serving members of this Sanitary Board. `C� So Resolved this flay of � d r , 2013. SANITARY BO ' ►, OF THE CITY OF JEFFERSON IL ■ NDIANA By: Michael G Moore, Mayor and Chairman Attested by: Secretary of the Board 3 • • EXHIBIT A IN THE CIRCUIT COURT NO. 1 OF CLARK COUNTY STATE OF INDIANA CITY OF JEFFERSONVILLE, INDIANA, FOR THE USE AND BENEFIT OF THE JEFFERSONVILLE SANITARY BOARD, Plaintiff, v. Case No. 10001- 1112 -PL -120 GARY R. SPETH, SR., AND MAINSOURCE BANK (F /K/A INDEPENDENCE BANK), Defendants. SETTLEMENT AGREEMENT AND ORDER OF APPROVAL Comes now plaintiff, City of Jeffersonville, Indiana, for the use and benefit of the Jeffersonville Sanitary Board (hereinafter the "City "), by counsel, Amy J. Burnette, and further come now defendant, Gary R. Speth, Sr. (hereinafter referred to as "Speth "), by and through counsel, Ronald D. Culler, and advise the court that they have agreed to fully settle and compromise the claims raised by the Complaint For Acquisition Of Real Property filed by the City herein on the following terms and conditions: 1. The parties shall use their best efforts to close the City's purchase of Speth's real property located at the commonly known addresses of 217 West Maple Street and 219 W. Maple Street, Jeffersonville, Clark County, Indiana (the "Real Estate "), on the terms and conditions set forth herein within forty -five (45) days following the court's review and approval of this Settlement Agreement (the "Closing "), which real estate is more particularly described as follows: 217 West Maple Street, Jeffersonville, Indiana Being Twenty -six and one -half (26 -1/2) feet in width off the east side of Lot No. 182 in the City of Jeffersonville, Clark County, Indiana, fronting on Maple Street and extending back southwardly to an alley. 219 West Maple Street, Jeffersonville, Indiana Part of Lot No. One Hundred Eighty -two (182) in the City of Jeffersonville, bounded thus: Beginning on the north line of said lot, 16- 1/2 feet eastwardly from the northwest corner of said lot; thence Eastwardly and on the north line of said lot, 28 -1/2 feet to a stake in the line of Basil Clyde Holmes; thence Southwardly, and with said line, 213 feet to the north line of an alley; thence Westwardly and with the north line of said alley, 28 -1/2 feet to a point 16 -1/2 feet from the southwest corner of said lot; thence on a line parallel with and 16 -1/2 feet from said west line of said lot, 213 feet to the place of beginning. 2. Speth shall convey the Real Estate to the City by warranty deed free and clear of any liens or encumbrances. In addition to the warranty deed, Speth shall deliver to the City, at the Closing, such other documents as may reasonably be required by the City or its title company issuing an owner's policy of title insurance for the Real Estate to issue such policy. 3. At the Closing, the City shall (i) pay Speth the sum of Thirty -six Thousand Eight Hundred and No /100 Dollars ($36,800.00) for the purchase of the Real Estate (the "Purchase Price), as adjusted as set forth in Paragraph 5 below, and (ii) convey to Speth certain real estate located on Meigs Avenue that abuts real estate owned by Speth located on Chestnut Street, which real estate is valued at $2,800.00 and is shown as Tract I on Exhibit A attached hereto (the "City Real Estate "). 4. The City hereby represents and warrants that all official action required to authorize the transfer of the City Real Estate has been taken by the City. 5. The City shall convey the City Real Estate to Speth by special warranty deed free and clear of such liens, encumbrances and restrictions. In addition to the special warranty deed, the City shall deliver to Speth, at the Closing, such other documents as may reasonably be required by Speth or its title company issuing an owner's policy of title insurance for the City Real Estate to issue such policy. 2 6. The Purchase Price shall be reduced by (i) $2,800.00, as a credit for the in -kind conveyance of the City Real Estate, (ii) any amounts necessary to clear any lien or encumbrance on the Real Estate including, but not limited to the lien of Defendant, MainSource Bank, (iii) any unpaid utility charges and (iv) real estate taxes pro -rated to the date of the Closing. To the extent the real estate taxes for the period in question are not specifically ascertainable, the parties shall base the pro- rations upon the most recent real estate tax assessments available, and such proration shall be deemed to be final and conclusive. 7. The parties agree that Speth shall surrender possession of the Real Estate at the Closing and the City shall surrender possession of the City Real Estate at the Closing. 8. The conveyance of the City Real Estate to Speth and the payment of the Purchase Price to Speth by the City, as adjusted and /or recalculated pursuant to the terms of this Settlement Agreement, shall constitute the total compensation to be paid by the City to Speth, and the City shall have no further financial obligation to Speth on account of the conveyance of the Real Estate. 9. The Closing of the Real Estate shall occur at a location in Clark County, Indiana, designated by the City. The City shall bear all costs of closing the purchase of the Real Estate and the City Real Estate except as expressly provided to the contrary in this Settlement Agreement. 10. Following the Closing of the purchase of the Real Estate by the City, the parties shall tender a joint stipulation of dismissal of this proceeding without prejudice, although the parties retain the right to re -open this proceeding for the limited purpose of seeking enforcement of the terms and conditions of this Settlement Agreement. 3 • 11. Each party shall pay their own costs and attorney's fees incurred in this proceeding. 12. Speth acknowledges that he (a) has read and fully understands the terms and provisions of this Settlement Agreement, (b) has had an opportunity to consult with legal counsel of his choice prior to executing this Settlement Agreement, and (c) now executes this Settlement Agreement by his own free accord. [The remainder of this page intentionally left blank. Signature pages follow.] 4 WHEREFORE, Gary R. Speth, Sr. has approved this Settlement Agreement, and further respectfully asks that this court approve this Settlement Agreement in all respects. GARY R. SPETH, SR. Read and approved as to form: By: Ronald D. Culler, Counsel for Gary R. Speth, Sr. 5 WHEREFORE, the City has approved this Settlement Agreement by the undersigned as its duly authorized official and representative, and further respectfully asks that this court approve this Settlement Agreement in all respects. For the "City": CITY OF JEFFERSONVILLE, INDIANA, for the use and benefit of the JEFFERSONVILLE SANITARY BOARD By: Mike Moore, Mayor and Chairman of the Sanitary Board Prepared and approved as to form: By: Amy J. Bumette, Counsel for the City 6 - jij;; °• o a x W 3I W W 3 2 W; 5 • o E Sl b "L'" % - m K ,n • ' a • y - fl 8 E 6 Y . 5 sL ? - 8 F W cgr s s • ._ . 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A z z z z z o 82 101 T. • 0 J .0099 .00'58 .00'58 .0099 ,00'92 81 , .00 05*" ` _ " . ,OO SZ .00 / 181. .0. 069 .00'011 a e I • FS T Z O� - - _ _ _ (1186858 .09) M/9 .09 - 1 1hN153H3 ( 19083 9823 - a w 2 EXHiBIT A • IN THE CIRCUIT COURT NO. 1OF CLARK COUNTY STATE OF INDIANA CITY OF JEFFERSONVILLE, INDIANA, FOR THE USE AND BENEFIT OF THE JEFFERSONVILLE SANITARY BOARD, Plaintiff, v. Case No. 10001- 1112 -PL -120 GARY R. SPETH, SR., AND MAINSOURCE BANK (F /K/A INDEPENDENCE BANK), Defendants. ORDER APPROVING SETTLEMENT AGREEMENT This court having carefully reviewed the Settlement Agreement tendered by the parties hereinabove, and finding such agreement to be fair and equitable on its face, now finds that such Settlement Agreement should be approved and entered of record in this cause. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the above Settlement Agreement by and between plaintiff, City of Jeffersonville, Indiana, for the use and benefit of the Jeffersonville Sanitary Board, and defendant, Gary R. Speth, Sr., is approved in all respects. Dated: January , 2013 DANIEL E. MOORE, JUDGE, Clark Circuit Court No. 1 7 Tendered by: Amy J. Burnette, #21630 -10 Distribution: Amy J. Burnette, APPLEGATE FIFER PULLIAM LLC, 428 Meigs Avenue, Jeffersonville, IN 47131- 1418 Ronald D. Culler, 1712 Williamsburg Drive, Suite 200, Jeffersonville, IN 47130 Mark J. Sandlin, 9301 Dayflower Street, Louisville, KY 40059 8 EXHIBIT _ Part of Block No. Forty (40) in the Enlargment of City of Jeffersonville, Clark County, Indiana, described as follows: Beginning on the Eastern line of Meigs Avenue Seven (7) feet Southwardly from the line dividing Lots Two x Three (2 x 3) in said Block No. 40; Thence Eastwardly with said line One Hundred Ten (110) feet; Thence obliquely Eastwardly to the line dividing said Lots 2 and 3, at the alley; Thence Southwardly with the line of said alley Thirty (30) feet; Thence Westwardly and parallel with said second and first described lines to a point on Meigs Avenue Thirty feet Southwardly from the Place Of Beginning; Thence Northwardly along the line of Meigs Avenue 30 feet to the beginning. (DR 75, Pg. 348) ALSO, Part of Block Number Forty in said City of Jeffersonville, bounded thus: • Beginning at a point in the Eastern line of Meigs Avenue 37 feet Southwardly from the line dividing Lots Numbers 2 and 3 in Block; Thence Eastwardly on a line parallel with said dividing line 110 feet; Thence obliquely Eastwardly to a point 30 feet Southwardly from said dividing line at the alley; Thence along said alley to the Southern line of the levee Westwardly to a point 100 feet Eastwardly from Meigs Avenue and 50 feet Southwardly from said dividing line of Lots 2 and 3; Thence Westwardly 110 feet on a line parallel with said dividing line to .a point in the Eastern line of Meigs Avenue; Thence along the Eastern line of Meigs Avenue Northwardly 13 feet to the Place Of Beginning. (DR 79, Pg. 566 -567) Excepting from the above and not included in this search is the following property: Part of Block number Forty in said City of Jeffersonville, beginning at a point in the Western line of said block 7 feet Southwardly from the line dividing lots numbers two and three of said block; Thence Eastwardly and parallel with said dividing line 110 feet; Thence Eastwardly with an oblique line (which if produced would intersect said dividing line at the alley) 75 feet; Thence Southwardly to a point 20 feet Southwardly from said dividing line and 110 feet Eastwardly from said Western line; Thence Westwardly and parallel with said dividing lien 100 feet to the Western line of said block; Thence Northwardly 13 feet to the Place Of Beginning. 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