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HomeMy WebLinkAbout07-18-2005 COUNCIL PROCEEDINGS OF THE COMMON COUNCIL OF THE CITY OF JEFFERS ONVILLE, INDIANA July 18, 2005 The Common Council of the City of Jeffersonville, Indiana met in regular session in the Multi-Purpose Meeting Room in the City-County Building, Jeffersonvill¢, Indiana, at 7:30 P.M. on Monday July 18, 2005. Mayor Rob Waiz, with Deputy Clerk Treasurer Barbara Hollis at the desk, called the meeting to order' Also present were City Attorney Les Merkley and Council Attorney Allen Morris. Mayor Waiz welcomed all in attendance, asking all th°se present to stand as Reverend. R. Monty Snelling gave the invocation. Mayor Waiz then asked all those present to join him in the pledge of allegiance to the flag. The roll was called and those present were; Councilpersons John Perkins, Ed Zastawny, Keith Fetz, Connie Sellers, Barbara Wilson, Ron Grooms, and Phil McCauley. Absent: None Councilperson President Grooms made the motion to approve the agenda with the addition of item #16A Ordinance establishing a Cumulative Capital Fund for Parks, and changing the speaker on agenda item #17 to Councilperson McCauley, second 'by Councilperson Perkins, passing on a vote of 7-0. Mayor Waiz presented the minutes of the meeting of June 6, 2005 for approval. Councilperson Wilson made the motion to approve the minutes following the correction of the vote of 7-2 to 7-0 on page 5, second by Councilperson Sellers, passing on a vote of 7-0. Council President Grooms made the motion to approve the summary report of the May 21, 2005 Council Retreat Workshop, second by Councilperson Wilson, passing on a vote of 7-0. Deputy Hollis presented the claim list for conSideration by the Council, explaining one additional claim to Kentucky Track Sales from the Fire Department. Councilperson McCauley questioned the appropriations used to pay claims for appraisals. Following all discussion, Councilperson Perkins made the motion to approve the claim list with the additional claim and tabling the appraisal claims, seconded by Council President Grooms passing on a vote of 7-0. July 18, 2005 2 PUBLIC COMMENT: Mr. Derek Spence, a Maple Street resident, congratulated the Mayor and Council for the relocation of MedVenture to Jeffersonville. He believes the protections that have been put in place are good and he hopes they work. Mr. Spence sides with the Council regarding the plans for City Hall. He believes once the plans were signed they should not be changed. With regard to the fireworks issue, Mr. Spence blames the legislature for allowing the sale of fireworks. He fears the Ordinance will not eliminate the problem as the process is broke. The PERF transfer on the agenda was explained. Mr. Spence said he and his family have enjoyed the quality of life in JefferSonville this summer by taking advantage of the programs offered. He commends the Parks Department, Youth Director Bev Knight, the Aquatic Center, the Parks Department and River Stage. He asks these programs be remembered at budget time. Clark County Councilperson R. Monty Snelling invited the Mayor and Council to a County Council meeting, Tuesday, July 19, 2005 at 5:00 P.M. to hear a program on purchasing. DEPARTMENT HEAD REPORTS: There were no Department Head reports. AGENDA ITEMS: Ordinance No. 2005-OR-34, An Ordinance Rescinding Ordinance No. 2004-OR- 45 Vacating A Portion Of Wall Street, A Public Way In The City Of Jeffersonville was presented. City Attorney Merkley said the road is now open. The City will be watching the bankruptcy for protection. Councilperson Perkins made the motion to table Ordinance No. 2005-OR-34, second by Councilperson McCauley, passing on a vote of 7- 0. Councilperson McCauley asked Council Attorney Morris to explain the form of the Option To Purchase Real Property, and Agreement. Councilperson Perkins asked if the street would be vacated. Attorney Morris said this would be at a later date. Councilperson McCauley explained Exhibit A iS incomplete and will be obtained. The document will be changed to meet the facts. The Clark County Commissioners must also approve this document. Following all discussiOn, Councilperson McCauley made the July 18, 2005 3 motion to approve the form of the Option To Purchase Real Property And Agreement as attached to these minutes (Subject to changes in the description as may changed by survey or vacation) and also subject to approval by the Board Of Public Works & Safety and the Redevelopment Commission, second by Councilperson Zastawny, passing on a vote of 7-0. Council President Grooms introduced Resolution No. 2005-R-25, A Resolution To Advertise For An Additional Appropriation (General Fund, Clerk Treasurer). Deputy Hollis explained the appropriation was not put in place to agree with the salary ordinance. Councilperson Perkins said he remembers this to be a one-time payment. Following all discussion, Council President Grooms made the motion to pass Resolution No. 2005-R- 25, second by Councilperson Fetz, passing on a vote of 7-0. Council President Grooms introduced Ordinance No. 2005-OR-35, An Ordinance Transferring Certain Funds Within Same Department (Common Council). Following all discussion, Council President Grooms made the motion to pass Ordinance No. 2005-OR- 35 on the first reading, second by Councilperson Fetz, passing on a vote of 7-0. Ordinance No. 2005-OR-36, An Ordinance Transferring Certain Funds Within Same Department (Animal Shelter Budget) was introduced. Following all discussion, Councilperson Sellers made the motion to pass Ordinance No. 2005-OR-36 on the first reading, second by councilperson McCauley, passing on a vote of 7-0. City Attorney Merkley explained Ordinance No. 2005-OR-37, An Ordinance Replacing Ordinance No. 87-OR-38,, An Ordinance To Establish Cumulative Capital Development Fund Within The City of Jeffersonville. The publishing requirements were explained. The history of Cumulative Capital Development Fund followed. Following all discussion, Council President Grooms made the motion to pass Ordinance No. 2005- OR-37 on the first reading, second by Councilperson Sellers, passing on a vote of 7-0. City Attorney Merkley next explained Ordinance No. 2005-OR-38, An Ordinance To Establish Cumulative Capital Development Fund Within The City of Jeffersonville Department of Parks and Recreation. The publishing requirements are the same as described for Ordinance No. 2005-OR-37. Councilperson Perkins is concerned that the control of this fund will go from the Council t° the Park Board. Council President Grooms made the motion to pass Ordinance No. 2005-OR-38 on the first reading July 18, 2005 4 allowing $.02. Following discussion, the motion died due to the lack of a second. Attorney Merkley believes it would have to be a 3-year phase in to a maximum of $.05. Council President Grooms then made the motion to pass Ordinance No. 2005-OR-38 on the first reading reflecting a rate of $.05 in 2007, second by Councilperson Sellers. Councilperson Zastawny is concerned with the ability to raise taxes when the need has not been established. Following all comments, the motion to pass Ordinance No. 2005- OR-38 on the first reading passed on a vote of 6-1. Councilperson Perkins voted against passage. Councilperson McCauley presented Resolution No. 2005-R-26, A Resolution Regarding City Council Offices In The New City Hall. He does not see the need to segregate areas to fund:: T.I.F. Funds were discussed. Councilperson McCauley made the motion to pass Resolution No. 2005-R-26 to include the approval by the Redevelopment Commission, second by Councilperson Perkins° Mayor Waiz questioned the designated space. The description should match the plans presented at the ground- breaking ceremony. Mayor Waiz said he had conducted a small survey and only found cubicles shared by several Councilpersons in Indianapolis. Councilperson Perkins said Indianapolis is not building a new City Hall and that makes a big difference. At the conclusion of all discussion, the motion to pass Resolution No. 2005-R-26 passed on a vote of 7-0. Following discussion of dates for budget meetings, Council President Grooms made the motion to designate August 10 and August 11 at 7'30 P.M. as budget meetings, second by Councilperson McCauley, passing on a vote of 7-0. Street Commissioner Ron Ellis presented a sheet explaining proposed salary changes. Councilperson Perkins asked if this request would be in addition to any rise given for 2006. Commissioner Ellis replied yes it would be in addition. Commissioner Ellis next explained the process to obtain a CDL license. He is proud of the job the men do. Councilperson McCauley feels Commissioner Ellis has made a good case for the drivers, his concern is the drivers are only paid one dollars more than laborers. Commissioner Ellis was requested to have a salary ordinance amendment on the August 1, 2005 meeting agenda. July 18, 2005 5 Council President Grooms made the motion to pass Resolution No. 2005-R-27, A Resolution To Advertise For An Additional Appropriation (Common Council), explaining the funds are to be used for a fiscal study and an annexation study, second by Councilperson Perkins. Councilperson McCauley said he would like to propose dialogue to coordinate the comprehensive plan with possible annexation. Mayor Waiz asked that his Administrative Assistant be contacted to schedule the dialogue. The motion to pass Resolution No. 2005-R-27 passed on a vote of 7-0. CLERK TREASURER COMMENTS: There were no Clerk Treasurer comments. Council President Grooms gave the State Of The Council Address (attached) saying it is an honor and privilege to be in this position. COMMITTEE REPORTS: Councilperson Wilson said the budget committee has met with several departments and it has been a learning experience. The meetings are going well. Councilperson Perkins added there is a strong recommendation the employees be paid from the department where they work. Mayor Waiz said that is an excellent goal. Council President Grooms reminded the committee to keep memorandum. Councilperson McCauley has met with Redevelot~ment Director Barry Cahill regarding the T.I.F. districts. They are looking at rectoing the bond issue. COUNCIL AND MAYOR COMMENTS: Councilperson Wilson reported on the City Pride meeting saying four signs have been paid for with one being up and two ready to go up. The floodwall committee met with Artist Dafford and his assistant, saying the mural will be lovely. SIEDC will meet next Wednesday. They worked hard on the MedVenture project. Councilperson Wilson said the Animal Shelter Golf outing was lovely. Councilperson Sellers said the Animal Shelter Golf Tournament had 26 teams and 55 hole sponsors and all went well. She feels $10,000 was raised. Councilperson Fetz said he participated in the recent Mayor's Night In The Neighborhood on Springdale Drive. COncerns were for speeding, the 4-way stop and the mosquito problem. Councilperson Fetz said the MedVenture project exemplifies what July 18, 2005 6 working together can accomplish. This has been a positive outCome and a lesson all can take and use to take down barriers for the benefit of the taxpayer. Councilperson Perkins said the downtown residents and merchants are ecstatic about the possibility of the River Falls Motel and Lounge being no longer. The Redevelopment Commission is in the ongoing saga of property on Spring Street. The Elks building is on going and there are RFP's out for 10th and Walnut. Councilperson McCauley noted the Sewer Board appointment is expiring and he hopes there will be a recommendation. Mayor Waiz reported on the June 13, Sewer Board meeting regarding this and he is waiting to hear. Councilperson McCauley is bothered by the approving of claims after costs have been incurred. He is interested in talking to the Administration and the Clerk Treasurer regarding a purchase order system. It is good to see MedVenture relocate to Jeffersonville. Success breeds success. Council President Grooms called attention to a memo from Human .Resource Director Kim Calabro regarding PERF as well as a memo from Council Attorney Allen Morris. There is a new law in Indiana as of July 1 in regard to meth labs. Jeffersonville is doing its part. The Red Cross dinner will be held August 4. The Solid Waste Board meets Thursday. There will be a Council workshop August 1. Mayor Waiz appreciates the efforts put forth for the Animal Shelter Golf Scramble. Employee appreciate night went well. City employees from several departments will be cleaning up the entrance ramps. He is glad MedVenture is complete. Mayor Waiz appreciates all for coming tonight. As there was no further business to co~ cil, the meeting was adjourned 9:45 P.M. / ROBERT L. WAI7_o/MAYOR ATTEST' !11 ii Rural and Urban Sustainability Project An Economic and C°mmunity Devel0Pm~h~P~i~i~~J~e'c~ Administered by Jeffersonville Main Street Inc. ___~ Overview The Rural and Urban Sustainability Project is made possible through a grant between the Indiana Rural Development Council (IRDC) and Jeffersonville Main Street Inc. (JMSI). The grant is for the amount of $142,850 (see attached budget). This grant was awarded because the projects proposed by JMSI were unique and innovative. This funding is not intended to replace JMSI's normal day-to-day operational budget; portions of the administrative budget for this grant will go towards contracting with consulting firms. No grant funding derived from the IRDC sits in any JMSI account-- project costs will be reimbursed by the IRDC (after a State of Indiana claim voucher and progress report has been submitted and approved). The grant agreement states that the grant funds shall be used exclusively in accordance with the provisions contained in the grant agreement. Grant funding may be spent only on already approved grant project objectives. This grant will expire on April 1, 2007 and no payments will be made after that date. What the IRDC does The IRDC is a partnership of local, state, federal, profit and not-for-profit stakeholders that serve Indiana communities. The IRDC's purpose is to coordinate efforts of citizens and governments to meet the economic and social needs of rural Indiana. Many Indiana residents live in communities that lack the tax base and staff to support all of the services that they would like to provide. Therefore, many small towns lack the resources to provide the quality of life their residents deserve. Since it's inception in 1993, the concept of the Indiana Rural Development Council is based on partnerships. Who Is Involved with IRDC? 2005 IRDC Board Members: FOR PROFIT SECTOR: Joe DeHaven, Community Bankers Association of Indiana James Rice, Hannum, Wagle & Cline Kenneth Birk, V S Engineering Matt Wirth (A), Bonar Group NON-PROFIT SECTOR' Nancy Kinder, Eastern Indiana Development District Beth Archer, Indiana Agricultural Leadership Institute Kent Yeager, Indiana Farm Bureau DeeDee Sigler (A), Indiana Association of Soil & Water Conservation Districts FEDERAL SECTOR: Robert White, US Department of Agriculture - Rural Development William Shaw, US Department of HoUsing and Urban Developmem Paul Neumann, USDA Rural Development Gail Gesell (A), US Small Business Administration STATE SECTOR: Becky Skillman, Lt. Governor (represented by Anne Hazlett) James Segedy, Ball State University Bob Sunman, Indiana State Department of Health John Demerly (A), Indiana Department of Education LOCAL SECTOR: Charles Andres, Town of St. Leon Mayor William H. Graham, City of Scottsburg David Hess, Elkhart County Auditor Julie Berry (A), Jefferson County Commissioner YOUTH MEMBERS: Kim Self Stephen Galspie PAST CHAIRPERSONS: Kermit Burrous, Retired Frank O'Bannon, Governor BOARD LIASONS: Dr. Sam Cordes, Purdue Cooperative Extension Service Debbie Bishop Trocha, Indiana SBDC LEGISLATIVE APPOINTMENTS: Robert Jackman, Indiana State Senator Richard Young, Indiana State Senator William Friend, Indiana State Representative Doran Moreland, U.S. Senator Evan Bayh's Office Lane A. Ralph, U.S. Senator Richard Lugar's Office Brandt Hershman, Congressman Steve Buyer's Office What are the objectives of this grant? As a nonprofit organization, Jeffersonville Main Street Inc. is working hard to be a partner in the revitalization of downtown Jeffersonville. However, our strategy cannot not be limited to focusing only on the downtown district while ignoring the land-use decisions and development happening in the surrounding region. Downtown Jeffersonville doesn't exist in a vacuum, therefore we must think regionally. The National Trust's Main Street Center warns that much "downtown revitalization doesn't really take place downtown, but in the region where land-use decisions are made." Basically, it means less sprawl and more planned growth = a healthier downtown. We hope this grant contributes to the economic and social health of our commurfity. Objective #1 Land Use Planning Project- not funded Objective #2 Marketing Campaign to Encourage People to Support Locally (within Clark County) Owned Businesses Funding for this project will require designing and purchasing advertising in local media outlets (local newspapers and cable television) and designing slogans and printed materials for distribution throughOUt the county that will inform people of the benefits of supporting locally owned businesses and agricultural enterprises. Impact: Increased investment in locally owned enterprises, more local dollars staying in local communities instead of a far off corporate headquarters, increased spending on local services (accounting, newspaper ads, office supplies, etc.), increased investment in local communities by people who live in communities. Objective #3 Create a Business Incubator to Encourage Local Entrepreneurship This program will assist start-up companies by providing an inexpensive place to open their business and "test the water" in the marketplace. Creative business ideas will be encouraged. Impact: Increased number of new businesses and entrepreneurs in Clark County. Creation of an atmosphere where the risks of Starting a new business venture will be limited, thereby creating an incentive for more people to start a business and create jobs in Clark County. Objective # 4' Promote and Expand Clark County Farmers Market and Initiate a Community SUpported Agriculture (CSA) Program This project entails marketing the Clark County Farmers Market's two existing location in Jeffersonville and Charlestown through media outlets, direct mailing, and special events. It also will include recruiting more growers to participate in the market. The CSA Program will assist local growers (preference given to those participating in the farmers market) with investments for their expenses before planting time. Both the Farmers Market and the CSA will provide locally grown, fresh picked produce to people without easy access to agricultural areas. Impact: Increased revenues for local growers, expanded variety of products at Clark County Farmers Market, and increased awareness by public of food sources and the importance to sustain agriculture in the Indiana economy. Objective # 5' Establish a FarmLink Program to ensure that working farms remain in agricultural production. This program will connect people wanting to get started in agriculture with farmers and landowners who are committed to helping establish the next generation of farmers. This program is modeled from a successful one in King County, Washington. The Clark County FarmLink would involve identifying and establishing contact with existing farmers, setting up the legal framework for the project, and promoting the project through local media and a the JMSI website. Impact: Reduced number of farmed acres being lost to development, increased number of farmers in Clark County, continuation of farm operations that would otherwise close. Objective # 6: Create a Development Information Hub This would create a clearinghouse for information on all public and private capital improvement projects taking place in Clark County's cities, towns, and rural areas. This will require obtaining copies of agendas and permit applications from all levels of local government (Legislative, Planning, Zoning, Building Commissioner, etc.), inquiring about project details, and putting the information on the JMSI Website for public review. Impact' Increased communication, coordination, and awareness of proposed project that will impact the community. Objective #7 Local Leadership Training Program- not funded Objective #8 (Countywide Assessment/Inventory of Brownfields and Farmland) This will provide a comprehensive picture of what our region has in terms of available land (brownfields that are ripe for redevelopment and farmland that needs to be protected). This could result in organizing a ranking system for (outstanding, notable, etc.) brownfield and agricultural areas, listing details about development and preservation threats and opportunities. This project will also attempt to inventory all of the vacant lots and buildings in Clark County, with sales and contact information. All of this information will be listed on the internet for easy public access. Impact' This will lessen unnecessary industrial and commercial development on greenfields and focus development in more fiscally responsible areas. It will make it easier for officials and developers to make decisions about the most economically efficient space for development proposals. Will our communi be eli ible for more IRDC__grant funding in the future? ,,. :=,: ,=,,; ::,~, ;; ,: ,, ...... _._ . Yes, more grant funding has been budgeted by the state. However, the date of future grant cycles are, as of yet, undetermined. These grants are highly competitive and there are usually more requests for funding than there is funding available. II. Budget Rural and Urban Sustainability Project An Economic and community Development PilOt project Administered by Jeffersonville Main Street Inc. 1) Objective# 1 - not funded 2) Objective #2 Marketing Campaign to Encourage People to Support Locally (within Clark County) Owned Businesses Expenditure Area Amount (Source of Funds)_ Marketing Campaign: $30,000 (IRDC Grant) Administration' $ 6,200 (Local Match --- In-Kind Donation) Media Consulting: $ 4,800 (Local Match --- In-Kind Donation) Subtotal' $41,000 3) Objective #3 Create a Business Incubator to Encourage Local Entrepreneurship Expenditure Area Amount (Source of Funds) Office Space: Administration: Administration: Promotion: Phones: Photocopier: Subtotal: $28,800 (Local MatCh In-KindDonati°n) $ 9,000 (Local Match --- Cash + In-Kind Donation) $ 7,000 (IRDC Grant) $ 3,990 (IRDC Grant) $ 1,710 (Local Match --- In-Kind Donation) $ 1,800 (Local Match--- In-Kind Donation) $52,300 4) Objective #4 Promote and Expand Farmers Market and Create a Community Supported Agriculture Program Expenditure Area Administration' Promotion: Subtotal' Amount (Source of Funds) $22,000 (IRDC Gram) $ 7,000 (IRDC Grant) $29,000 5) Objective #5 Establish a FarmLink Program Expenditure Area Amount (Source of Funds) Administration' Administration: Promotion: Website: Subtotal: $15,000 (IRDC Grant) $ 5,000 (Local Match --- In-Kind Donation) $ 2,460 (IRDC Gram) $ 1,480 (Local Match--- In-Kind Donation) $23,940 6) Objective #6 Create a Development Information Hub Expenditure Area Amount (Source of Funds) Administration: Administration' Promotion: Website' Subtotal: $19,000 (IRDC Grant) $ 5,000 (Local Match--- In-Kind Donation) $ 2,400 (IRDC Grant) $ 1,480 (Local Match--- In-Kind Donation) $27,880 7) Objective #7 - not funded 8) Objective #8 (Countywide Assessment of Brownfields and Farmland) Expenditure Area Amount (Source of Funds) Administration' Administration: Materials: Promotion: Website' Subtotal: $30,000 (IRDC Grant) $10,000 (Local Match--- In-Kind Donation) $ 2,000 (IRDC Grant) $ 2,000 (IRDC Grant) $ 1,480 (Local Match--- In-Kind Donation) $45,480 Total IRDC Grant Portion: Total Local Match Portion' Project Budget Total' $ 142,850 $ 76,750_ $ 219,600 THE C RON GROOMS Councilperson At Large July 18, 2005 ONVILLE Jeffersonville, IN 47130 282-6108 Home hangerrx@ao~.com STATE OF THE CITY COUNCIL When it came time to write this report, I was almost overwhelmed by the task. The report is made difficult by having to select from the many topics for discussion. This years City Council,. as many before them, has been very active and worked hard to resolve the various issues presented to them. From such routine activities as approval of claims to the issuance of millions of dollars in Sewer Department Bonds to the agreement on a new City Hall, this council has met several challenges. We have taken seriously the fulfillment of our recently adopted mission statement which is "The Jeffersonville City Council is dedicated to serving its citizens to improve the quality of services provided b) the various boards, agencies and departments within its government." It is with great pride that as City Council President, I share with you our progress to date. One of the highlights this year was the City Council Retreat, on May 21, 2005. All seven council members met in a special meeting, with a facilitator, to get better acquainted and to plan our council agenda for the next two years. We evaluated council and individual strengths and weaknesses. We examined our own reasons for wanting to be councilpersons. After six hours in special session we came away better informed, with a sense of direction £9r accomplishment, and a list of goals and objectives as a group': The cost to the taxpayers for this meeting.was approximately $1,000.00 and it was mgney well spent, i ~ City council committees have been very active this year. Of the seven council committees, four have met two or more times. Much information has come from these meetings and the council members should be apPlauded for their efforts. Confrontation was avoided and agreement was reached between the City and Clark Memorial Hospital regarding transfer of City land, because of the hard work of a committee. The city's tax increment finances are much more clear and tax abatement issues are being resolved because of the dedication of two committees several million dollars has been.saved on the Sewer Master Plan because of a committee and the dedication of one councilperson. In addition to participation on various committees, council members have served as liaisons or appointees to various city departments or community agencies. From the Board of Public Works to the Drainage Board to the Animal Shelter to the City Plan Commission to the Southern Indiana Economic Development COuncil to the Clark County Solid Waste District to the Sanitation Department, we have been active and involved. The above are just a few of the many hours involved. We have been involved in almost everything from providing the appropriation to buy a motel/lounge in downtown to beginning a study on annexation. ! AN EQUAL OPPORTUNITY EMPLOYER State of the City Council Page 2 The Council Legislative process has certainly not been idle thus far. We have passed 29 ordinances and~21 resolutions in the first .six months. The most notable of our legislative successes has been the adoption of a 20-year master plan for the wastewater treatment plant. Initial funding in the amount of $6.5 million has been approved. Almost 20% or nine pieces of legislation have dealt with land usage or re-zoning of property. By comparison to previous years this is a decrease. We are seeing, as are most cities, land becoming more scarce and increased residential and commercial development within our current boundaries. The council is in the process of amending the agreement between'the city and the county and other municipalities regarding the funding of the Jeffersonville- Clark County Animal shelter. The council is seeking more financial assistance in the operations of the shelter. Another legislative action resulted in the adoption of an ' interlocal agreemem to provide a stoplight on Allison Lane near Jeffersonville High School. The city will pay for part of the installation and maintenance. Improvements in our city's infrastructure have certainly not been ignored this year. After much debate and several meetings, bonds have recently been sold for $6.5 million to finance the first two years of major improvements to our wastewater treatmem plant. The total cost of this 20~year master plan will probably exceed $50 million. Bids have recently been accepted and work will begin soon on a new city hall in Quadrangle Station. The cost of this project will probably exceed $3 million. A study has been~ completed and presented to the council for a new fire station to serve the eastern and northern sections of our city. Construction would take about six months at a cost of about $1 million. No decision has been made on this project. The council recemly approved)he application to the Department of Homeland Security to pay a portion of the saihries for additional firemen for five years. Appraisals have been received on land that might'be suitable for the construction of a new City garage for vehicles and equipment. This council will probably be' asked to :~' appropriate EDIT funds or cumulative capital improvement monies for this project. Construction on this long overdue facility could begin in early 2006. State of the City Council Page 3 The 2005 City budget has not been a source of major debate or alteration. Most of the budget changes have been in the form of minor transfers or salary changes. Revenues from the county income tax (EDIT) have been as expected. Income from EDIT for 2005 has been $673,500.00 and we have a balance in this fund as of June 30th of $1,560,542.00. EDIT APPROPRIATIONS City Hall Wheels to Heals Ken Ellis Garbage Truck Lease Sidewalks Greenway Project 137,793.00 .... 10,000.00 !31,133.00 57,000.00 54,000.00 50,000.00 Revenue from the County Wheel Tax in the amount of $48,219.00 thus far in 2005, will be used to replace some lost revenue from the State in Local Roads and Street (LRS) Fund. The city's share of state gaming revenues for 2005 shows a balance of $172,712.00 with no disbursements to date. Our General Fund Budget has a balance of $11,318,517.00 as of June 30th. The late distribution of local property tax revenues has prevemed this number from being higher and has resulted in our inability to retire debt for previous loans to the General Ftmd. Our General Fund balance at the beginning of the year showed a balance of $6,986,016.00. Some highlights from the 2005 Budget' Appropriation Report include the 'following as of June 30, 2005:' -- Title ' ' Council Hospitalization Council Prof. Services Building Rental Vehicle Maint. Gasoline Sanitation, Fuel Sanitation, Serv. Contr. LRS Construction Cum. Cap: Development (Misc. Purchases). Fire Dept. capital Cum. Cap. Development (Computer Lease) ADA- Curb Cuts Motor Vehicle, Gasoline~ Current' Expended-YTD $1,910,000:00 $1,200,000.00 16,200.00 12,127.00 350,000.00 247,500.00 200,000.00 87,179.00 45,000.00 44,421.00 57.,996~00- 7,917.00 850,000.00 :- 522,007.00 30'5;000.00 : 253,596.00' Balance $ 710,000.00 4,073.00 144,800.00' 157,744.00' 578.00 .... 50,079.00 329,863.00* 51,404.00 72,000.00 71,349.00 651.00 45,200.00 .00 45,200.00 45,000.00 .00 45,000.00 28,350.00 28,350.00 .00' The State of the City Council Page 4 The above line items with (*) in balance have had transfers into their budget. The above selected highlight? are Subject to audit and are included here to show current activity for some appropriatifins and l~nd guidance to the council On fUture decisions and concerns. Economic development has been a very important activity for this council in 2005. Veterans Parkway commercial development and the proposed Jeffersonville Town Center will require thorough analysis and tough decisions. The council may be asked to appropriate EDIT funds and approve bond financing for infrastructure improvement. A separate tax increment-financing district will probably be created to provide the revenues to support this project. Re-zoning is nearly complete in the Veterans Parkway corridor to allow proper commercial development. The council is awaiting various decisions that will guide our involvement in the commercial developments near 10th and Spring Streets. The Department of Redevelopment is directing this. activity. The council may be asked to appropriate EDIT . fund, approve a bond issue to complete this development or use cumulative capital development funds. Recent ~ity council re-zoning ordinances have paved the way for commercial development along 10th Street near Holmans Lane and Highway 62 near Herb Lewis Road. The city suffered a slight setback recently when a proposed $40 million condominium-retail project in downtown Jeffersonville was put on hold due to bankruptcy and reorganization. The administration, Mayor Waiz, and the council have spent countless hours working - with Govemor Daniels and Med Venture, a Louisville, Ky business, to bring Med Venture's relocation to Jeffersonville. This exciting comp.any could bring hundreds of jobs to Jeffers0.nville in the medical technology and research field. An announcement could come within days on this project. Quality of life issues have drawn the attention and concern of this council. The soon.to be opened Remnant Trust Collection of Rare Books in downtown Jeffersonville will get city. council support. The .newly opened Riverstage featuring, movies and live emertainmem on the Ohio River.certainly add to our theatre.0gppmmities. The commitment to a new Ken Ellis Cemer for Senior Citizens, the continued support to the Jeffersonville. Youth Commission, support for-Concerts in the Park and the Howard Steamboat Museum shows our appreciation. In addition, the financial support to the Clark County Health Clinic, Repair Affair and others important to improving conditions in our community. As council president, I will be asking Mayor Waiz to designate and create activities to promote Racial Equality Week starting September 26, 2005. In closing, with increased activity by this council and the demand for increased communications among its members and the administration, many times relations and communications become strained. With council committees meeting two or three time per week and the mayor's busy schedule and the part-time status as council members, tensions can become increased. Almost every day brings a new experience and challenge. I know from working at this position for the past six months that the council members really do share our recently adopted council vision which is "The Jeffersonville City Council(will plO-tide a city government that is aligned, connected to its citizens and working at peak efficiency and effectiveness." Ron Grooms, President Jeffersonville City Council i am here to follow up on a request I recently made to you. The street dept. has been experiencing quite a bit of difficulty in hiring truck drivers. My suggestion to raise the pay for drivers with a Commercial Drivers License to $14.00 per hour and Tippers to $13.00 per hour will only affect the employees who currently make less than these amounts. This change will allow us to be comparable to the cities surrounding us in wages and benefits. My secretary has calculated and found that the amount of additional money needed for the rest of this year is less than it waS °riginally th°ught to be. The suggested appropriation needed for the rest of the year is as follows: Appropriation Amount Need for rest of year Number of affected employees $15,000.00 which covers normal overtime $13,000.00 5 CDL drivers and 8 tippers In the current salary ordinance, we have (3) Driver/Laborer spots and (1) Laborer spot. In the laborer spot, the top pay is $11.30 per hr. The driver/laborer can make up to $13.18 per hr.. Additionally one of our tippers is paid from Vehicle' Maintenance, and that position (mechanic helper/cleaner) can only make $11.30 per hr, therefore, the salary ordinance will probably have to be changed. The figures for additional money to finish out the year does not reflect an emergency, if one would appear that would involve major overtime being required, like the storm we had last year. The budget request that have been submitted for next year does not reflect the raises which we are giving this year. In order to lessen the impact on our appropriations, the raises will be given in increments of $.50 per hr. starting now and continuing every six months until the targeted pay level is reached. Ronald G. Ellis '" .STITES& ATTORNEYS 323 East Court Avenue Jeffersonviile, IN 47130 [812) 282-7566 [812) 284-5519 FAX www. stites.com oRANr)u Bruce Benjamin Paul (812) 218-1701 bpaul@stites.com TO' Allen Morris FROM' Bruce B. Paul DATE: May 27, 2005 Jeffersonville City Council's Retroactive PERF Ordinance QUESTION PRESENTED ....... Whether the Jeffersonville City Council's ("the Council") 2005 ordinance ("2005 ordinance") to enroll its members in the Public Employees Retirement Fund ("PERF") retroactively to 1972 is effective where the Council passed an ordinance in 1980 (" 1980 ordinance") declaring the members ineligible for PERF. SHORT ANSWER Because the Council previously deemed its members ineligible to participate in PERF, the Council probably cannot now declare those.same members eligible. PERF administrators ("the administrators") will be within their fight to reject such an ordinance.. Although the Council could attempt to rely on the general principles that (1) ordinances operating J9484:9165:40600:1 :JEFFERSONVILLE Alexandria, VA Atlanta, GA Frankfort, KY Jeffersonville, IN Lexington, KY Louisville, KY Nashville, TNVVashington, DC retrospectively are enforceable and (2) the later act of a municipal legislature controls if it is inconsistent With the former act as long as it is not unlawful, .the .Council will not likely prevail. After all, the Indiana legislature charged PERF administrators with .making eligibility decisions based on statutes, and thus these administrators owe PERF a fiduciary duty to ensure only eligible members benefit from it. If the administrators determine that the ordinance seeks to . . enroll ineligible employees in the program, the administrators must reject the ordinance. Therefore, because the administrators know that the .Council previously declared its members ineligible at a certain period, it will not now allow the Council to state that those members were eligible. If the Council believes it can demonstrate that the 1980 Council members were eligible for PERF, despite the 1980 ordinance's language, certainly it can attempt to do this. As PERF administrators have jurisdiction over this decision, the Council can attempt to persuade them to this effect. Doing so may be difficult and costly, however. An option the Council may consider is to avoid the prior'ordinance altogether, if the Council sets the PERF retroactive date to a date later than the 19.80 .ordinance, PERF administrators will have no reason to believe a conflict exists. RELEVANT STATUTES AND.REGULATIONS Indiana Code § 5-10.2-3-1' Creditable service. (a) Each member's creditable service, for the purpose of computing benefits under this article, consists of all service in a position covered by a retirement fund plus all other service for which the retirement fund law gives credit. J9484:9165:40600:1 :JEFFERSONVILLE -2- (6) Employees, except employees of a participating school corporation, hired after June 30, 1982, occupying positions normally requiring performance of service of less than one thousand (1,000) hours during a year. Relevant Indiana Administrative Code Regulations are attached. SUMMARY OF FACTS The Jeffersonviile City Council ("'the Council") passed an ordinance in 2005 to enroll its members in the Public Employee Reti. rement Fund ("PERF"). The ordinance sought to cover its members retroactively to 1972. Unfortunately, the Council passed an ordinance in 1980 that withdrew its members from PERF because, at the time, it deemed its members ineligible. In other words, the Council in essence adopted two conflicting ordinances regarding its members' eligibility for PERF. This memorandum discusses the consequences of the 1980 ordinance as it relates to the 2005 ordinance. Although this memorandum mentions arguments the Council may have available to support the 1972 retroactive date, pursuing these arguments is likely futile. Rather, this memorandum suggests a different ~)ption: changing the retroactive date to any year after 1980, which will avoid any conflict with the 1980 statute. DISCUSSION PERF is codified under Indiana Code Title 5, Article 10.3. The statutes describe who is eligible to participate in PERF and the means to accomplish enrollment. The Council can choose to join PERF if it is eligible, and the 2005 ordinance enacted is the proper means of enrollment. -4- J9484:9165:40600: I :J EFFERSONVILLE Similarly, the Council can withdraw from PERF via ordinance if it determines it is ineligible, which the Council did in 1980. Generally, the most reCent ordinance addressing an issue operates to repeal a prior ordinance on that same issue.if the Council unambiguously enacted to achieve that end. Accordingly, the Council's 2005 ordinance arguably vacates the 1980 ordinance and controls the Council's belief regarding its eligibility for PERF. However, PERF administrators have authority to deny enrollment where they contend the enrollee does not meet the statutory and regulatory criteria for participation. Consequently, administrators can ig-nore the Council's 2005 ordinance if the.. ordinance.disregards eligibility requirements. Because the Council in 1980 declared members ineligible, administrators now perceive the 2005 ordinance as avoiding PERF's membership requirements. Thus, the Council's ordinance only repeals the prior ordinance to the extent it is consistent with laws and regulations, and administrators will not accept that the 2005 ordinance complies with its laws and regulations. As such, unless the Council desires to expend resources demonstrating members in 1980 were in fact eligible, PERF administrators will not accept the 2005 ordinance's language. The Indiana legislature authorized the PERF Board of Trustees to promulgate PERF's roles. I.C. § 5-10.3-3-8 (Bums Ann. 2004). MoreoVer, the PERF executive secretary has authority to make eligibility and other determinations on applications made to PERF. 35 I.A.C. 1.2-1-2 (readopted 2001). To that end, PERF makes decisions about membership applications and eligibility based on the statutes in effect. PERF membership requires full-time employment for the state or one of its political subdivisions. I.C. § 5-10.3-7-1 (Bums Ann. 2004). Furthermore, only full time employees who work at least 1000 hours annually qualify for PERF. I.C. § 5-10.3-7-2(6) (Bums Ann. 2004). The statute provides that a city council may pass an ordinance to enroll qualified employees in J9484:9165:40600:1 :JEFFERSONV ILLE -5- PERF. I.C. 5-10.3-6-1(a) (Bums Ann. 2004). Furthermore, the ordinance may include a date "from which prior service for its employees will be computed." M. at (b). This date must, however, correspond with a date when the council members were eligible for PERF. I.C. § 5- 10.2-3-1 (Bums Ann. 2004). The Council clearly satisfied the statutory requirements for PERF enrollment by duly passing the 2005 ordinance, which describes its members as "full-time" and stating that they work at least 1000 hours annually. Furthermore, the 2005 ordinance contains a retroactive date, as the statute permits, of 1972. However, that 1972 date does not correspond with the Council's period of eligibility for PERF. PERF administrators have on file the Council's 1980 ordinance, which declared its members ineligible for enrollment. Consequently, PERF administrators will not accept the 1972 retroactive date because it fails to conform with the statutes. This is because the 2005 ordinance, in the administrators' eyes, attempts to gain credit for a year when members were not eligible for PERF. PERF is only available to eligible members, and its administrators owe a fiduciary duty to the fand. As such, PERF administrators prohibit unauthorized enrollment of ineligible members. As such, they will not permit service credit for Council members in 1980. The Council may respond that its 2005 ordinance declares all council members back to 1972 eligible for PERF and, in effect, repeals the 1980 ordinance, but this argument is suspect. Indeed, the Council may repeal or amend a prior ordinance at its discretion. Such actions are best accomplished by passing ordinances that explicitly and unambiguously accomplish these ends. After all, Indiana courts do not favor an ordinance that does not.explicitly repeal a prior ordinance, but rather "constructively" repeals it. See Willian v. City of Evansville, 98 N.E.2d 219, 222 (Ind. App. 1951). However, a later ordinance that deals with the same substance matter J9484:9165:40600'1 :JEFFERSONVILLE -6- as a prior ordinance may operate to repeal the prior ordinance. This only occurs, however, if the · later ordinance is "so repugnant to the former that the two cannot be reconciled or unless it clearly appears that the later law would not have been enacted without a plain intention to repeal the earlier one." Id. The Council can argue that, based on this precedent, the 2005 ordinance repealed the 1980 ordinance and should be given full effect. This argument lacks persuasion. First, the 2005 ordinance in no way "explicitly and unambiguously" repeals the 1980 ordinance. In fact, the 2005 ordinance does not even mention the 1980 ordinance. Therefore, since the 2005 ordinance does not explicitly repeal the 1980 ordinance, the Council must argue it constructively repealed the 1980 ordinance. Unfortunately, the Council is at a disadvantage under this argument because Indiana courts disfavor such ordinances. Id. Nonetheless, the 2005 ordinance is arguably repugnant to the 1980 ordinance. Indeed, the Council could submit that the two ordinances cannot coexist given the PERF eligibility requirements. Hence, since the Council enacted the 2005 ordinance after the 1980 ordinance, the 2005 ordinance prevails and constructively repeals the 1980 ordinance. On the other hand, this constructive repeal argument fails to deal with the fact that neither ordinance contemplates Council members' eligibility before or after their effective date. For · example, the 2005 ordinance gives a 1972 retroactive date, but that clause fails to state the Council members were eligible back to that date. Similarly, the 1980 ordinance says nothing of the Council's eligibility in the future. Thus, PERF administrators could argue that the two ordinances are not repugnant to one another. Instead, the 2005 ordinance merely states that the Council members are now eligible and mistakenly suggests they were eligible back to 1972. J9484:9165:40600: I'JEFFERSONVILLE -7- Furthermore, reading the 2005 ordinance to qualify the 1980 Council for PERF squarely conflicts with PERF administ?'ators' authority to make eligibility determinations. The 2005 ordinance will only operate to the extent PERF administrators will pemfit, as is their statutory obligation. Consequently, PERF administrators will not ignore the 1980 ordinance. Nothing since 1980 affirmatively stated that Count:il members were eligible during that period. IfPERF administrators ignored the 1980 'ordinancei'they would breach their fiduciary duty to PERF by permitting ineligible individuals to participate. In other words, PERF administrators possess an affirmative obligation to measure the Council's 2005 ordinance against the 1980 ordinance they have on file and scrutinize any inconsistencies. In doing so, the administrators found the inconsistency in the 2005 ordinance: the 1980 Council was ineligible for the benefits the 2005 Council now wishes to obtain. As fiduciaries to the fund, the administrators will require the Council to demonstrate that the 1980 Council is entitled to PERF benefits. Of course, this does not mean the issue is dead. As previously discussed, where the Council's second ordinance is clearly intended to repeal the first ordinance, it should be operational so long as it is not contrary to law. If the Council intended the 2005 ordinance to make the 1980 Council members eligible for PERF, it can submit information in support of this contention. The Council would, in effect, be declaring now that the 1980 Council erred in declaring itself ineligible. In other words, the Council must demonstrate its members' eligibility between 1972 and 2005. Alternatively, the Council could redraft its ordinance to avoid the 1980 ordinance altogether. For example, the Council could pass a new ordinance that sets a retroactive date to 1981. As previously discussed, the 1980 ordinance says nothing of future eligibility, so PERF -8- .19484:9165:40600' 1 :JEFFERSONVILLE administrators would not dispute a 1981 retroactive date. Karen Vice, Jeffersonville's liaison, confirmed this point. While the Council would not benefit from the additional nine years of serviceable credit, the Council would not bear the burden of demonstrating the 1980 Council's alleged error in declaring themselves ineligible. CONCLUSION PERF is a fund that has statutory and administrative guidelines limiting eligibility, and the executive secretary possesses authority to make eligibility decisions in light of these guidelines. Beyond that, PERF administrators have an affirmativefi.duciary duty to guard the integrity of the fund so that ineligible members do not benefit from the fund or defraud ~it in any , way. On the other hand, the Council has authority to declare itself eligible for PERF if members satisfy the statutory and adminis~trative requirements. Furthermore, the Council can set a :. retroactive date for creditable service purposes, but its ordinance to this effect must withstand ., PERF administrators' scrutiny. If the administrators find that the C0uncil is seeking to provide membership benefits for a period where the Council was not eligible for PERF, the administrators will reject it. This is tree even if the Council's later ordinance repeals the.prior ordinance that made its members ineligible. The Council is not without options, however. The Council may attempt to demonstrate that, contrary to the 1980 ordinance, the 1980 council was eligible for PERF. A better option, however, is for the Council to amend the 2005 ordinance to make the Council's PERF retroactive .............. date 1981. This date would avoid the 1980 Council's. eligibility i~she ~ltogether. .' '. ~' "" ~ ' · . ..... '-~ 7- .; . . : . : .: bbp J 9484:9165:40600:1 :J EFFERSONV ILLE -9- AGREEMENT , THIS AGREEMENT ("Agreement") is made and entered into as of the ~ day of ,2005 by and between the CITY OF JEFFERSONVILLE, INDIANA, a third class city organized and existing under the laws of the State of Indiana (the "City") and THE BOARD OF TRUSTEES OF CLARK MEMORIAL HOSPITAL, an Indiana County Hospital (the "Hospital'). Recitals A. The Hospital is in the process of making improvements to its buildings and site, which improvements include the construction of a new road and entrance servicing the Hospital (collectively the "Improvements"). B. The Hospital is desirOus of obtaining additional real estate owned by the City for completion of its Improvements, which additional real estate includes an unused portion of Broadway (a pUblic street). C. The City is desirous of obtaining an option to purchase certain real estate owned by the Hospital (the "Option Property") to be used for future economic development for the benefit of the City and its citizens. D. Subject to the terms and conditions set forth herein, both the City and the Hospital are willing to make certain conveyances and take other necessary actions to enable completion of the Improvements and the economic development of the Option Property. NOW, THEREFORE in consideration of the mutual promises and covenants contained herein, IT IS AGREED' 1. The City will take immediate steps to vacate an unused portion of Broadway (the "Vacation"). A legal description and a drawing depicting the location of the property subject to the Vacation are attached hereto and identified collectively as Exhibit A. 2. Upon completion of the Vacation, the City will deed to the Hospital a 30 foot strip of real estate (the "Strip") owned by the City to be used by the Hospital for construction of a road which will provide a new entrance to the Hospital. The legal description of the Strip and a drawing depicting the location of the Strip are attached hereto and identified collectively as Exhibit B. 3. Upon completion of the Vacation and the delivery by the City to the Hospital of the deed to the Strip, the Hospital will grant to the Department of Redevelopment of the City of Jeffersonville an option to purchase a .311 acre parcel of land owned by the Hospital which ~s bounded by Tenth and Spring Streets (the "Option"). The legal description of the .311 acre parcel of land and a drawing depicting the location of the .311 acre parcel of land are attached hereto and identified collectively as Exhibit C (the "Optioned Property"). The Option will include the following terms' (i) The purchase price will be $404,7I 8.50. J9484'9147:42032:2: J EFFERSONV II~LE (ii) The Option will be for a term of four years. (iii) The Optioned Property, together with a .7 acre tract owned by the City (the "Adjoining Tract"), will be marketed as one (1) tract for sale as a site for professional offices, financial institutions, a hotel, or, as may be mutually agreed upon between the City and the Hospital. The legal description of the Adjoining Tract and a drawing depicting its location are attached hereto and identified collectively as Exhibit D. (iv) The Option will contain a fight of first refusal in favor of the Hospital allowing it to match any bona fide written offer for the Optioned Property and Adjoining Tract with the Hospital to receive a credit against the purchase price for both tracts equal to the Option price granted to the City. (v) The City of Jeffersonville and its Department of Redevelopment will not market or sell the Optioned Property and the Adjoining Tract to any competitors of the Hospital, including but nOt limited to any person or entity which is owned or managed by a hospital other than Clark Memorial Hospital or Jewish Hospital Healthcare Services, Inc. (vi) The Option will be in substantially the same form as Exhibit E attached hereto. (vii) The Option will be subject to the approval of the Board of Commissioners of Clark County, Indiana. 4. In the event the Optioned Property is sold, the Hospital agrees to provide ingress and egress to the Optioned Property from the Hospital's newly constructed road and entrance. 5. During the term of the Option, the Hospital agrees to maintain the Optioned Property and Adjoining Tract as open green space. 6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 7. This Agreement, including the Exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supercedes all previous negotiations, commitments and writings. 8. This Agreement may not be modified except by an instrument in writing signed on behalf of each of the parties hereto. 9. This Agreement shall be construed and the fights of the parties hereunder shall be governed by the laws of the State of Indiana. 10. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute Agreement. i I. To the extent applicable, the undersigned persons executing this Agreement on behalf of the City and Hospital represent and certify that he/she is a duly elected or appointed J9484:9147:42032:2: JEFFERSONVILLE officer or representative of either the City or Hospital and has been fully empowered by proper resolution of the Board of Trustees, or other governing body, of either the City or Hospital, to execute and deliver this Agreement; and that all necessary corporate or governmental action for the entering into of this Agreement has been taken and done. IN WITNESS WHEREOF, the parties haVe executed this Agreement on the dates set forth below CITY OF JEFFERSONVILLE BY: TITLE: DATE: THE BOARD OF TRUSTEES OF CLARK MEMORIAL HOSPITAL BY: TITLE: DATE: STATE OF INDIANA COUNTY OF CLARK ) )SS ) Before me, the undersigned Notary Public, in and for said county and state, personally appeared _, the of the City of Jeffersonville, Indiana, who ackn°wledged execution of the foregoing document. ' WITNESS my hand and Notarial Seal this_ day of ,2005. My Commission expires' Notary Public Printed: J9484:9147:42032:2 :JEFFERSONVILLE My County of Residence is' STATE OF INDIANA ) )ss COUNTY OF CLARK ) Before me, the underSigned Notary Public, in and for. said county and state, personally appeared , the of Clark Memorial Hospital, who acknowledged execution of the foregoing document~ 2005. WITNESS my hand and Notarial Seal this day of _, My Commission expires' My County of Residence is: Notary Public Printed' This instrument prepared by: J. Spencer Harmon STITES & HARBISON PLLC 323 East Court Avenue P.O. Box 946 Jeffersonville, IN 47131 (812) 282-7566 J9484:9147:42032:2 :JEFFERSONVILLE EXHIBIT , · . DESCRIPTION OF PART OF BLOCK 115 IN SEF~RSONVILLE Being a part of Block 115 in thc City of Jeffcrsonville, C1ark County, Indiana and being thrthcr described as follows: Beginning at a.steel pin on fl~e southwest comer of said Block t I5, being the northcast comer of Tcnth Street and Broadway in said City; Thence N.4°24'22"E., along the west line of said Block, being the east Right- of-Way line of said Broadway, 257.36 (bet to THE TRUE PLACE OF BEGINN~'G' Thence continuing N.4°24°22"E., along said Right-of-Way line, 30 feet to a steel pin on fl~e southwest comer of a tract of land descn'bed in Computer #200204400 (being 8.4°2422"W.., 109.8 feet from a steer pfl~ on. the northwest comer of said Block 115); Thence S.85°35'38"E., along the south linc of said tract, 75.23 feet to a steel pin on the southwestern Right-of-Way line of Spring Street; Thence S. 17°38'13"E., along said Right-of-Way line, 32.37 feet; Thence N.85°35'38"W., 87.38 feet to THE TRUE PLACE OF BEGINNING. Containing 2439 square feet, and being subject to all easements ofi:ecord. NOTE: ~lais description prepared from deeds and maps of record. No surveying done this date~ fiIe:18209~wpd OPTION TO PURCHASE,,,REAL,pROPERTY ~ . As part of, and in consideration of, the execution and delivery of that Certain Agreement by and between the Vendor and the Purchaser of even date herewith, The Board of Trustees of Clark Memorial Hospital, an Indiana county hospital ("Vendor"), with an address of 1220 Missouri Avenue, Jeffersonville, IN 47130 grants and conveys to the Department of Redevelopment of the City of Jeffersonville ("Purchaser"), a governmental entity organized and existing under the laws of the State of Indiana, with an address at 501 E. Court Avenue, Jeffersonville, IN 47130, the option to purchase certain real property located in the City of Jeffersonville, Clark County, Indiana, containing .311 acre more or less (the "Real Property"), the legal description of which is attached hereto as Exhibit A for the purchase price of $404,718.50 (the "Purchase Price") on the following terms and conditions' , TERM AND EXTENSION. Purchaser's right to exercise this option shall begin on the date hereof and shall continue until and including 11 '59 p.m. of August 1, 2009 (the "Option Period"). If Purchaser fails to give notice to Vendor of its exercise of this Option, through no fault of Vendor, or fails to obtain an extension of the Option Peri°d, then this Option to Purchase Real Property shall terminate at the end of the Option Period. . ASSIGNMENT OF OPTION. Purchaser may, without consent of Vendor, assign this Option to Purchase Real Property (the "Option") to any affiliate or successor, provided Purchaser shall remain liable hereunder. , EXERCISE. This Option shall be exercised by the Purchaser's notice to Vendor of its election to purchase (a) actually served upon Vendor or (b) placed in an envelope directed to the Vendor at the address of the Vendor shown above and deposited in the United States Mail by certified or registered mail, return receipt requested, postage prepaid, before the expiration of J9484:9147:42033:2 :JEFFERS ONV IkLE the Option Period. Upon Purchaser's exercise of this Option, Purchaser shall be deemed to have agreed to purchase the Real Property on the terms and conditions set forth herein. CLOSING. If this Option is exercised, the transaction shall be closed within thirty (30) days after a commitment for title insurance is delivered to Purchaser and each condition of purchase is either satisfied or waived. o PAYMENT ON CLOSING. At the closing of this transaction, Purchaser shall pay in cash to Vendor the Purchase Price. o CONDITIONS OF OPTION. This Option and Purchaser's rights herein are subject to the following conditions: A. Purchaser shall market as one (1) site, the Real Property and that certain .7 acre tract owned by the City of Jeffersonville which adjoins the Real PropertY (the "Adjoining Tract"). Attached as Exhibit B is a legal description and a drawing depicting the location of the Adjoining Tract. B. Purchaser will not market or sell the Real Property and Adjoining Tract to any competitors of the Vendor, including, but not limited to, any person or entity which is owned or managed by a hospital other than Clark Memorial Hospital or Jewish Hospital Healthcare Services, Inc. C. Purchaser shall market the Real Property only as a site for professional offices, financial institutions, a hotel or any other uses as may be mutually agreed upon between Purchaser and Vendor. D. In the event of the exercise of this Option by Purchaser, Vendor shall have the right to purchase for its own use the Option Property and the Adjoining Tract upon the same terms and conditions as set forth by Purchaser in its notice to exercise Option. Vendor shall receive a Credit against the purchase price for both the Option Property and Adjoining Tract equal to the Purchase Price. E. Vendor agrees during the Option PeriOd to maintain the Real Property and the Adjoining Property as open green space. J9484:9147:42033:2 :JEFFERSONV1LLE 7. CONDITIONS OF PURCHASE. If this Option is exercised, the Purchaser's obligations to consummate the purchase of the Real Property are subject to the satisfaction of the following conditions' A. There are no encroachments on the Real Property and no existing violations of zoning ordinances or other restrictions applicable to the Real Property. B. Purchaser, at its expense, shall receive a satisfactory staked survey of the Real Property certified as of a current date~ showing the locations of ail improvements and easements located thereon. The survey shall satisfy the Minimum Standard Detail Requirements for Indiana Land Title Surveys. C. Purchaser, at its expense, shall cause a Phase I and/or a Phase II Environmental Study to be conducted on the Real Property which shall be satisfactory to Purchaser in its sole discretion. D. Vendor hereby grants to Purchaser, its employees and agents access to the Real Property for the purpose of conducting a Phase I and/or a Phase II Environmental Study and similar site determinations. E. Vendor further grants to Purchaser the right to have any Phase I and/or Phase II Environmental Study performed prior to Purchaser exercising this Option. F. During the Option Period, Vendor shall not substantially alter the Real Property. G. Purchaser obtaining all necessary zoning approvals, variances and the like for Purchaser's intended use of the Real Property. H. The purchase is subject to the approval of the Board of Commissioners of Clark County, Indiana. 8. OBLIGATIONS OF PURCHASER. Purchaser agrees to indemnify and hold harmless Vendor for all losses, costs, and expenses of every nature, including reasonable attorneys' fees, incurred by or imposed against Vendor as a result of, or relating to, any acts or omissions of Purchaser, its agents, Contractors and employees, in respect of the Real Property, including any environmental tests. 9. VENDOR'S TITLE. Within five days after Vendor receives notice of the exercise of this Option, Vendor shall order for the Purchaser, as soon as the same can be J9484:9147:42033:2 :JEFFERSONVILLE prepared, a commitment for an owner's policy of title insurance issued by a title insurance company satisfactory to the Purchaser, in which the title insurance company shall agree to insure merchantable title in the name of the Purchaser after the delivery of a general warranty deed to Purchaser from Vendor. Such policy is to be issued without the standard pre-printed exceptions for parties in possession, survey, or mechanics' and materialmens' liens. The title insurance shall insure title for the full amount of the Purchase Price. and anticipated improvements, as determined by Purchaser. Vendor shall pay only those costs for title insurance related to the actual Purchase Price. 10. TAXES AND ASSESSMENTS. Purchaser assumes and agrees to pay all assessments for municipal improvements becoming a lien after the date of closing. Real estate taxes, if any, shall be prorated to the date of closing, i.e., if the closing were to take place on July 1, 2006, Vendor would pay both installments of the 2005 payable in 2006 real estate taxes and one-half (1/2) of the 2006 payable in 2007 real estate taxes. Vendor shall also pay any delinquent real estate taxes and any unpaid penalties or interest thereon. If the applicable tax rate has not been set, the current tax rate will be used for determining the prorated amount. Any taxes not assumed by Purchaser and which are not due and payable at the time of closing shall be allowed as a credit on the cash payment required at closing, and Vendor shall not be further liable for such taxes. RENTS, INSURANCE, AND RISK OF LOSS. Rents, if any, shall be prorated 11. to the date of closing. Insurance shall be canceled as of the date of closing. Vendor shall bear the risk of loss until closing. CLOSING DOCUMENTS AND pOSSESSION. At date of closing, Vendor 12. shall execute and deliver its warranty deed conveying the Real Property in the same condition as · * J9484:9I 47:42033:2:JEFFERSONVILLE it is now, ordinary wear and tear excepted, and free and clear of all liens and encumbrances, and a Vendor's Affidavit in a form acceptable to Purchaser and the title insurance company issuing the Owner's Policy of Title Insurance. Possession of the Real Property shall be delivered to Purchaser on the date of closing. 13. BROKERAGE~FEE. The parties hereby represent and warrant to each other that no brokerage fees are payable by either party as a result of this sale. 14. DEFAULT. If Vendor violates or defaults under any of the terms or provisions of this Option to Purchase Real Estate, Purchaser shall be entitled to specifically enforce the provisions hereof in addition to any other remedy available at law or in equity. Either party shall indemnify and pay to the prevailing party all costs and expenses, including, but not limited to, reasonable attorneys' fees incurred in any court action, including attorney fees that may be incurred on appeal, which the prevailing party may incur because of the other party's default or violation. CORPORATE AUTHORITY. To t-he extent applicable, the undersigned 15. persons executing this Option on behalf of the Vendor and Purchaser represent and certify that he/she is a duly elected or appointed officer or representative of either Vendor or Purchaser and has been fully empowered by proper resolution of the Board of Trustees, or other governing body, of either Vendor or Purchaser, to execute and deliver this Option; and that all necessary corporate or governmental action for the entering into of this Option has been taken and done. 16. MISCELLANEOUS. These covenants and agreements shall bind, and the benefits and advantages shall inure to the respective successors and assigns of the parties. J9484:9147:42033:2 :JEFFERSONV ILLE No modifications shall be made to this agreement except in writing and only if signed by both parties. J 9484:9147:42033:2: JEFFERSONVILLE 6 IN WITNESS WHEREOF, this Agreement has been executed on the dates set forth below. DEPARTMENT OF REDEVELOPMENT CITY OF JEFFERSONVILLE: BY: TITLE: THE BOARD OF TRUSTEES OF CLARK MEMORIAL HOSPITAL BY: TITLE: STATE OF INDIANA ) )ss COUNTY OF CLARK ) Before me, the undersigned Notary Public, in and for said county and state, personally appeared _, the of the Department of Redevelopment for the City of Jeffersonville, Indiana, who acknowledged execution of the foregoing document. WITNESS my hand and Notarial Seal this ~ day of ,2005.' My Commission expires: Notary Public Printed: My County of Residence is' STATE OF INDIANA COUNTY OF CLARK ) ) ss ) J9484:9147:42033:2 :JEFFERSONVILLE Before me, the undersigned Notary Public, in and for said county and state, personally appeared _, the of clark Memorial Hospital, who acknowledged execution of the foregoing document. WITNESS my hand and Notarial Seal this day of ,2005. My Commission expires' My County of Residence is: Notary Public Printed: This instrument prepared by: J. Spencer Harmon STITES & HARBISON PLLC 323 East Court Avenue P.O. Box 946 Jeffersonville, IN 47131 (812) 282-7566 J9484:9147:42033 '2: JEFFERS ONVILLE