HomeMy WebLinkAbout239993 12/09/2014 CITY OF CARMEL, INDIANA VENDOR: 00350040
ONE CIVIC SQUARE HALL RENDER KILLIAN HEATH & LYMAAHECK AMOUNT: $...292,000.00'
CARMEL, INDIANA 46032 TRUST ACCOUNT ATTN:DAVID HONING CHECK NUMBER: 239993
1 AMERICAN SQUARE SUITE 2000 CHECK DATE: 12/09/14
INDIANAPOLIS IN 46282
DEPARTMENT ACCOUNT PO NUMBER INVOICE NUMBER AMOUNT DESCRIPTION
212 4462865 FARMERS MUTU 292,000.00 ILLINOIS STREET
Lustig, Kate
From: Kashman,Jeremy M
Sent: Monday, December 08, 201411:38 AM
To: Lustig, Kate
Subject: FW: Farmers
Jeremy Kashman, PE
City Engineer
From: Honig, David B. [mailto:dhonig@hallrender.com]
Sent: Monday, December 08, 2014 11:36 AM
To: Kashman,Jeremy M
Subject: RE: Farmers
Jeremy,
According to the Court docket,the City has already deposited $1,308,000.This should have generated some interest.
Please direct$292,000 to "Hall Render Killian Heath & Lyman Trust Account," addressed to me.We will deposit the
money.Then, once we have the total amount actually due,we will pay that amount and return the remainder to the
City.
David
David B.Honig
WNHALL
RENDER,
KiLLIAN €-IE rH&LYiI A
direct 317.977.1447
fax 317.633.4878
email dhonig(a)hallrender.com
web www.hallrender.com
One American Square,Suite 2000
Box 82064, Indianapolis, IN 46282
For the latest in health care industry news and legal updates, visit us at www.hailrender.com. For False Claims
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SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlettiet:t-Agr•eentettt and tYltttttal Release(Agreement) is entered into as of the Y*clay
of 2GCwu�tit' ,2014,by and between the City of Carrel,Indiana(City of Carmel)and Indiana "
Farmers Mutual Insurance Company(Fanners Mutual)with reference to and incorporation of the
following:
RECITALS:
A. Unless otherwise indicated,capitalized terms and phrases used in this Agreement shall have the
following meanings:
a. '.Agreement"means this Settlement Agreement and Mutual General Release by and
between City of Carmel and Farmers Mutual.
` b.tt Farmers Mutual means Indiana Farmers Mutual Insurance Com an owning -'
p y,o� mug propcil}ur
City of Carmel,,Indiana,located at I0 W. 106`t'Street;.and as used in Sections 5(a)and
5(b),Farmers Mutual also refers-to and any related entities,including its assigns,parent,
subsidiaries,employees,officers,,or directors of Farmers Mutual.
c. "Claims"refers to and includes all actual-and potential claims,rights,causes ofactloll,
rights of action,rights of indemnity,rights of contribution,liens and remedies of every
nature whatsoever,regardless of whether-the same are or any of them is at law,in equity
or otherwise,regardless of whether the same are or an of the same is known
Y or unknown
at the present time,except as otherwise excluded herein.
d. "Litigation"means the proceeding pending between the parties in City of Carmel v.
Indiana Faimers Mutual Insurance Company, in Hamilton Superior Court 1 which action
is docketed as Cause No.29D01-1303-PL-2933.
e. "Obligations"refers to arc(includes all actual and potential obligations,duties,'liabilities,
damages,costs,fees,expenses and debts of every nature whatsoever,regardless of.
whether the salve are..or any of the same is known or unknown at the present time.
f. "Property"shall mean the property more specifically described in'tlie attached Exhibit A
—a legal description of the land condemned and appropriated by the City of Carmel.
g. "SubJect Matter ]Weans and includes all facts,occurrences and/or circumstances
affecting both City Of Carmel and Farmers Mutual of,pertaining to oral•ising in
connection with the City of Cai•mel's acquisition of real estate for the Illinois Street
prOJect.
B. City o£Carinel 6as-previously instituted le al action a ainst F
g _g auucr's Mutual seekul the
condemnation of certain real estate f ,
al the.I11ii1ois Street project,� ct.The parties aro4v desire to settle
their differences and terminate the Litigation.
1
NOW THEREhORE,the parties to this Agreement agree as follows:
1. Consideration:"The consideration for entering into this Agreement is the payment of the sum
specified in Section 3 and the combination of mutual promises and releases of the parties herein
contained,the sufficiency and adequacy of which are hereby acknowledged.
2. Termination of Litigation:The Litigation sllall be terminated by the City of Carmel by the filing
of appropriate pleadings with the Court.Each party shall pay its own costs and attorneys' fees.
3. Payment:
a. City of Carmel sllall pay to Farmers Mutual,the total.sutn.of$1,600,000.00 representing
just coinpensation forthe fee simple acquisition of the Property acquired by City of
Carmel for use in tht Illinois Street project as outlined below.
i. Alnount previously deposited with the Court: $1.,308,000+interest accrued
1. Already withdrawn by Farmers Mutual: $417,000
2. Remainder in Court Account: $891,000+interest accrued
ii; Additional amount to be paid directly to Fanners Mutual by the City of Carmel
shall be the difference between: the$1,308,000+interest accrued and
$1,600,000.60.
b. The payments listed above in 3(a)represents all payments made or to be made to Farmers
Mutual by the City of Carmel.
4. Execution of Documents: Upon receipt of this signed Agreement the funds described in
Paragraph 3(a)(ii)'will be made directly to Farmer by the City of Cannel on or before December
3_l,2014.
rn wAc,,,ccQ
S, General Releases:
a. Release by Fanners Mutual: Except as set forth and preserved in.this Agreement,
Fanners Mutual hereby releases,remises,acquits and forever-diselmrges.City.of Cannel
from any and all Claims which they have against City of Carmel and of and from any and
all Obligations which may be due or owed to them by City of Carmel on account orally
act,omission, instrument,breach,conduct,event,injury or damage arising frolll,under or
With respect to:the litigation or the Subject Matter,regardless of whether any such
Claim
or Obligation be at the present time known or unknown,foreseen or unforeseen,actual or
)otential. X expressly agrees that the payments identified in Paragraphs 3(a)represent
dust compensation for the fee simple total take acquisition by City oFCarmel for the
w Illinois Street project.
b. No Admission of Liability: Each party understands and agrees that:
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i. The object of this Agreement is the complete compromise of all disputed Claims
and Obligations arising from,under or with respect to the Litigation or the
Subject Matter;
ii. The consideration given and the responsibilities undertaken pursuant to this
Agreement are not to be construed as admissions of tiny liability on the part of
any party, all such liability being expressly denied;and
iii. The parties intend by this Agreement to avoid further litigation and to have their
peace.
A-tz`r 1 e's
c. Absolute Bar:Fat:lle,�al•shall not attempt to enforce(in any legal,equitable,
administrative or other-proceeding)any released Claim or Obligation covered by this
Agreemetlt.This Agreement and the introduction thereof into evidence shall constitute an
absolute and unconditional bar to any such attempted enforcement.Any such attempted
enforcement in violation of this provision shall be considered to be an act of tortuous bad_
faith entitling the opposing party to an award of exemplary damages and reasonable
attorney fees in addition to such,other relief as may be granted to such party.
6. Representations and Warranties:Each party represents and warrants to the other as follows:
.a. Each party has the full right and power to execute,deliver anis perform this Agreement
according to its terms,without the necessity of consent of or joinder with Another;when
executed and delivered,this Agreement shall constitute a valid and binding agreement,
enforceable according of its terms;
b. Each party has had the opportunity to obtain advice of independent counsel in connection
with the Litigation and the Subject matter and in connection with tile execution,delivery
and performance of this Agreement;
c. The circumstance that any fact,estimate or assumption made in executing this Agreement
(other than the assumption that this Agreement wilt be fully performed according ofits
terms)may now be,or in the future may prove to be,inaccurate,unreasonable,
unfounded,ill-advised or otherwise different from that as currently-perceived will not
aftcct,the binding nature or enforceability of[his Agreement; -
d. No Claini or Obligation.refer•red to in the foregoing releases contained in this Agreement
has been assigned,transferred,hypothecated,pledged,mortgaged or set over in any
manner whatsoever,in whole or in part, to any third person not a party to this Agreement,
and each party hereto has the sole and exclusive right to release wid discharge all of the
Claims and Obligations;and
e.
This Agreement is executed and delivered without reliance upon any statement,
representation,promise,illduCelli clit,understanding or agreement by or on behalf of airy
party hereto or by or on behalf of any representative or agent emploYed by either of them,
other than the matters expressly set forth herein.
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7. General Provisions:
a. Governing Law:This Agreement shall be governed by the laws of the State of Indiana,
and any legal action regarding the breach or enforcement of this Agreement shall be
litigated in a court of proper jurisdiction over Hamilton County, Indiana.
b. Binding Effect:The provision of this Agreement shall be binding on and shall inure to
the benefit of the respective successors and assigns of the parties.
c. Effectuation: Following the effective date hereof,each party shall take such action and
execute such additional documentation that may be reasonably necessary or appropriate
to effectuate the objectives anis provision of this Agreement.
d. Cost And Attorneys Fees: Should any litigation be commenced between(lie parties to this
Agreement concerning this Agreement,or the rights and duties to either party in relation
thereto,tlfe party prevailing in such litigation shall be entitled,in addition to such other
relief that may be granted,to a reasonable sutra as and for its attorneys' fees in such
litigation which shall be detennined by the court in such litigation or in a separate action
brought for that purpose.
e. Etfeetive Date:This Agreement may be executed in counterparts,all of which when
taken together sha11 be deemed one original agreement,and will be effective,when all
parties have executed and delivered this Agreement,on and as of the date first above
written.
f Entire Agreement:This Agreement constitutes the entire Agreement and understanding
between the parties with respect to the Subject Matter hereof and may not be modified or
amended except in writing signed by all of the parties.
IN WITNESS WHEREOF,the parties have executed,or caused to be executed by the
undersigned thereunto duly authorized,and delivered this Agreement as of the day and year first
above written.
CITY OF WMEL,by and tht•ough Steve Engelking
Indiana F ors Mutual Insurance Company
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Prescribed by State Board of Accounts City Form No.201(Rev.1995)
ACCOUNTS PAYABLE VOUCHER
CITY OF CARMEL
An invoice or bill to be properly itemized must show: kind of service, where performed, dates service rendered, by whom,
rates per day, number of hours, rate per hour, number of units, price per unit, etc.
Payee
Hall Render Killian Heath &Lyman Trust Account Purchase Order No.
Attn: David B. Honig One American Square, Suite 2000 B( Terms
Indianapolis, IN 46282 Date Due
Invoice Invoice Description
Date Number (or note attached invoice(s)or bill(s) Amount
12/8/2014 0 Farmers Mutual Insurance Company settlement $ 292,000.00
Total $ 292,000.00
1 hereby certify that the attached invoice(s), or bill(s), is (are)true and correct and I have audited same in accordance
with IC 5-11-10-1.6.
,20
Clerk-Treasurer
VOUCHER NO WARRANT NO.
Hall Render Killian Heath & Lyman Trust Account ALLOWED 20
Attn: David B. Honig One American Square, Suite IN SUM OF$
Indianapolis, IN 46282
$ 292,000.00
ON ACCOUNT OF APPROPRIATION FOR
Board Members
Po#or INVOICE NO. ACCT#/TITLE AMOUNT
DEPT# r I hereby certify that the attached invoice(s), or
0 0 212-4462865 $ 292,000.00 bill(s) is (are)true and correct and that the
materials or services itemized thereon for
which charge is made were ordered and
received except
r'
v�-
��� 12/8/2014
Signature
City Engineer
II
Cost Distribution ledger classification if Title
claim paid motor vehicle highway fund