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Home My WebLink AboutIllinois Street - JEC Partnership ROW Settlement SETTLEMENT AGREEMENT This Settlement Agreement (this "Agreement") is made this_day of December, 2012, by and between The City of Cannel, Indiana, ("c&")") and JEC Partnership II, LLC, an Indiana limited liability company("JQ"). RECITALS: WHEREAS, JEC is the fee simple owner of a parcel of real estate located in the City of Cannel,Hamilton County, Indiana and containing approximately 18.565 acres;and WHEREAS, on September 17, 2012, City filed its Lis Pendens and Complaint to condemn an approximately 4.530 acre portion (the "4.530 Acre Parcel") of said 18.565 acre parcel in the Hamilton Superior Court No. 1 as cause no. 29D01-1208-PL-8155 (the "Action"); and WHEREAS, City has heretofore paid into court the stipulated sum (the "Deposit") of Two Hundred Eighty Thousand and 00/100 Dollars ($280,000.00) representing a portion of the overall value of the 4.530 Acre Parcel and which amount was withdrawn by JEC per order of said court dated September 20,2012;and WHEREAS, in addition to the 4.530 Acre Parcel, the parties have determined that it is acceptable and desirable for the City to acquire other real estate owned by JEC, to-wit: (a) an additional parcel of approximately 0.49 acres, (b) an additional parcel of approximately 0.333 acres and (c)an additional parcel of approximately 0.098 acres(herein,the "0.098 Acre Parcel"), all of which parcels are contiguous to one another and/or the 4.530 Acre Parcel (collectively,the 4.530 Acre parcel and such parcels described in clauses (a), (b) and (c) of this Recital shall be referred to herein as the"Property"); and WHEREAS, the Property is depicted on Exhibit A attached hereto and incorporated herein by this reference, and shall be deeded by JEC to City by special warranty deed (the "Deed") in form and substance set forth on Exhibit B attached hereto and incorporated herein; and WHEREAS, the parties have determined that additional compensation for the Property shall be paid by City to JEC in full settlement of the Action as more particularly described herein. NOW, THEREFORE, in consideration of the foregoing recitals all of which are incorporated herein by this reference, the following mutual promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties,the parties agree as follows: 1. Closing. On December_,2012,(the"Closing Date")the following shall occur: a. City shall pay to JEC the sum (the "Remaining Balance") of One Million Five Hundred Fifteen Thousand Three Hundred Ninety-Five and 00/100 Dollars($1,515,395.00)1.;and b. As to the 0.098 Acre Parcel,JEC will provide to City a release,in the form substantially like that of Exhibit C hereto, of that certain Restrictive Covenant in favor of Gershman Brown Crowley, Inc., dated June 23, 2011, and recorded on July 7, 2011, as Instrument No. 2011032579 in the office of Recorder of Hamilton County,Indiana. c. JEC shall deliver to City the Deed which Deed shall be subject only to the exceptions to title described therein. d. City shall cause to be prepared, at City's expense, a current commitment for an ALTA version owner's policy of title insurance issued by Chicago Title Insurance Company in an amount of equal to the sum of the Deposit plus the Remaining Balance and containing only those Schedule B exceptions shown on the Deed and otherwise in a form acceptable to City as of the Closing. City shall be responsible for the cost and expense of said title commitment and shall pay the premium therefor at Closing upon simultaneous issuance of a pro-forma policy to City. e. The parties shall cause to be prepared, executed and delivered by and between them an Indiana sales disclosure form for the Property and shall deliver to one another such other documents as a party or its counsel may reasonably request. 1 Any settlement fees charged by the title insurer to close the transaction shall be paid by City. 2. ileal Property Taxes. The real property taxes for the Property due and payable in 2012 and 2013 shall be and remain the responsibility of JEC. Thereafter, such taxes in respect of the Property shall be the responsibility of City. 3. Compensation of Court Appointed Appraisers. City shall pay the appraisers appointed by the court in the Action such amount as determined by the court. 4. Dismissal of Action. Promptly following the Closing Date, the parties shall file a Stipulation in a form substantially like that of Exhibit D hereto, which Stipulation shall agree to and seek dismissal of the Action, with prejudice, and without costs, attorneys' fees, or expenses. Concurrent with filing the Stipulation, the parties shall also tender and seek court entry of an Order in a form substantially like that of Exhibit E hereof. 'Determined as follows:$1,750,000 for real estate,$5,000 for loss of farm crops,$40,395 statutory interest,with credit for the previously paid$280,000. 2 5. Release. JEC acknowledges that none of the real property owned by JEC or any of its affiliates, including without limitation, JEC Partnership, L.P., adjacent to or in near proximity to the Property is adversely impacted by the Action in any manner as contemplated by the Indiana Eminent Domain Act codified at I.C. 32-24-1-1 et seq, this Agreement or otherwise as to the taking, which is the subject of the Action (the "Project") and JEC fully and forever releases and discharges City and its successors, assigns, employees, attorneys, and representatives from any and all actions, causes of action, claims, and demands of whatever kind or nature relating in any way to any and all known or unknown losses or damages sustained or allegedly sustained to such property as a result of any and all actions, conduct, facts and circumstances giving rise to the Action or this Agreement. However, nothing herein shall be deemed to be a release of any nature whatsoever by JEC as to any claims which may arise as a result of the negligent or defective construction of the Project, or any claims hereinafter arising as a result of any third party's use of the roadway and/or improvements which are otherwise the subject of the Project. In addition,notwithstanding the foregoing,each party reserves any and all rights to bring an action or to assert a claim to remedy a breach of this Agreement by the other party. In the event that a party prevails in an action or claim to remedy a breach of this Agreement, such prevailing party shall be entitled to reimbursement for all attorneys' fees and costs incurred. This Agreement chall not be admissible for any purpose in any action, lawsuit,or proceeding, except as necessary to enforce the terms of this Agreement or to prove the settlement of the issues in the Action. 6. Additional Compensation. The City and JEC hereby acknowledge and agree that the Two Hundred Eighty Thousand Dollars ($280,000.00) previously withdrawn by JEC pursuant to an Order issued in the Action, shall remain the sole property of JEC and that the same is not refundable in any way. Further, the parties hereby acknowledge and agree that the transactions which are the subject of the Action,and this Settlement Agreement, are made under threat of the City's exercise of the power of eminent domain. 7. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. Any suits, claims, or other legal proceedings brought to enforce the terms of this Agreement shall be brought and may only be commenced and maintained in the Courts in the State of Indiana located within Hamilton County. 8. Binding on Successors. This Agreement shall inure to the benefit, and be binding upon,the respective heirs, successors and assigns of the parties. 9. Counterpart Execution. This Agreement, including its signature and notary pages, may be prepared and executed in multiple counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one agreement. 3 IN WITNESS WHEREOF, the parties have executed, or caused this Agreement to be executed as of the date set forth hereinabove. CITY JEC THE CITY OF CARMEL,INDIANA JEC PARTNERSHIP II, LLC By: JEC Partnership,LP, ,/ its sole member �7 r By: Pittman Management,LLC, Printed: Ja*rS &fabk4or.00 i • •.le general partner Title: red/Th' By: itl, ,Al 1/a L IJohn Pittman,Authorized Agent 1335258v3 4