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Home My WebLink AboutP24 KC PROPCOSETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement is made and entered into this II-11%/day of May 2010 by and between the City of Carmel "Carmel and KC Propco, LLC "KC Propco Recitals 1. Carmel is a municipality duly organized and existing pursuant to the laws of the State of Indiana. 2. Pursuant to a certain deed dated July 8, 2003 and recorded as instrument number 200300065303, KC Propco was granted an ownership interest in certain real estate located in Section 6, Township 17 North, Range 4 East in Hamilton County, Indiana (the "KC Propco Real Estate A true and accurate copy of the legal description of the KC Propco Real Estate is attached hereto as Exhibit A. 3. Pursuant to Indiana law, Carmel is entitled to exercise the power of eminent domain. 4. Pursuant to a lawsuit captioned City of Carmel v. KC Propco, LLC, Cause No. 29D01- 0803 -PL -286 (the "Condemnation Lawsuit Carmel is seeking to acquire or appropriate fee simple title to the KC Propco Real Estate to accommodate a road improvement project. 5. Carmel and KC Propco, among other things, dispute the value of the KC Propco Real Estate. 6. After consulting with their legal counsel, Carmel and KC Propco have agreed to resolve all of their disputes concerning (a) the KC Propco Real Estate, and (b) the Condemnation Lawsuit without the expense, uncertainty, and necessity of additional litigation, to buy their peace without admitting any liability, and to settle all possible claims therein on the basis hereinafter stated. NOW THEREFORE, in consideration of the promises and covenants expressed herein, Carmel and KC Propco represent and agree as follows: 1. Settlement Terms. In consideration of the sum of One Million Two Hundred Thousand Dollars and No Cents ($1,200,000.00) (the "Settlement Amount paid by or on behalf of Carmel and in accordance with the terms of this Settlement Agreement, KC Propco shall (a) convey all of its interest in the KC Propco Real Estate to Carmel by a Quitclaim Deed in the form attached hereto as Exhibit B, (b) provide a Partial Release of Mortgage in the form attached hereto as Exhibit C, (c) execute a Sales Disclosure Form in the form attached hereto as Exhibit D, (d) provide the W -9 attached hereto as Exhibit E, and (e) execute the Agreed Findings and Judgment in the form attached hereto as Exhibit F. It is further understood and agreed that KC Propco shall be responsible for and satisfy all property taxes, if any, on the KC Propco Real Estate which it is legally obligated to pay. 2. Settlement Proceeds. Carmel and KC Propco acknowledge that the Settlement Amount to be paid by or on behalf of Carmel already has been deposited with the Clerk of the Hamilton County Superior Court and, thereafter, withdrawn by KC Propco. 3. The KC Propco Real Estate. Except as set forth in Paragraph 1 and those matters of public record, KC Propco has not executed or permitted anyone on its behalf to execute any conveyance, mortgage, lien, lease, security agreement, financing statement, or encumbrance of or upon the KC Propco Real Estate. Further, KC Propco has made no contract to sell all or part of the KC Propco Real Estate to anyone other than Carmel. To the best of KC Propco's knowledge, there are no unpaid claims for labor done upon or materials furnished for the KC Propco Real Estate in respect of which liens have been or may be filed. 2 4. Resolution Of The Condemnation Lawsuit. Within a reasonable time after the execution of this Settlement Agreement, Carmel and KC Propco represent and warrant that they will file the Agreed Findings and Judgment, thereby resolving the Condemnation Lawsuit. 5. Outstanding Claims. Carmel and KC Propco hereby represent that they know of no claims, rights, demands, or causes of action which they have or may have against each other or each others agents, employees, officers, directors, attorneys, representatives, insurers, successors, or assigns arising out of or relating to the Condemnation Lawsuit, Carmel's road improvement project, or the KC Propco Real Estate other than those claims, rights, demands, or causes of action which are being released and discharged pursuant to this Settlement Agreement. 6. Continuing Cooperation. To the extent questions, concerns, or disputes develop concerning the interest transferred pursuant to the Quitclaim Deed attached hereto as Exhibit B, the Partial Release of Mortgage attached hereto as Exhibit C, the Sales Disclosure Form attached hereto as Exhibit D, the W -9 attached hereto as Exhibit E, the Agreed Findings and Judgment attached hereto as Exhibit F, or the intent of Carmel or KC Propco under the terms of this Settlement Agreement, then Carmel and KC Propco shall cooperate to resolve the same in a prompt manner. Where appropriate, Carmel and KC Propco shall agree upon and execute additional documentation necessary to resolve any such questions, concerns, or disputes. 7. No Admission Of Liability. By entering into this Settlement Agreement, Carmel and KC Propco understand and agree that they are compromising disputed claims set forth in the Condemnation Lawsuit and are neither admitting any liability nor agreeing upon the fair market value of the KC Propco Real Estate. 8. Attorneys' Fees and Costs. Carmel and KC Propco shall bear their own attorneys' fees and costs incurred and associated with the Condemnation Lawsuit. 3 9. Entire Agreement. This Settlement Agreement contains and embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings, oral or written, relating to the subject matter of this Settlement Agreement. No modification or waiver of the terms and conditions contained herein shall be of any force and effect unless such modification or waiver shall be in writing and signed by Carmel and KC Propco or their agents, representatives, successors, or assigns. 10. Severability. If any term or provision of this Settlement Agreement shall be deemed to be prohibited, invalid or unenforceable in any jurisdiction, such a provision shall be deemed ineffective only to the extent of such prohibition or unenforceability and without invalidating the remaining provisions hereof or affecting the validity or enforceability of the same, and all such remaining terms and provisions shall remain in full force and effect. 11. Governing Law and Jurisdiction. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. Jurisdiction for any dispute concerning this Settlement Agreement shall be in the Circuit or Superior Court of Hamilton County, Indiana. 12. Acknowledgment. This Settlement Agreement is the result of negotiations, and no particular person(s) or entity(ies) shall be deemed to be the drafter of this Settlement Agreement. By signing this Settlement Agreement, Carmel and KC Propco represent and warrant that: (a) they are authorized to enter into and execute this Settlement Agreement; (b) the information furnished in this Settlement Agreement is true and accurate; (c) they have read this entire Settlement Agreement; (d) they understand the terms and conditions of this Settlement Agreement as well as the consequences of entering into this Settlement Agreement; (e) they have knowingly and voluntarily entered into this Settlement Agreement; (f) they have been 4 represented by an attorney in connection with entering into this Settlement Agreement; and (g) this Settlement Agreement shall inure to the benefit of and be binding upon Carmel and KC Propco and their agents, representatives, insurers, successors, or assigns. The City of Carmel KC Propco, LLC By: Name Printed: S C Title: 1560793 6. Al Townsend BOSE MCKIN EY EVANS LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Attorneys for the City of Carmel f By: Name Printed: arc- Pyes Title: Vt', eac; li l-i S 1 Thom es sole FROST BROWN TODD LLC 201 N. Illinois Street, Suite 1900 P.O. Box 44961 Indianapolis, IN 46244 Attorneys for KC Propco, LLC APPROVE? By LE RTMENT DATE• LO SIGNATURE: 5 Exhibit A Project: 07 -08 Parcel 24 Real property in the ('ity of Carmel, County of Hamilton, State of Indiana. described as follows: Sheet I of I Fee Simple Part of the Southeast Quarter of Section 6. Township 17 North. Rangc 4 East. Hamilton County. Indiana. more particularly described as follows: Beuinninu at a point on the South Linc of said 1/4 Section, distant 1044.20 feet measured North 39 deuces 44 minutes West along said South Line from the Southeast Corner thereof: running thence North 89 dcgrces 44 minutes West and alone said South Line 305.35 feet; thence North 0 degrees 16 minutes East 17.09 feet to the Easterly right -of -way of Keystone Avenue; thence North 34 degrees 33 minutes West and along said right -of -way line 44.80 feet: thence North 4 deuurecs 19 minutes 15 seconds East and along said right -of -way Zinc 196.75 feet; thence South 89 degrees 44 minutes East 344.92 feet; thence South 0 deuces 08 minutes 07 seconds East 250 feet to the Point of Beginning. This description was prepared for the City of Carmel, Indiana by Tracy L. McGill, Indiana Registered Land Surveyor, License Number LS20500009, on the 20` day of December, 2007. G« L. 11n� No. 20500009= STATE OF D EXHIBIT