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HomeMy WebLinkAboutSettlement Agreement and Release DRAFT 12-20-10 Fi \very t\ I 0 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement is made and entered into this day of December, 2010, by and between the City of Carmel "Carmel and Bush Development Company, L.P. "Bush Development Recitals 1. Carmel is a municipality duly organized and existing pursuant to the laws of the State of Indiana. 2. Bush Development Company, L.P. owns certain real estate in Section 6, Township 17 North, Range 4 East in Hamilton County, Indiana (the "Bush Real Estate 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.Bush Development Company, L.P., Fifth Third Bank, and. Fannie Mae, Cause No. 29D01- 0902 -PL -192 (the "Condemnation Lawsuit Carmel is seeking to acquire 0.291 acre of real estate from Bush Development to accommodate a road improvement project (the "Subject Real Estate A true and accurate copy of the legal description of the Subject Real Estate is attached hereto as Exhibit A. 5. Carmel and Bush Development, among other things, dispute the value of the Subject Real Estate and other issues set forth in the Condemnation Lawsuit. 6. After consulting with their legal counsel, Carmel and Bush Development have agreed to resolve all of their disputes concerning (a) the Bush Real Estate, (b) the Subject Real Estate, and (c) 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 Bush Development represent and agree as follows: E r 1. Financial Settlement Terms. In consideration of the sum of Five Hundred Thousand Dollars and No Cents ($500,000.00) (the "Settlement Amount paid by or on behalf of Carmel and in accordance with the terms of this Settlement Agreement, Bush Development shall (a) convey a fee simple interest in the Subject Real Estate, free of all liens and encumbrances, to Carmel by a Warranty 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 in the form 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 Bush Development shall be responsible for and satisfy all property taxes, if any, on the Subject Real Estate which accrued before the date of this Settlement Agreement. 2. Additional Settlement Terms. Carmel shall undertake the necessary efforts to modify or amend the appropriate ordinance or ordinances so that the building located at 3002 Warren Way, the Office and Clubhouse located at 3008 Warren Way, and the multi -unit parking garage located on the northwest corner of the Bush Real Estate are compliant with regard to the setback requirements from 116' Street and Keystone Parkway. Carmel also shall provide the administrative support and cooperation necessary to assist Bush Development in its efforts to obtain a variance authorizing Bush Development to construct a 6' wall near 116 Street and Keystone Parkway (in the same location where Bush Development used to maintain a fence) in an effort to screen the Bush Real Estate from the roundabout constructed as part of the road improvement project. Carmel also shalt 'provide the administrative support and cooperation necessary to assist Bush Development in its efforts to construct a sign as part of the 6' wall. The sign shall be for the limited purpose of advertising the Woodland Springs Manor Apartments and 2 shall be located in the same area as the Woodland Springs Apaituients sign that used to exist before the road improvement project. Bush Development shall be responsible for all of the costs and expenses associated with obtaining the variance for the 6' wall, obtaining the necessary approval to construct a sign as part of the 6' wall, constructing and maintaining the 6' wall, and constructing and maintaining the sign as part of the 6'wall. 1 Settlement Proceeds. Carmel and Bush Development acknowledge that a significant portion of the Settlement Amount to be paid by or on behalf of Cannel already has been deposited with the Clerk of the Hamilton County Superior Court. Specifically, Carmel has deposited Two Hundred Ninety Three Thousand Dollars and No Cents ($293,000.00) with the Clerk of the Hamilton County Superior Court. As such, Carmel and Bush Development shall cooperate to have the funds on deposit with the Clerk of the Hamilton County Superior Court, together with any interest thereon, delivered to Bush Development and Carmel represents and warrants that it will take all of the appropriate and necessary actions required in order to fund the balance of the Settlement Amount as soon as practicable. 4. The Subject Real Estate. Bush Development 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 Subject Real Estate. Further, Bush Development has made no contract to sell all or part of the Subject Real Estate to anyone other than Carmel. To the best of Bush Development's knowledge, there are no unpaid claims for labor done upon or materials furnished for the Subject Real Estate in respect of which liens have been or may be filed. 5. Resolution Of The Condemnation Lawsuit. Within a reasonable time after the execution of this Settlement Agreement, Carmel and Bush Development represent and warrant 3 that they will file the Agreed Findings and Judgment, thereby resolving the Condemnation Lawsuit. 5. Outstanding Claims. Carmel and Bush Development 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, the Bush Real Estate, or the Subject 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 fee simple interest transferred pursuant to the Warranty 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 Bush Development under the terms of this Settlement Agreement, then Carmel and Bush Development shall cooperate to resolve the same in a prompt manner. Where appropriate, Carmel and Bush•Development 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 Bush Development 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 Subject Real Estate. 4 8. Attorneys' Fees and Costs. Carmel and Bush Development shall bear their own attorneys' fees and costs incurred and associated with the Condemnation Lawsuit. 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 Bush Development 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 Bush Development 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 5 f a 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 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 Bush Development and their agents, representatives, insurers, successors, or assigns. The City of Carmel By: Name Printed: Title: Alan S. Townsend BOSE MCKINNEY EVANS LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Attorneys for the City of Carmel Bush Development Company, L.P. By: Name Printed: Title: Zeff Weiss ICE MILLER. LLP One American Square, Suite 2900 Indianapolis, IN 46282 Attorneys for Bush Development Company, L.P. 1793305 6