206887 03/07/2012 CITY OF CARMEL, INDIANA VENDOR: 366069 Page 1 of 1
0 ONE CIVIC SQUARE BUSH DEVELOPMENT COMPANY CHECK AMOUNT: $207,000.00
r CARMEL, INDIANA 46032 CIO RICHARD HOCKEMA
221 E 4TH STREET SUITE 2310 CHECK NUMBER: 206887
CINCINNATI OH 45202
CHECK DATE: 317!2012
DEPARTMENT ACCOUNT PO NUMBER INVOICE NUMBER AMOUNT DESCRIPTION
920 4470302 207,000.00 116 /CARMEL DR R -O -W
I
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement is made and
entered into this I" day of December, 2011, by and between the City of Cannel "Carmel and
Bush Development Company, L.P. (also known as Bush Development Company, an Indiana
limited partnership) "Bush Development').
Recitals
1. Carmel is a municipality duly organized and existing pursuant to the laws of the
State of Indiana.
2. Bush Development 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 has exercised it power of eminent domain to acquire 0.291 acre of real estate
(the "Subject Real Estate from Bush Development to accommodate a road improvement
project (the "Road Project'). A true and accurate copy of the legal description of the Subject
Rea] 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. Upon completion of the transfer of the Subject Real Estate to Carmel under threat
of eminent domain, a number of improvements (a) located on the remaining Bush Real Estate
may benefit from variances and ADLS approval, and (b) proposed to be located on the remaining
Bush Real Estate will require variances and ADLS approval in order to be constructed.
7. 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:
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 at Closing (defined below) deliver to Carmel the following duly executed documents: (a) a
Warranty Deed in the form attached hereto as Exhibit B (b) a Partial Release of Mortgage in the
form attached hereto as Exhibit C (the "Partial Release (c) a Sales Disclosure Form in the
form attached hereto as Exhibit D (d) a W -9 in the form attached hereto as Exhibit E (e) a
Vendor's Affidavit in the form attached hereto as Exhibit F (f) a Transferor's Certification of
Nonforeign Status Made Pursuant to Section 1445(b)(2) of the Internal Revenue Code in the
form attached hereto as Exhibit G and (g) the Agreed Findings and Judgment in the form
attached hereto as Exhibit H It is further understood and agreed that Bush Development shall be
responsible for the payment of all real taxes now outstanding against or which otherwise become
due and payable for the Subject Real Estate through and including the installments of real estate
taxes due and payable though December 31, 2012.
2. Additional Settlement Terms. Carmel shall provide the administrative support
and cooperation necessary to assist Bush Development in its efforts to obtain all variances and
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other approvals from the Carmel Board of Zoning Appeals, the Carmel Plan Commission, and
the Carmel Department of Community Services necessary to (i) make certain improvements on
the Bush Real Estate other than the Subject Real Estate (the "Remainder Real Estate
conforming under the Carmel Zoning Ordinance, and (ii) permit the construction of a six feet (6)
tall wall that may extend along the Keystone Parkway and 116 Street rights -of -way (the
"Wall only and include a new, lighted identification sign attached to such Wall (the "Sign all
as shown on the rendering attached hereto as Exhibit I and limited to the following:
a. Development standards variances to allow a reduced setback from the new right-
of-way for Keystone Parkway and/or 116"' Street and Green Belt area
encroachments for (i) the existing apartment building located on the Remainder
Real Estate closest to the new intersection of Keystone Parkway and 116 Street,
(ii) the existing clubhouse located on the Remainder Real Estate, (iii) the existing
tennis courts located on the Remainder Real Estate, (iv) the existing parking
spaces located on the Remainder Real Estate within thirty (30) feet of the new
right- of-way line for Keystone Parkway, (v) the existing community entrance
monuments at the entrance to the Remainder Real Estate from 116 Street and
the existing fence and signs east and west of such entrance, and (vi) an existing
garage located on the Remainder Real Estate along the Keystone Parkway right-
of-way.
b. Development standards variances to allow a reduced setback from the new right-
of-way for Keystone Parkway and I W h Street and Green Belt encroachments
along Keystone Parkway and 116`'' Street frontages for the construction and
maintenance of the Wall and the Sign, which Wall and Sign shall be in
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approximately the same location where Bush Development used to maintain a
sign, fence and landscaping. The Sign shall be for the limited purpose of
advertising the apartments located on the Remainder Real Estate, may include the
logo of the owner or manager, and shall be located in approximately the same
area as the Woodland Springs Apartments sign that used to exist before the Road
Project.
C. ADLS approval for the Wall and Sign.
All necessary variances and approvals required under this Paragraph 2 shall hereinafter be
referred to as the "Approvals." Bush Development, at its cost and expense, shall be responsible
for the preparation of all documents, drawings, renderings, designs, and applications necessary
for the Approvals.
3. Settlement Proceeds and Closing. No sooner than fifteen (15) days or more
than forty -five (45) days after all Approvals have been granted and approved by the applicable
governmental authority, Bush Development shall deliver to Carmel all documents required under
Paragraph 1 above and Carmel, no more than thirty (30) days after all of the documents are
delivered, shall deliver to Bush Development the Settlement Amount (the "Closing Carmel
and Bush Development acknowledge that a significant portion of 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. 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 the1unds on deposit
with the Clerk of the Hamilton County Superior Court, together with any interest thereon,
delivered to Bush Development at the Closing. The balance of the Settlement Amount due to
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Bush Development under this Settlement Agreement also shall be paid to Bush Development at
the Closing.
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
Closing, Carmel and Bush Development represent and warrant that they will file the Agreed
Findings and Judgment, thereby resolving the Condemnation Lawsuit,
6. 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, Canrnel's
Road 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.
7. Continuing Cooperation. To the extent questions, concerns, or disputes develop
concerning the documents referenced in Paragraph I 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
5
Development shall agree upon and execute additional documentation necessary to resolve any
such questions, concerns, or disputes.
8. 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.
9. Attorneys' Fees and Costs. Carmel and Bush Development shall bear their own
attorneys' fees and costs incurred and associated with the Condemnation Lawsuit.
10. 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.
11. 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.
12. 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.
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13. 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
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.
14. Condition Precedent. Carmel and Bush Development agree that this Settlement
Agreement is conditioned upon the final approval by the applicable governmental entities of all
Approvals referenced in Paragraph 2. Unless otherwise agreed, if Bush Development is unable
to obtain satisfactory approval of all Approvals within one hundred eighty (180) days after the
execution of this Settlement Agreement, this Settlement Agreement shall automatically terminate
and be of no further force or effect. Each party hereby agrees to take all action necessary to
allow the Approvals to be acted upon as soon as reasonably possible after the execution of this
Settlement Agreement.
7
The City of Car l
By:
Name rinte« 7
Title: L i 12 lf� ►S ��F'�
Alan S, Townsend
BASE McKuqmY EVANS LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
Attorneys for the City of Carmel
Bush Development Company, L.P.
By: M 1� (��1;�1 r�L_ �1L' C� 1�-. t_ tom'
Name Printed: ig
Title:,
7e e S
I E L L•LP
One Amerieawi Square, Suite 2900
Indianapolis, IN 46282
Attorneys for 1311sh Development Company, L.P.
1R'/5149
g
1875149/8824 -102
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
Bush Development Company Purchase Order No. NA
c/o Richard Hockema, 221 E. 4th Street Ste 2310 Terms
Cincinnati, OH 45202 Date Due
Invoice Invoice Description Amount
Date Number (or note attached invoice(s) or bill(s))
03/05/12 NA 07 -08 Keystone Parkway
116th Street
Parcel 33 $207,000.00
Total $207,000.00
1 hereby certify that the attached invoice(s), or bills(s), is (are) true and correct and I have audited same in accordance
with IC 5- 11- 10 -1.6.
20
Clerk- Treasurer
I I
VOUCHER NO. WARRANT N0,
Bush Development Company ALLOWED 20
c/o Richard Hockema, 221 E. 4th Street StE IN THE SUM OF
Cincinnati, OH 45202
207,000.00
s+ T11L-*.: -1' 6E1[30RE*
PO# or INVOICE NO. ACCT /TITLE AMOUNT Board Members
DEPT.#
NA NA 44470302 $207,000.00
1 hereby certify that the attched invoice(s), or
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
5 -Mar 20 12
$207,000.00 Signature
Cost distribution ledger classification if Cit En
claim paid motor vehicle highway fund Title