179523 11/18/2009 CITY OF CARMEL, INDIANA VENDOR: 363586 Page 1 of 1
ONE CIVIC SQUARE S D M B R, LLC CHECK AMOUNT: $20,395.50
CARMEL, INDIANA 46032 2810 E 116TH STREET
.off `o CARMEL IN 46033 CHECK NUMBER: 179523
CHECK DATE: 11/18/2009
DEPARTMENT ACCOUNT PO NUMBER INVOICE NUMBER AMOUNT DESCRIPTION
D20 4470302 20,395.50 116 /CARMEL DR R -O -W
]B®SE Alan S. Townsend
C Suite 2700
111 Monument Circle
T,� STS Indianapolis, IN 204
�/�v Direct Dial: (317) 684 -5-5225
Fax: (317) 223 -0225
E -Mail: ATownsend @boselaw.com
ATTORNEYS AT LAW
November 10, 2009
Sylvia "Skip" Tennancour
American Structurepoint, Inc.
7260 Shadeland Station
Indianapolis, IN 46256
Re: City of Carmel v. SDMBR, LLC, et al.
Cause No. 29D01- 0902 -PL -193
Dear Skip:
For your review and consideration, I am enclosing the following documents:
1. a fully- executed copy of the Settlement Agreement and Release by and between the City
of Carmel and SDMBR, LLC "SDMBR
2. the original Warranty Deed executed by Brian Chandler of SDMBR;
3. a copy of the Partial Release of Mortgage executed by a duly authorized representative of
Midland Loan Services, Inc.;
4. the original Sales Disclosure Form executed by Brian Chandler of SDMBR;
5. the original W -9 executed by Brian Chandler by SDMBR; and
6. a fully- executed copy of the Agreed Findings and Judgment.
Please take the necessary steps to record the conveyance documents that need to be recorded.
Additionally, this lawsuit was settled for $77,195.50, and SDMBR has already been paid $56,800.00.
Consequently, I need a check in the amount of $20,395.50 made payable to SDMBR. Upon receipt,
please forward the check to me and I will deliver it to counsel for SDMBR.
Please let me know if you have any questions. Othenvise, thanks in advance for your cooperation.
Sincerely,
Alan S. Townsend
AST /acw
Enclosures
cc: Mike McBride (without enclosures)
Jeremy Kashman (without enclosures)
1540607/8824 -104
111 Monument Circle, Suite 2700 1 Indianapolis, Indiana 46204 Main Telephone: 317 684 -5000 1 Main Fax: 317 684 -5173
www.boselaw.com
Form 11V 9 Request for Taxpayer Give form to the
(Rev. October 2007) Identification Number and Certification requester. Do not
Department of the Treasury send to the IRS.
Internal Revenue Service
Name (as shown on your income tax return)
SDMBR, LLC
Co Business name, if different from above
CL
c
0
M Check appropriate box: Individual/Sole proprietor
CL Corporation Partnership Exempt
Limited liability company. Enter the tax classification (D= disregarded entity, C= corporation, P= partnership) payee
0 2 Other (see instructions)
c Address (number, street, and apt. or suite no.) Requester's name and address (optional)
a v 2810 E. 116th Street
w
City, state, and ZIP code
Carmel, IN 46033
aa) List account number(s) here (optional)
U)
Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoid Social security numbe,
backup withholding. For individuals, this is your social security number (SSN). However, for a resident
alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is
your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3. or
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose Employer identification number
number to enter.
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. 1 am a U.S. citizen or other U.S. person (defined below).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct TIN. S e the instructions on p ge 4.
Sign Signature of '2S
Here I U.S. person Date v
General Instructions Definition of a U.S. person. For federal tax purposes, you are
considered a U.S. person if you are:
Section references are to the Internal Revenue Code unless
otherwise noted. An individual who is a U.S. citizen or U.S. resident alien,
A partnership, corporation, company, or association created or
Purpose of Form organized in the United States or under the laws of the United
A person who is required to file an information return with the States,
IRS must obtain your correct taxpayer identification number (TIN) An estate (other than a foreign estate), or
to report, for example, income paid to you, real estate s A domestic trust (as defined in Regulations section
transactions, mortgage interest you paid, acquisition or 301.7701 -7).
abandonment of secured property, cancellation of debt, or Special rules for partnerships. Partnerships that conduct a
contributions you made to an IRA. trade or business in the United States are generally required to
Use Form W -9 only if you are a U.S. person (including a pay a withholding tax on any foreign partners' share of income
resident alien), to provide your correct TIN to the person from such business. Further, in certain cases where a Form W -9
requesting it (the requester) and, when applicable, to: has not been received, a partnership is required to presume that
1. Certify that the TIN you are giving is correct (or you are a partner is a foreign person, and pay the withholding tax.
waiting for a number to be issued), Therefore, if you are a U.S. person that is a partner in a
2. Certify that you are not subject to backup withholding, or partnership conducting a trade or business in the United States,
provide Form W -9 to the partnership to establish your U.S.
3. Claim exemption from backup withholding if you are a U.S. status and avoid withholding on your share of partnership
exempt payee. If applicable, you are also certifying that as a income.
U.S. person, your allocable share of any partnership income from The person who gives Form W -9 to the partnership for
a U.S. trade or business is not subject to the withholding tax on purposes of establishing its U.S. status and avoiding withholding
foreign partners' share of effectively connected income. on its allocable share of net income from the partnership
Note. If a requester gives you a form other than Form W -9 to conducting a trade or business in the United States is in the
request your TIN, you must use the requester's form if it is following cases:
substantially similar to this Form W -9. The U.S. owner of a disregarded entity and not the entity,
Cat. No. 10231X Form W -9 (Rev. 10 -2007)
Form W Rev. 10 -2007) Page 2
The U.S. grantor or other owner of a grantor trust and not the 4. The IRS tells you that you are subject to backup
trust, and withholding because you did not report all your interest and
The U.S. trust (other than a grantor trust) and not the dividends on your tax return (for reportable interest and
beneficiaries of the trust. dividends only), or
Foreign person. If you are a foreign person, do not use Form 5. You do not certify to the requester that you are not subject
W -9. Instead, use the appropriate Form W -8 (see Publication to backup withholding under 4 above (for reportable interest and
515, Withholding of Tax on Nonresident Aliens and Foreign dividend accounts opened after 1983 only).
Entities). Certain payees and payments are exempt from backup
Nonresident alien who becomes a resident alien. Generally, withholding. See the instructions below and the separate
only a nonresident alien individual may use the terms of a tax Instructions for the Requester of Form W -9.
treaty to reduce or eliminate U.S. tax on certain types of income. Also see Special rules for partnerships on page 1.
However, most tax treaties contain a provision known as a Penalties
"saving clause." Exceptions specified in the saving clause may
permit an exemption from tax to continue for certain types of Failure to furnish TIN. If you fail to furnish your correct TIN to a
income even after the payee has otherwise become a U.S. requester, you are subject to a penalty of $50 for each such
resident alien for tax purposes. failure unless your failure is due to reasonable cause and not to
If you are a U.S. resident alien who is relying on an exception willful neglect.
contained in the saving clause of a tax treaty to claim an Civil penalty for false information with respect to
exemption from U.S. tax on certain types of income, you must withholding. If you make a false statement with no reasonable
attach a statement to Form W -9 that specifies the following five basis that results in no backup withholding, you are subject to a
items: $500 penalty.
1. The treaty country. Generally, this must be the same treaty Criminal penalty for falsifying information. Willfully falsifying
under which you claimed exemption from tax as a nonresident certifications or affirmations may subject you to criminal
alien. penalties including fines and /or imprisonment.
2. The treaty article addressing the income. Misuse of TINs. If the requester discloses or uses TINs in
3. The article number (or location) in the tax treaty that violation of federal law, the requester may be subject to civil and
contains the saving clause and its exceptions. criminal penalties.
4. The type and amount of income that qualifies for the
exemption from tax. Specific Instructions
5. Sufficient facts to justify the exemption from tax under the Name
terms of the treaty article.
Example. Article 20 of the U.S. -China income tax treaty allows If you are an individual, you must generally enter the name
an exemption from tax for scholarship income received by a shown on your income tax return. However, if you have changed
Chinese student temporarily present in the United States. Under your last name, for instance, due to marriage without informing
U.S. law, this student will become a resident alien for tax the Social Security Administration of the name change, enter
purposes if his or her stay in the "United States exceeds 5 your first name, the last name shown on your social security
calendar years. However, paragraph 2 of the first Protocol to the card, and your new last name.
U.S. -China treaty (dated April 30, 1984) allows the provisions of If the account is in joint names, list first, and then circle, the
Article 20 to continue to apply even after the Chinese student name of the person or entity whose number you entered in Part I
becomes a resident alien of the United States. A Chinese of the form.
student who qualifies for this exception (under paragraph 2 of Sole proprietor. Enter your individual name as shown on your
the first protocol) and is relying on this exception to claim an income tax return on the "Name" line. You may enter your
exemption from tax on his or her scholarship or fellowship business, trade, or "doing business as (DBA)" name on the
income would attach to Form W -9 a statement that includes the "Business name" line.
information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to Limited liability company (LLC). Check the "Limited liability
backup withholding, give the requester the appropriate company" box only and enter the appropriate code for the tax
completed Form W -8. classification "D" for disregarded entity, "C" for corporation, "P"
for partnership) in the space provided.
What is backup withholding? Persons making certain payments For a single- member LLC (including a foreign LLC with a
to you must under certain conditions withhold and pay to the domestic owner) that is disregarded as an entity separate from
IRS 28% of such payments. This is called "backup withholding." its owner under Regulations section 301.7701 -3, enter the
Payments that may be subject to backup withholding include owner's name on the "Name" line. Enter the LLC's name on the
interest, tax- exempt interest, dividends, broker and barter "Business name" line.
exchange transactions, rents, royalties, nonemployee pay, and
certain payments from fishing boat operators. Real estate For an LLC classified as a partnership or a corporation, enter
transactions are not subject to backup withholding. the LLC's name on the "Name" line and any business, trade, or
You will not be subject to backup withholding on payments DBA name on the "Business name" line.
you receive if you give the requester your correct TIN, make the Other entities. Enter your business name as shown on required
proper certifications, and report all your taxable interest and federal tax documents on the "Name" line. This name should
dividends on your tax return. match the name shown on the charter or other legal document
creating the entity. You may enter any business, trade, or DBA
Payments you receive will be subject to backup name on the "Business name" line.
withholding if: Note. You are requested to check the appropriate box for your
1. You do not furnish your TIN to the requester, status (individual /sole proprietor, corporation, etc.).
2. You do not certify your TIN when required (see the Part II Exempt Payee
instructions on page 3 for details),
3. The IRS tells the requester that you furnished an incorrect If you are exempt from backup withholding, enter your name as
TIN, described above and check the appropriate box for your status,
then check the "Exempt payee" box in the line following the
business name, sign and date the form.
Form W -9 (Rev. 10 -2007) Page 3
Generally, individuals (including sole proprietors) are not exempt part I. Taxpayer Identification
from backup withholding. Corporations are exempt from backup Number (TIN)
withholding for certain payments, such as interest and dividends.
Note. If you are exempt from backup withholding, you should Enter your TIN in the appropriate box. If you are a resident
still complete this form to avoid possible erroneous backup alien and you do not have and are not eligible to get an SSN,
withholding. your TIN is your IRS individual taxpayer identification number
The following payees are exempt from backup withholding: (ITIN). Enter it in the social security number box. If you do not
have an ITIN, see How to get a TIN below.
1. An organization exempt from tax under section 501(a), any If you are a sole proprietor and you have an EIN, you may
IRA, or a custodial account under section 403(b)(7) if the account enter either your SSN or EIN. However, the IRS prefers that you
satisfies the requirements of section 401(f)(2), use your SSN.
2. The United States or any of its agencies or If you are a single- member LLC that is disregarded as an
instrumentalities, entity separate from its owner (see Limited liability company
3. A state, the District of Columbia, a possession of the United (LLC) on page 2), enter the owner's SSN (or EIN, if the owner
States, or any of their political subdivisions or instrumentalities, has one). Do not enter the disregarded entity's EIN. If the LLC is
4. A foreign government or any of its political subdivisions, classified as a corporation or partnership, enter the entity's EIN.
agencies, or instrumentalities, or Note. See the chart on page 4 for further clarification of name
5. An international organization or any of its agencies or and TIN combinations.
instrumentalities. How to get a TIN. If you do not have a TIN, apply for one
Other payees that may be exempt from backup withholding immediately. To apply for an SSN, get Form SS -5, Application
include: for a Social Security Card, from your local Social Security
Administration office or get this form online at www.ssa.gov. You
6. A corporation, may also get this form by calling 1- 800 772 -1213. Use Form
7. A foreign central bank of issue, W -7, Application for IRS Individual Taxpayer Identification
8. A dealer in securities or commodities required to register in Number, to apply for an ITIN, or Form SS -4, Application for
the United States, the District of Columbia, or a possession of Employer Identification Number, to apply for an EIN. You can
the United States, apply for an EIN online by accessing the IRS website at
www.irs.gov /businesses and clicking on Employer Identification
9. A futures commission merchant registered with the Number (EIN) under Starting a Business. You can get Forms W -7
Commodity Futures Trading Commission, and SS -4 from the IRS by visiting www.irs.gov or by calling
10. A real estate investment trust, 1- 800 -TAX -FORM (1- 800 829 3676).
11. An entity registered at all times during the tax year under If you are asked to complete Form W -9 but do not have a TIN,
the Investment Company Act of 1940, write "Applied For" in the space for the TIN, sign and date the
12. A common trust fund operated b a bank under section form, and give it to the requester. For interest and dividend
P y payments, and certain payments made with respect to readily
584(a), tradable instruments, generally you will have 60 days to get a
13. A financial institution, TIN and give it to the requester before you are subject to backup
14. A middleman known in the investment community as a withholding on payments. The 60 -day rule does not apply to
nominee or custodian, or other types of payments. You will be subject to backup
withholding on all such payments until you provide your TIN to
15. A trust exempt from tax under section 664 or described in the requester.
section 4947. Note. Entering "Applied For" means that you have already
The chart below shows types of payments that may be applied for a TIN or that you intend to apply for one soon.
exempt from backup withholding. The chart applies to the Caution: A disregarded domestic entity that has a foreign owner
exempt payees listed above, 1 through 15. must use the appropriate Form W -8.
IF the payment is for THEN the payment is exempt part II. Certification
for...
To establish to the withholding agent that you are a U.S. person,
Interest and dividend payments All exempt payees except or resident alien, sign Form W -9. You may be requested to sign
for 9 by the withholding agent even if items 1, 4, and 5 below indicate
Broker transactions Exempt payees 1 through 13. otherwise.
Also, a person registered under For a joint account, only the person whose TIN is shown in
the Investment Advisers Act of Part I should sign (when required). Exempt payees, see Exempt
1940 who regularly acts as a Payee on page 2.
broker Signature requirements. Complete the certification as indicated
Barter exchange transactions Exempt payees 1 through 5 in 1 through 5 below.
and patronage dividends 1. Interest, dividend, and barter exchange accounts
Payments over $600 required Generally, exempt payees opened before 1984 and broker accounts considered active
to be reported over
and direct 1 through 7 during 1983. You must give your correct TIN, but you do not
P g have to sign the certification.
sales over $5,000'
2. Interest, dividend, broker, and barter exchange
'See Form 1099 -MISC, Miscellaneous Income, and its instructions. accounts opened after 1983 and broker accounts considered
2 inactive during 1983. You must sign the certification or backup
However, the following payments made to a corporation (including gross withholding will apply. If you are subject to backup withholding
proceeds paid to an attorney under section 6045(f), even if the attorney is a
corporation) and reportable on Form 1099 -MISC are not exempt from and you are merely providing your correct TIN to the requester,
backup withholding: medical and health care payments, attorneys' fees, and you must cross out item 2 in the certification before signing the
payments for services paid by a federal executive agency. form.
Form W -9 (Rev. 10 -2007) Page 4
3. Real estate transactions. You must sign the certification. Secure Your Tax Records from Identity Theft
You may cross out item 2 of the certification. Identity theft occurs when someone uses your personal
4. Other payments. You must give your correct TIN, but you information such as your name, social security number (SSN), or
do not have to sign the certification unless you have been other identifying information, without your permission, to commit
notified that you have previously given an incorrect TIN. "Other fraud or other crimes. An identity thief may use your SSN to get
payments" include payments made in the course of the a job or may file a tax return using your SSN to receive a refund.
requester's trade or business for rents, royalties, goods (other
than bills for merchandise), medical and health care services To reduce your risk:
(including payments to corporations), payments to a Protect your SSN,
nonemployee for services, payments to certain fishing boat crew Ensure your employer is protecting your SSN, and
members and fishermen, and gross proceeds paid to attorneys Be careful when choosing a tax preparer.
(including payments to corporations).
5. Mortgage interest aid b acquisition or Call the IRS at 1- 800 829 -1040 if you think your identity has
p Y you, q been used inappropriately for tax purposes.
abandonment of secured property, cancellation of debt, Victims of identity theft who are experiencing economic harm
qualified tuition program payments (under section 529), IRA,
Coverdell ESA, Archer MSA or HSA contributions or or a system problem, or are seeking help in resolving tax
distributions, and pension distributions. You must give your problems that have not been resolved through normal channels,
correct TIN, but you do not have to sign the certification. may be eligible for Taxpayer Advocate Service (TAS) assistance.
You can reach TAS by calling the TAS toll -free Case intake line
What Name and Number To Give the Requester at 1 -877- 777 -4778 or TTY/TDD 1- 800 -829 -4059.
Protect yourself from suspicious emails or phishing
For this type of account Give na me and SSN of: schemes. Phishing is the creation and use of email and
1. Individual The individual websites designed to mimic legitimate business emails and
2. Two or more individuals (joint The actual owner of the account or, websites. The most common act is sending an email to a user
account) if combined funds, the first falsely claiming to be an established legitimate enterprise in an
individual on the account' attempt to scam the user into surrendering private information
3. Custodian account of a minor The minor' that will be used for identity theft.
(Uniform Gift to Minors Act) The IRS does not initiate contacts with taxpayers via emails.
4, a. The usual revocable savings The grantor trustee' Also, the IRS does not request personal detailed information
trust (grantor is also trustee) through email or ask taxpayers for the PIN numbers, passwords,
b. So- called trust account that is The actual owner' or similar secret access information for their credit card, bank, or
not a legal or valid trust under other financial accounts.
state law
5. Sole proprietorship or disregarded The owner' If you receive an unsolicited email claiming to be from the IRS,
entity owned by an individual forward this message to phishing@irs.gov. You may also report
For this type of account: Give name and EIN of: misuse of the IRS name, logo, or other IRS personal property to
the Treasury Inspector General for Tax Administration at
6. Disregarded entity not owned by an The owner 1- 800 366 -4484. You Can forward suspicious emails to the
individual Federal Trade Commission at: spam @uce.gov or contact them at
7. A valid trust, estate, or pension trust Legal entity' www.consumer.gov/idtheft or 1- 877- IDTHEFT(438- 4338).
8. Corporate or LLC electing The corporation
corporate status on Form 8832 Visit the IRS website at www.irs.gov to learn more about
9. Association, club, religious, The organization identity theft and how to reduce your risk.
charitable, educational, or other
tax exempt organization
10. Partnership or multi- member LLC The partnership
11. A broker or registered nominee The broker or nominee
12. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a state or local
government, school district, or
prison) that receives agricultural
program payments
List first and circle the name of the person whose number you furnish. If only one person
on a joint account has an SSN, that person's number must be turnished.
2 Circle the minor's name and furnish the minor's SSN.
You must show your individual name and you may also enter your business or "DBA"
name on the second name line. You may use either your SSN or EIN (if you have one),
but the IRS encourages you to use your SSN.
List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN
of the personal representative or trustee unless the legal entity itself is not designated in
the account title.) Also see Special rules for partnerships on page 1.
Note. If no name is circled when more than one name is listed,
the number will be considered to be that of the first name listed.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return.
The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S.
possessions to carry out their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal
nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism.
You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividend, and certain other
payments to a payee who does not give a TIN to a payer. Certain penalties may also apply.
s
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement is made and
entered into this 22 day of October 2009, by and between the City of Carmel "Carmel and
SDMBR, LLC "SDMBR
Recitals
1. Carmel is a municipality duly organized and existing pursuant to the laws of the
State of Indiana.
2. SDMBR owns certain real estate located in Section 31, Township 18 North,
Range 4 East in Hamilton County, Indiana.
b
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. SDMBR, LLC and U.S. Bank,
National Association as Trustee for the Registered Holders of Merrill Lynch Mortgage Trust
2006 -C1 Commercial Mortgage Pass Through Certificates, Series 2006 -C1 Cause No. 29D01-
0902 -PL -193 (the "Condemnation Lawsuit'), Carmel is seeking to acquire 0.072 acres of real
estate from SDMBR to accommodate a road improvement project (the "SDMBR Real Estate
A true and accurate copy of the legal description of the SDMBR Real Estate is attached hereto as
Exhibit A
5. U.S. Bank, National Association, as Trustee for the Registered Holders of Merrill
Lynch Mortgage Trust 2006 -C1, Commercial Mortgage Pass Through Certificates, Series 2006
C1, owns an interest in the SDMBR Real Estate in the form of a mortgage.
6. Carmel and SDMBR, among other things, dispute the value of the SDMBR Real
Estate and other issues set forth in the Condemnation Lawsuit.
r
7. After consulting with their legal counsel, Carmel and SDMBR have agreed to
resolve all of their disputes concerning (a) the SDMBR 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,
Cannel and SDMBR represent and agree as follows:
1. Settlement Terms. In consideration of the sum of Seventy -Seven Thousand One
Hundred Ninety -Five Dollars and Fifty Cents ($77,195.50) (the "Settlement Amount paid by or
on behalf of Carmel and in accordance with the terns of this Settlement Agreement, SDMBR
shall (a) convey a fee simple interest in the SDMBR Real Estate, free of all liens and
encumbrances, to Cannel by a Warranty Deed in the form attached hereto as Exhibit B (b)
secure a Partial Release of Mortgage from the Bank in the form attached hereto as Exhibit C (c)
execute a Sales Disclosure Form in the form attached hereto as Exhibit D (d) complete 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 SDMBR shall be
responsible for and satisfy all property taxes, if any, on the SDMBR Real Estate which accrued
before the date of this Settlement Agreement.
2. Other Good and Valuable Consideration. In addition to providing SDMBR
with the Settlement Amount, Carmel and SDMBR agree as follows: (a) Cannel shall, at its cost
and expense, obtain all necessary approvals to install an ingress lane (the "Ingress Lane for
vehicular traffic to enter SDMBR's retail center from the northbound Keystone Avenue and
install the same in a manner substantially in accordance with the Spot Elevation Detail,
2
Construction Details, and Signing and Pavement Markings attached hereto as Exhibit G and (b)
Cannel shall, at its cost and expense, grade and sod or seed any portions of the SDMBR Real
Estate disturbed by Cannel or its contractors. The Ingress Lane shall be installed and opened as
part of the original construction of Keystone Avenue at 116 Street and, in any event, opened for
use no later than December 31, 2009. Thereafter, Cannel shall utilize its best effort to keep the
Ingress Lane open when it constructs improvements to Keystone Avenue at Cannel Drive.
Carmel reserves the right, however, to close the Ingress Lane (a) temporarily in an effort to
redirect the flow of traffic, or (b) temporarily if safety so requires.
3. Settlement Proceeds. Carmel and SDMBR 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 Fifty Six Thousand Eight Hundred Dollars and No Cents ($56,800.00) with the Clerk
of the Hamilton County Superior Court. As such, Cannel and SDMBR shall cooperate to have
the funds on deposit with the Clerk of the Hamilton County Superior Court delivered to SDMBR
and Cannel 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 SDMBR Real Estate. Except for the Bank's interest in the SDMBR Real
Estate, SDMBR 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
SDMBR Real Estate. Further, SDMBR has made no contract to sell all or part of the SDMBR
Real Estate to anyone other than Carmel. To the best of SDMBR's knowledge, there are no
unpaid claims for labor done upon or materials furnished for the SDMBR Real Estate in respect
of which liens have been or may be filed.
3
5. Resolution Of The Condemnation Lawsuit. Within a reasonable time after the
execution of this Settlement Agreement, Carmel and SDMBR represent and warrant that they
will file the Agreed Findings and Judgment, thereby resolving the Condemnation Lawsuit.
G. Outstanding Claims. Cannel and SDMBR 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 SDMBR 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 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
For n 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 Cannel or SDMBR under the terms of
this Settlement Agreement, then Cannel and SDMBR shall cooperate to resolve the same in a
prompt manner. Where appropriate, Cannel and SDMBR shall agree upon and execute
additional documentation necessary to resolve any such questions, concerns, or disputes.
8. Parking. SDMBR's retail center currently maintains forty -one (41) parking
spaces. It is understood and agreed that the construction of the Ingress Lane referenced in
Paragraph 2 likely will result in the elimination of some parking spaces at SDMBR's retail
center. Cannel shall cooperate with SDMBR in any effort undertaken by SDMBR to obtain any
necessary approvals or variance from Cannel's parking requirements as long as the retail center
maintains at least thirty -nine (39) parking spaces.
4
9. No Admission Of Liability. By entering into this Settlement Agreement, Carmel
and SDMBR 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 SDMBR Real Estate.
10. Attorneys' Fees and Costs. Carmel and SDMBR shall bear their own attorneys'
fees and costs incurred and associated with the Condemnation Lawsuit.
11. 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 terns 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 SDMBR
or their agents, representatives, successors, or assigns.
12. 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.
13. 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.
14. 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
5
i
Agreement. By signing this Settlement Agreement, Carmel and SDMBR 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 SDMBR
and their agents, representatives, insurers, successors, or assigns.
The City of Carmel
By:
Name Printed: es �illc ti/r
Title: D1 /76 •'0/2 1 A s,�2� `i RAJ
Ala S. Townsend
BOSE McKINNEY E VANS LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
Attorneys for the City of Carmel
6
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
t whom, rates per day, number of hours, rate per hour, number of units, price per unit, etc.
Payee
SDMBR, LLC Purchase Order No. NA
2810 E. 116th Street Terms
Carmel, IN 46033 Date Due
Invoice Invoice Description Amount
Date Number (or note attached invoice(s) or bill(s))
11/10/09 NA 07 -08 Keystone Parkway
116th Street Just Compensation Land Cost
Remaining Settlement Amount $20,395.50
Parcel 36
C O 'S -0- ohs -O'l
Ple deliver this check to
Jeremy Kashman at City of Carmel Engineer's Office
Total $20,395.50
I 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
VOUCHER N0, WARRANT NO.
SDMBR, LLC ALLOWED 20
2810 E. 116th Street IN THE SUM OF
Carmel, IN 46033
20,395.50
ON ACCOUNT OF APPROPRIATION FOR
SDMBR, LLC
PO# or INVOICE NO. ACCT /TITLE AMOUNT Board Members
DEPT.#
NA NA 44470302 $20,395.50
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
CLrove �Y rCOU VSc_! 1 N1�a
November 16, 20 09
$20,395.50 Signature
Cost distribution ledger classification if Cit En
claim paid motor vehicle highway fund Title