Illinois 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overall value of the 4.530 Acre Parcel and which amount was withdrawn by JEC per order of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.
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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.
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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
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