P24 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.
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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.
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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
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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:
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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