HomeMy WebLinkAboutKERRY ANN WAY THIS DOCUMENT SHALL NOT BE RECORDED
City, State: Jeffersonville,IN
Address: 5506 Highway 62,Jeffersonville,IN 47130
L/C: 013-1197
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release(this"Agreement")is entered into among
McDonald's Real Estate Company,a Delaware corporation("McDonald's"),and the City of
Jeffersonville, Indiana, an Indiana municipal corporation (the "City") (collectively the
"Parties"). In consideration of the promises, covenants and release contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged,the Parties agree as follows:
I. RECITALS
A. McDonald's is the fee owner of certain real estate located at the northeast corner of the
intersection of United States Highway 62 and Kerry Ann Way, with a common address
of 5506 Highway 62, Jeffersonville, Indiana, 47130 (the "Subject Property"). The
Subject Property is legally described on Exhibit A to this Agreement.
B. Beginning on October 22, 2015, McDonald's constructed a building and made other
improvements at, on , and under the Subject Property in order to construct and operate
a McDonald's restaurant at the Subject Property (the"McDonald's Improvements").
The McDonald's Improvements included, but were not limited to, excavation, grading,
drainage improvements, installation of concrete, pavement and other impervious
improvements,plumbing improvements, electrical improvements, and the construction
of an approximately 40,000 square-foot, free-standing building.
C. Beginning sometime after March 1, 2015, the City made improvements to the right of
way and surrounding property at the intersection of United States Highway 62 and Keny
Ann Way, in order to widen Kerry Ann Way (the "City Improvements"). The City
Improvements included, but were not limited to, excavation, grading, drainage
improvements, sewer improvements, and the installation of concrete, pavement and
other impervious improvements.
D. After the initiation of the McDonald's Improvements and the City Improvements,
stormwater drainage was negatively affected at the northeast corner of the intersection
of United States Highway 62 and Keny Ann Way. Specifically, stormwater does not
efficiently drain after precipitation events, and tends to pond at the northeast corner of
the intersection of United States Highway 62 and Kerry Ann Way,and at the southwest
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corner of the Subject Property. The City claims that the McDonald's Improvements
caused this drainage issue; McDonald's denies the McDonald's Improvements caused
this drainage issue and claims that the City improvements caused this drainage issue.
This drainage issue described in this Recital D and the City's claims related thereto are
referred to as the"Drainage Dispute"in this Agreement.
E. The Parties have agreed to resolve the Drainage Dispute any and all claims that the City
asserted or could have asserted against McDonald's in a lawsuit, as well as any and all
other claims, whether known or unknown, present or contingent, that the City had or
may have against McDonald's, relating to McDonald's Improvements, the Drainage
Dispute,and any matter whatsoever as of or prior to the date of this Agreement.
NOW,THEREFORE,McDonald's and the City hereby agree as follows:
II. TERMS OF AGREEMENT
1. Recitals. The Recitals A through E are incorporated into this Agreement by
reference as if fully set forth herein.
2. Acknowledgments. The Parties acknowledge that this Agreement settles and
compromises the Drainage Dispute any and all claims that the City asserted or could have asserted
against McDonald's in a lawsuit,as well as any and all other claims, whether known or unknown,
present or contingent,that the City had or may have against McDonald's, relating to McDonald's
Improvements,the Drainage Dispute, and any matter whatsoever as of or prior to the date of this
Agreement. The Parties further acknowledge that by entering into this Agreement, no party is
admitting the validity of any claim.
3. Payment. Within thirty (30) days after the final execution and delivery of this
Agreement, McDonald's agrees to pay the City the sum of$10,000.00 via a check payable to the
City of Jeffersonville, Indiana.
4. Repairs. Within one hundred-eighty (180) days after the final execution and
delivery of this Agreement,the City agrees to complete the installation of the repairs depicted in
Exhibit B to this Agreement(the"Drainage Repairs"). The Drainage Repairs shall include, but
not be limited to,the installation of a catch basin at the southwest corner of the Subject Property,
which catch basin shall be connected by a 12"PVC pipe to existing stormsewer structures that are
operated and maintained by the City. The Drainage Repairs shall be designed and sufficient to
efficiently drain stormwater from the northeast corner of the intersection of United States Highway
62 and Kerry Ann Way,and at the southwest corner of the Subject Property,during a one hundred
(100)year frequency storm. The Drainage Repairs shall be designed to alleviate any ponding of
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stormwater from the northeast corner of the intersection of United States Highway 62 and Kerry
Ann Way, and at the southwest corner of the Subject Property, during a one hundred(100)year
frequency storm(and during any precipitation event resulting in less than a one hundred(100)year
frequency storm).
5. General Release. The City for itself and all of its successors, predecessors,
beneficiaries, executors, trustees, administrators, subrogees, agents, attorneys, representatives,
employees, officers, directors, partners, shareholders, principals, members, parent entities,
subsidiaries and/or affiliates (and any other entities in which they may have any interest)
(collectively, the "City Parties"), irrevocably and absolutely releases and forever discharges
McDonald's, its franchisees, and its and their predecessors and successors in interest, past and
present subsidiaries, affiliates, franchisees, assignees, nominees, divisions, officers, directors,
employees, stockholders, members, attorneys, servants, representatives, partners, insurers, and
agents (collectively, the "McDonald's Released Parties"), of and from all claims, charges,
accounts,obligations, actions,or causes of action(however denominated), whether at law,statute
or in equity and whether known or unknown,present or contingent,for any injury,damage or loss
whatsoever which they may now or hereafter have,own or claim to have against the McDonald's
Released Parties that in any way relate to McDonald's Improvements,the Drainage Dispute,and/or
by reason of any matter whatsoever occurring prior to and through the execution of this Agreement,
including, but not limited to, all claims that were or that could have been asserted in a lawsuit for
any reason whatsoever, but excluding any and all representations, warranties, obligations, duties
and covenants arising from this Agreement(the"Release"). The City,for itself and on behalf of
the City Parties, further agrees and undertakes not to make any claim or to take any proceedings
against any other person or entity which might claim contribution or indemnity from the
McDonald's Released Parties. The City,for itself and on behalf of the City Parties,also covenants
not to sue or to enforce any judgment or claim against any of the McDonald's Released Parties
regarding any of the claims being released by this Agreement. The Parties intend for the
McDonald's Released Parties that are not parties to this Agreement to be third-party beneficiaries
of the release provided for by this paragraph. To the extend allowed by law, the Parties further
agree that all rights under Section 1542 of the Civil Code of California and any similar law of any
state or territory of the United States are hereby expressly waived, and that this general release
shall extend to claims which the City and the City Parties does not know or suspect to exist in its
or their favor at the time of executing the release. THIS RELEASE IS A GENERAL RELEASE
AND THE PARTIES INTEND AND AGREE THAT IT SHALL BE INTERPRETED,
CONSTRUED AND ENFORCED AS SUCH.
6. Indemnity. The City agrees to indemnify, defend and hold the McDonald's
Released Parties harmless from and against any and all losses,damages, causes of action,claims,
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liabilities, cost and expenses (including reasonable attorney fees and court costs), directly or
indirectly suffered or incurred by McDonald's as a result of the City Improvements,the Drainage
Dispute,or the Drainage Repairs. The City shall perform the Drainage Repairs at its sole risk,cost
and expense and shall be solely and exclusively responsible to maintain in good condition and
repair, or cause to be maintained and kept in good condition and repair, the City Improvements
and the Drainage Repairs.
7. No Assignment. The City warrants and represents that it has not made any
assignment or transfer of any right,claim,demand,cause of action,or other matter covered by the
Release set forth in this Agreement.
8. Reimbursement of Fees and Costs for Violation of Release. The City agrees
that, in the event that the City Parties, or anyone claiming through them, subsequently sues or
asserts any claim against any of the McDonald's Released Parties, the City shall reimburse the
McDonald's Released Parties for all attorney fees,costs and expenses incurred by the McDonald's
Released Parties in defending that subsequent lawsuit or claim, if a court, arbitrator, or mediator
determines that this Agreement bars the claims asserted in that subsequent lawsuit or claim.
9. Reimbursement for Fees and Costs to Enforce Agreement. If McDonald's or
McDonald's Released Parties institutes any action at law or in equity against the City to secure or
protect McDonald's rights under or to enforce the terms of this Agreement, in addition to any
judgment entered in its favor, then McDonald's shall be entitled to recover its attorney fees,
together with court costs and expenses of litigation.
10. Drafting. This Agreement was negotiated at ann's length and entered into freely
by the Parties with the advice of counsel. In the event that an ambiguity exists in any provision of
this Agreement,such ambiguity is not to be construed by reference to any doctrine or statute calling
for ambiguities to be construed against the drafter of this Agreement.
11. Captions. The captions or headings of the sections or paragraphs of this
Agreement are for convenience of reference only and in no way define, limit or affect the scope or
substance of any section or paragraph of this Agreement.
12. Scope of Promises, Representations, and Inducements. The Parties
acknowledge, warrant and represent that no promises, representations or inducements, except as
set forth in this Agreement,have been offered or made by any of the Parties to secure the execution
of the Release above or this Agreement, and that the Release above and this Agreement are
executed and given without reliance on any statements or any representations not contained herein
Each of the Parties knowingly waives: (i) any claim that this Agreement was induced by any
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misrepresentation or nondisclosure, and (ii) any right to rescind or avoid this Agreement based
upon presently existing facts, known or unknown.
13. Voluntary Agreement. Each of the Parties certifies that it is voluntarily entering
into this Agreement in good faith based solely and completely upon its own judgment and upon
the advice and counsel of its own attorneys following its good-faith assessment of any and all
matters related to this Agreement.
14. Survival. The Parties agree that the provisions of this Agreement, including,
without limitation,the representations,warranties,covenants and Release made in this Agreement,
shall survive the execution of this Agreement and the performance by the Parties of their respective
obligations under this Agreement.
15. Severability. Any part, provision, representation or warranty of this Agreement
that is prohibited or unenforceable, or is held by a court of competent jurisdiction to be void or
unenforceable, shall be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining parts, provisions, representations or warranties contained in this
Agreement. To the extent permitted by applicable law, the Parties knowingly, voluntarily and
intelligently waive any provision of law that prohibits or renders void or unenforceable any part,
provision, representation or warranty contained in this Agreement.
16. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the settlement of Drainage Dispute and any other matter related to this Agreement,
and supersedes all prior and contemporaneous agreements and understandings relating to the
subject matter of this Agreement. Any and all prior correspondence,conversations,or memoranda
are merged into this Agreement.
17. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties'successors and assigns.
18. Modifications. No part or provision of this Agreement may be changed,modified,
waived, discharged or terminated except by an instrument in writing signed by the party against
whom enforcement of such change,modification,waiver,discharge or termination is sought. The
failure of a party to seek redress for violation of, or to insist upon strict performance of, any
provision of this Agreement shall not be a waiver of that provision by that party or estop that party
from asserting fully any and all of its rights under this Agreement.
19. Waiver of Trial By Jury. Each of the Parties knowingly, voluntarily and
intelligently waives any rights that it may have to a trial by jury with respect to any lawsuit based
on this Agreement, or arising out of, under, or in connection with, this Agreement or any course
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of conduct, course of dealing, statements (oral or written) or actions of any of the Parties in
connection with this Agreement. This provision is a material inducement for each of the Parties
to enter into this Agreement.
20. Confidentiality. The City agrees, and shall instruct its current, former and future
attorneys, accountants and agents, including its employees, officers and/or directors, to keep the
terms and conditions of this Agreement strictly confidential and not to provide originals or copies
of,or disclose any or all of the contents of this Agreement to any third-party except as required by
statute, a subpoena, or other valid legal process. In the event the City reasonably believes that
production or disclosure of this Agreement or the contents of this Agreement is required by a
statute, a subpoena, or other valid legal process, the City shall provide written notice to
McDonald's at least fifteen (15) business days prior to the date such production or disclosure is
required, and shall cooperate fully with McDonald's in seeking a protective order to preserve the
confidentiality of this Agreement and its contents. In the event McDonald's elects to pursue a
protective order, it will notify the City of such election in writing and any and all costs for such
protective order shall be borne by McDonald's. The City further agrees not to make disparaging
remarks about the McDonald's Released Parties.
21. Further Assurances. Each of the Parties agrees to execute such other and further
documents, and to take such other and further actions, as may be reasonably requested by any of
the Parties for the sole purpose of effectuating the agreements herein within ten(10)business days
following written request.
22. Notices. All notices required or permitted to be given under this Agreement shall
be in writing, and shall be delivered by a nationally recognized overnight courier service such as
Federal Express, DHL,or United Parcel Service, or sent by United States certified or registered
mail, returned receipt requested,first class postage and charges prepaid,and shall be addressed to
the Parties at the addresses indicated below:
If to McDonald's: McDonald's Real Estate Company
110 N Carpenter St,Chicago, IL 60607-2101
Attention: Director,US Legal Department#283
L/C:013-0106.
If to The City City of Jeffersonville
Attn: Mayor
500 Quartermaster Court
Jeffersonville,IN 47130
Notices shall be effective when placed in the mail or when deposited with such overnight courier.
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23. Authorization to Sign. Each of the Parties represent and warrant that the
individual signing this Agreement on its behalf is duly authorized to enter into this Agreement and
to execute and legally bind such party to it.
24. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which when taken together shall constitute one and the same
instrument.
25. Governing Law and Consent to Jurisdiction. Illinois law shall govern the
interpretation, construction and enforcement of this Agreement. Moreover, the Parties expressly
consent to jurisdiction in the courts of Illinois for any dispute regarding or relating to this
Agreement,the Drainage Dispute,or any other matter or claim released herein.
26. Choice of Forum. Any litigation or proceeding regarding or related to this
Agreement,the Drainage Dispute,or to any other matter or claim released herein shall be filed and
heard in the state court in Cook County,Illinois,or in federal district court in Chicago,Illinois.
27. Attorney Fees. Except as otherwise provided in this Agreement,each of the Parties
shall bear all of its own attorney fees and legal expenses.
28. No Waiver. No delay or failure by either party to enforce any right arising under
this Agreement, or to enforce against any breach under this Agreement, shall be construed as a
waiver of any such right or breach orr any other right or breach.
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IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement and
General Release as of the dates set forth below.
McDONALD'S REAL ESTATE COMPANY
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WITNESS/ATTEST:
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WITNESS/ATTEST:
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Exhibit A
Property Description
Parcel 1
A certain parcel being a part of Survey#37 of the Illinois Grant,Utica Township,Clark County,Indiana.
Parcel also being part of Lot 1 of the Minor Plat of River Station Center Subdivision as recorded in Plat
Book 16 Page 11.Said Parcel being a portion of land owned by River Station Center,LLC as recorded in
Parcel No. 10-42-03-700-187.000-039 and Minor Plat Book 16 Page 11 in the office of Clark County,
Indiana Recorders Office.Said parcel is more particularly described as follows:
The basis of bearings referred to hereon were based on Grid North as it relates to the Indiana State Plane
Coordinate System(East)Using CORS Station"TNTC",February 28, 1015.
COMMENCING at an iron pin with cap (found), being a corner to the State of Indiana as recorded in
"Instrument No. 201502744 and being on the South right-of-way of State Road 62(right-of-way varies)
and the East right-of-way of Kerry Ann Way(50 foot right-of-way);
Thence leaving Kerry Ann Way with State Road North 17 degrees 27 minutes 46 seconds East,31.33 feet
to an iron pin with cap,set this survey,(all iron pins and caps set this survey are 5/8"rebar with a plastic
cap stamped"R.NEUHAUS LS20900162"),point being the TRUE POINT OF BEGINNING;
Thence continuing with State Road 62 North 17 degrees 27 minutes 46 seconds East, 195.85 feet to an
iron pin with cap, set this survey being on State Road 62 and a corner to River Station Center, LLC. as
recorded in"Instrument No.201325625"and Minor Plat Book 16 Page 11",Lot 2";
Thence leaving State Road 62 with the line of River Station, Lot 2 South 35 degrees 33 minutes 36
seconds East,305.17 feet to an iron pin with cap,(found),being a corner to River Station,I.ot 2 and being
a corner to River Station,Lot 3; -
Thence leaving the River Station, Lot 2 with the River Station, Lot 3 South 53 degrees 37 minutes 12
seconds West, 181.71 feet to an iron pin with cap, set this survey, being a corner to River Station,Lot 3
and being on Kerry Ann Way;
Thence leaving River Station,Lot 3 with Kerry Ann Way North 35 degrees 29 minutes 28 seconds West,
139,79 feet to an iron pin with cap,set this survey,point being a corner to said State of Indiana;
Thence Ieaving Kerry Arm Way with the State of Indiana for the following two calls:
Thence North 17 degrees 27 minutes 46 seconds East,31.33 feet to an iron pin with cap,set this survey;
Thence North 35 degrees 29 minutes 28 seconds West, 31.33 feet to the point of beginning containing
0.97 Acres(42,454.3 Square feet)per survey by American Engineers Inc.dated June 18,2015.
Parcel 2
Together with the beneficial easements described in Shopping Center Easement Agreement by and
between McDonald's Real Estate Company aid RSC Dcvelonment Group, LLC dated 7/)G//t and
recorded ID-0,14S as Instrument NumberOtSj�AD&]he Clark County,Indiana Recorder's Office.
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