HomeMy WebLinkAboutSSB v. American Legion Auxiliary 10C01-1112-PL-0133 IN THE CIRCUIT COURT OF CLARK COUNTY
STATE OF INDIANA
CITY OF JEFFERSONVILLE, INDIANA,
FOR THE USE AND BENEFIT OF THE
JEFFERSONVILLE SANITARY BOARD,
Plaintiff,
v. Case No. 10001. 1112 -PL- 6/ 3
AMERICAN LEGION AUXILIARY
LAWRENCE CAPEHART UNIT #35, INC.
(f/k/a The Lawrence Capehart Post No. 35 of
the American Legion of Jeffersonville, Clark
County, Indiana),
Defendant.
SETTLEMENT AGREEMENT AND ORDER OF APPROVAL
Comes now plaintiff, City of Jeffersonville, Indiana, for the use and benefit o the
Jeffersonville Sanitary Board (hereinafter the "City"), by counsel, Amy J. Burnette, and her
come now defendant, American Legion Auxiliary Lawrence Capehart Unit #35, Inc. (f/k/a The
Lawrence Capehart Post No. 35 of the American Legion of Jeffersonville, Clark County,
Indiana) (the "American Legion "), by counsel, John G. Montgomery, and advise the court that
they have agreed to fully settle and compromise the claims raised by the Complain for
Appropriation of Land filed by the City herein on the following terms and conditions:
1. The parties shall use their best efforts to close the City's purchase o the
American Legion's real property located at the commonly known address of 217 West 11urt
Avenue, Jeffersonville, Clark County, Indiana (the "American Legion Real Estate "), on the t. rms
and conditions set forth herein within thirty (30) days following the court's review and app 'vat
of this Settlement Agreement (the "Closing "), which real estate is more particularly describe ' as
follows:
The following described real estate situated in the City of
Jeffersonville, County of Clark, State of Indiana, to -wit: From the
intersection of the northeasterly line of Mulberry Street with the
northwesterly line of Maple Street, measure northeasterly 30 feet
along the northwesterly line of Maple Street to the northeasterly
property line of the Louisville & Jeffersonville Bridge and
Railroad Company; thence deflecting 90 degrees to the left,
measure northwesterly 150 feet along said northeasterly property
line, said property line being parallel with and 30 feet distant
measured northeasterly and at right angles from the northeasterly
line of Mulberry Street; thence deflecting 90 degrees to the right,
measure northeasterly 6 feet to the place of beginning; thence
deflecting 90 degrees to the left, measure northwesterly 299 feet to
the southeasterly line of Court Street, previously known as New
Market Street; said last described course being parallel with and 36
feet distance measured northeasterly at right angles to the
northeasterly line of Mulberry Street; thence deflecting 90 degrees
to the right, measure northeasterly 70.2 feet along the southeasterly
line of Court Street; thence deflecting 90 degrees to the right,
measure southeasterly 110 feet; thence deflecting 90 degrees to the
left, measure northeasterly 65.6 feet; thence deflecting 90 degrees
to the right, measure southeasterly 64 feet; thence deflecting 90
degrees to the left, measure northeasterly 28.2 feet; thence
deflecting 90 degrees to the right, measure southeasterly 62 feet;
thence deflecting 90 degrees to the right, measure southwesterly 97
feet; thence deflecting 90 degrees to the left, measure southeasterly
63 feet; thence deflecting 90 degrees to the right, measure
southwesterly 67 feet to the place of beginning, containing an area
of 30,802 square feet, more or less.
ALSO, the west Thirty -three (33) feet of Lot No. Five (5) in
Block No. Twenty -seven (27) in the City of Jeffersonville,
according to the map of said city printed by C. R. Milne in 1839,
and also a parcel extending southwardly from the above parcel a
distance of Sixty (60) feet into Out -lot No. 250 of said city, in all
making a parcel 33 feet in width and 110 feet in depth.
ALSO, Lot Number Four (4) in Block No. 27, in the City of
Jeffersonville and extending back the same width of said Out -lot
No. 250, in said city, a distance of Sixty (60) feet, being 35.4 feet
front on Market Street (now Court Avenue), more or less, and 110
feet in depth from the south line of said street.
ALSO, a part of Lots 218 and 219 in the City of Jeffersonville,
Clark County, Indiana, described as follows: Beginning on the
southerly line of said Lot 219, a distance of 37.25 feet along said
southerly line easterly from the southwest comer of said Lot 219;
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thence Westerly 77.25 feet along the southerly line of said Lots
218 and 219; thence Northerly 213.00 feet parallel with the
easterly line of said Lot 218 to the northerly line of said Lot 218;
thence Easterly along said northerly line, 77.25 feet; thence
Southerly 213.00 feet parallel with the easterly line of said Lot
218, to the point of beginning and containing 16,454 square feet,
more or less.
ALSO, part of Out Lot No. 250 in the City of Jeffersonville,
Clark County, Indiana, and being further described as follows:
Beginning at the southeast corner of Court Avenue and Mulberry
Street, same being the northwest comer of Lot No. 1, Block No. 27
in said city; thence North 58 deg. 44' East, along the south line of
Court Avenue, 179.25 feet to a point, being the northeast comer of
Lot No. 5 in said Block No. 27; thence South 30 deg. 56' 15" East,
along the line dividing Lot Nos. 5 and 6 in said Block No. 27 and
said line extended, 110.00 feet to a point, the true place of
beginning; thence continuing South 30 deg. 56' 15" East, 62.0 feet
to the southwest corner of a tract described in Deed Record Book
262, page 557 of said county records; thence South 58 deg. 44'
West, 5.27 feet to a railroad spike, being a comer of a tract
described in Deed Record Book 161, page 327 of said county
records; thence N. 30 deg. 56' West, 62.0 feet along a line of said
tract to an iron pipe on a corner of said tract; thence North 56 deg.
44' West, 5.27 feet to the true place of beginning, containing
326.73 square feet, more or less.
ALSO, all that parcel of land situated in the Town of
Jeffersonville, County of Clark and State of Indiana, being a part
of Lot Number 217 and Lot Number 250 in the Original Town of
Jeffersonville and also being a portion of that parcel of land
designated Tract "B" on a plat of survey made by B. L. Fewell &
Assoc. Inc., dated July 27, 1977 and revised January 18, 1980, and
bounded and described according to said plan of survey as follows,
to-wit: Beginning at a point on the easterly line of Mulberry Street
(60 feet wide) distant 200 feet measured South 40 deg. East, along
said line of Mulberry Street from the northwest corner of the
aforesaid Lot No. 250 on the southerly line of Court Avenue (100
feet wide), said beginning point being also the southwest corner of
a parcel of land designated Tract "A" on the aforesaid plan of
survey; extending from said beginning point the following four
courses and distances: (1) North 49 deg. 58' 20" East, along the
southerly line of said Tract "A ", a distance of 36 feet to a point;
thence (2) South 40 deg. East, 89 feet to a point on the
northwesterly line of a 10 foot wide driveway easement; thence (3)
South 50 deg. West, along said northwesterly line, the distance of
36 feet to a point on the easterly line of Mulberry Street; thence (4)
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North 40 deg. West, along said line of Mulberry Street, the
distance of 89 feet to the place of beginning, containing 3,202
square feet, more or less, or 0.074 of an acre, more or less.
ALSO, a part of Out Lot No. 250 in the City of Jeffersonville,
Clark County, Indiana and being further described as follows:
Beginning at the southeast corner of Court Avenue and Mulberry
Street, same being the northwest comer of Lot 1, Block 27 in said
city; thence North 58 deg. 44' East, along the south line of Court
Avenue, 179.25 feet to a point on the northeast corner of Lot 5 in
said Block 27; thence South 30 deg. 56' 15" East, along the line
dividing Lots 5 and 6 in said block and said line extended, 172.00
feet to an iron pipe on the south comer of a tract of land described
in Deed Drawer 9, Instrument 13008 of said county records; thence
Northeasterly along the southern line of said tract, 21.22 feet to a
point, the true place of beginning; thence continuing Northeasterly
along said southern line, 27.80 feet to an iron pipe on the east
comer of said tract and in the line dividing Out Lots 250 and 251;
thence Southeasterly along said dividing line, 61.27 feet to an iron
pipe on the east corner of Out Lot 250; thence Southwesterly along
the southem line of said Out Lot 250, 28.75 feet to an iron pipe;
thence Northwesterly 61.50 feet, more or less, to the Inc place of
beginning, containing 1735 square feet, more or less.
EXCEPTING THEREFROM, part of Out Lot No. 250 in the
City of Jeffersonville, Clark County, Indiana, and being further
described as follows: Beginning at the southeast corner of Court
Avenue and Mulberry Street, same being the northwest corner of
Lot No. 1, Block No. 27, in said city; thence North 58 deg. 44'
East, along the south line of Court Avenue, 179.25 feet to a point,
being the northeast comer of Lot No. 5 in said Block No. 27;
thence South 30 deg. 56' 15" East, along the line dividing Lot Nos.
5 and No. 6 in said Block No. 27 and said line extended 110.00
feet to an iron pipe, the true place of beginning; thence continuing
South 30 deg. 56' 15" East, 62.00 feet to the southwest corner of a
tract described in Deed Record Book 262, page 557, of said county
records; thence South 58 deg. 44' West, 2.43 feet to a railroad
spike; thence North 30 deg. 56' 15" West, 62.0 feet to an iron pipe;
thence North 58 deg. 44' East, 2.43 feet to the true place of
beginning, containing 150.66 square feet, more or less.
2. The American Legion shall convey the American Legion Real Estate to the 'ty
by corporate warranty deed free and clear of any liens or encumbrances. In addition • the
corporate warranty deed, the American Legion shall deliver to the City, at the Closing, uch
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other documents as may reasonably be required by the City or its title company issti an
owner's policy of title insurance for the American Legion Real Estate to issue such policy.
3. The parties shall use their best efforts to close the American Legion's exe ge
and/or purchase of real property to be acquired by the City from the Board of Clark • my
Commissioners ("Clark County") located at the commonly known address of 801 Main S eel,
Jeffersonville, Clark County, Indiana (the "City Real Estate "), on the terms and condition. set
forth herein at the Closing of the American Legion Real Estate, which real estate is ' 1 ore
particularly described as follows:
Tract i
Being Lot #43 of the Latimer & Sabitz Subdivision of Letter
"B" of Survey #2 of the Illinois Grant, Jeffersonville, Clark
County, Indiana, bounded thus:
Beginning at the Southeast Corner of Lot #43, the same being
in the Center of Western Avenue; Thence, Southwestwardly along
the Southern line of Lot #43, 194 feel to the true place of
beginning; Thence, Continuing Southwestwardly along the
Southern line of said Lot #43; Thence, Northwestwardly along the
Western line of Lot #43, 157 feet to a point 8 feet from the
Northwest corner of Lot #43; Thence, Eastwardly and parallel to
the Northern line of Lot #43, 29.27 feet; Thence, Southwardly
across Lot #43 and parallel to the Western Line of said Lot #43,
157 feet to the True Place of Beginning.
Tract 11
Being a part of lot Number Forty -three (43) of Latimer and
Savitz Subdivision of Letter "B" of Survey Number Two (2) of the
Illinois Grant, Clark County, Indiana, bounded thus:
Beginning at the Southeast corner of Lot Number Forty -three
(43), the same being the center of Western Avenue; thence
Southwestwardly along the Southern line of Lot Number Forty -
three (43) One Hundred Ninety -four (194) feet; thence northwardly
across lot number forty -three (43), one hundred Fifty -seven (157)
feet to a point eight (8) feet from the northern line of said lot
number Forty-three (43); thence eastwardly and parallel to the feet
to a point in the center line of Western Avenue; thence
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southwardly along the center line of western avenue, the same
being the eastern line of lot number forty -three (43), one hundred
fifty-seven (157) feet to the true place of beginning.
4. The City hereby represents and warrants that all official action required to
authorize the City's purchase of the City Real Estate has been taken by the City and t lark
County.
5. The City shall convey the City Real Estate to the American Legion by s • ial
warranty deed free and clear of any liens or encumbrances. In addition to the special wa anty
deed, the City shall deliver to the American Legion, at the Closing, such other documents as may
reasonably be required by the American Legion or its title company issuing an owner's poli ' y of
title insurance for the City Real Estate to issue such policy. In addition, at the Closing, the City
shall enter into an agreement with American Legion to demolish the existing structures o the
City Real Estate for $10,000, which amount shall be deducted from the American =.:on
Purchase Price (defined below).
6. In addition to the conveyance of the City Real Estate, the City shall pa the
American Legion the sum of Five Hundred Ninety Thousand and No /100 Dollars ($590,1 t .00)
for the purchase of the American Legion Real Estate (the "American Legion Purchase Pri "),
and Clark County the sum of Two Hundred Ten Thousand and No /100 Dollars ($210,000.111 for
the purchase of the City Real Estate (the "City Purchase Price ").
7. The City shall pay the American Legion Purchase Price, as adjusted as set orth
below and in paragraph 5 above, to the American Legion at the Closing.
8. The American Legion Purchase Price shall be reduced by any amounts ncce ary
to clear any lien or encumbrance on the American Legion Real Estate, any unpaid utility ch: ges
and real estate taxes pro -rated to the date of the Closing. To the extent the real estate tax for
the period in question are not specifically ascertainable, the parties shall base the pro -ra ons
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upon the most recent real estate tax assessments available, and such proration shall be deemed to
be final and conclusive.
9. The patties agree that the American Legion shall not be required to sun
Ocfz 3/ 4
possession of the American Legion Real Estate to the City until September 2012 (the
"Surrender Date"), without payment of rent or other compensation to the City, provided th : the
American Legion shall bear the risk of loss to the American Legion Real Estate until posse: ion
is actually surrendered, and further provided that (i) the American Legion shall be respon.ible
for all maintenance and repairs to the American Legion Real Estate, including any an all
structural or roof repairs, and (ii) the American Legion shall indemnify, defend, and .old
harmless the City from any claims for damages to persons or property asserted by any 'rd
parties subsequent to the Closing of the sale of the American Legion Real Estate to and incl i. ing
the date on which the American Legion ultimately surrenders possession of the American on
Real Estate to the City. During the period that the American Legion remains in possession . the
American Legion Real Estate following Closing, it shall maintain a premises liability poll. of
insurance with coverage limits of One Million Dollars per occurrence and Five Million D. Hats
in the aggregate, which policy shall name the City as an additional insured, and the Arne can
Legion shall provide the City with a copy of the declarations page of such policy at all tim • that
it remains in effect. The American Legion shall further indemnify the City from any u ility
charges and/or real estate taxes charges or assessed against the American Legion Real :tate
during the period that the American Legion remains in possession of the American Legion ' eal
Estate following Closing. The American Legion shall further be obligated to pay the Cit the
sum of Five Hundred Dollars ($500.00) per day as liquidated damages for each day .:t it
remains in possession of the American Legion Real Estate following the Surrender Date, i.lus
any costs, including W re r na attomey' fees, subsequently incurred by the City in t: ing
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action deemed necessary to secure possession of the American Legion Real Estate followin: the
Surrender Date. Notwithstanding the provisions of the immediately preceding sentence, f. the
period of up to ninety (90) days following the Surrender Date the liquidated damages . I P oust
shall be reduced as applicable to (i) Two Hundred Dollars ($200.00) per day provided th. the
American Legion has obtained a State of Indiana building permit for its planned improve ents
to the City Real Estate by May 1, 2012, or (ii) One Hundred Dollars ($100.00) per day pro ided
that the American Legion has obtained such building permit by May 1, 2012, and has fu er
commenced construction of such improvements by July 1, 2012.
10. During the period that the American Legion remains in possession the Ame ican
Legion Real Estate following closing, the American Legion Real Estate shall only be used f the
purpose of an American Legion lodge and entertainment facility and for no other purpose. The
American Legion shall provide the City, its employees, agents and contractors with a • .s to
enter the American Legion Real Estate and the improvements thereon and to bring workme. and
materials onto the American Legion Real Estate, and to store materials thereon, upon reaso able
advance written notice, so long as such access and use of the American Legion Real Estate . oes
not materially interfere with the American Legion's operation of its business on the Ame can
Legion Real Estate.
11. The payment of the American Legion Purchase Price to the American Legio. by
the City, as adjusted and/or recalculated pursuant to the terms of this Settlement Agree i ent,
shall constitute the total compensation to be paid by the City to the American Legion, an. the
City shall have no further financial obligation to American Legion on account of the convey: nee
of the American Legion Real Estate, excluding, however, any subsequent claim for payme ' t of
any relocation expenses to which the American Legion may be entitled under applicable aws
and regulations.
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12. The Closing of the American Legion Real Estate and the City Real Estate hall
occur at a location in Clark County, Indiana, designated by the City. The City shall bear all .sts
of closing the purchase of the American Legion Real Estate except as expressly provided t. the
contrary in this Settlement Agreement. The City shall bear all costs of closing the purch.. of
the City Real Estate, excepting for Clark County's attomey's fees in the amount of ten pe cent
(10 %) of the City Purchase Price, and further excepting as expressly provided to the con y in
Ibis Settlement Agreement.
13. Following the simultaneous Closing of (i) the purchase of the American ' on
Real Estate by the City, (ii) the purchase of the City Real Estate by the City, and (iii) the sal : and
conveyance of the City Real Estate by the City to the American Legion, the parties shall ten er a
joint stipulation of dismissal of this proceeding without prejudice, although the parties retai the
right to re -open this proceeding for the limited purpose of seeking enforcement of the term ' and
conditions of this Settlement Agreement.
14. Each party shall pay their own costs and attorney's fees incurred in this
proceeding.
15. The American Legion acknowledges that it (a) has read and fully understand the
terms and provisions of this Settlement Agreement, (b) has had an opportunity to consult ith
legal counsel of its choice prior to executing this Settlement Agreement, and (c) now ex . tes
this Settlement Agreement by its duly authorized officer of its own free accord.
[The remainder of this page intentionally left blank Signature pages follow.]
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WHEREFORE, the American Legion has approved this Settlement Agreement b the
undersigned as its duly authorized officer and representative, and further respectfully ask that
this court approve this Settlement Agreement in all respects.
For 'American Legion":
AMERICAN LEGION AUXILIARY
LAWRENCE CAPEHART UNIT #3
INC. (Vk/a The Lawrence Capehart P i st
No. 35 of the American Legion of
Jeffersonville, Clark County, Indiana ,
an Indiana not - for -profit corporation
By:
Printed:
Title:
Read and approved as to form:
By:
John G. Montgomery,
Counsel for the American Legion
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WHEREFORE, the City has approved this Settlement Agreement by the undersign d as
its duly authorized official and representative, and further respectfully asks that this ours
approve this Settlement Agreement in all respects.
For the "City":
CITY OF JEFFERSONVILLE,
INDIANA, for the use and benefit of t e
JEFFERSONVILLE SANITARY
BOARD
: ,:
omas R. Galligan; 17 and
Chairman of the Sani . : m and
Prepared and approved as to form:
By: i • PA
Amy J. Burnett., Co A 1 •e City
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IN THE CIRCUIT COURT OF CLARK COUNTY
STATE OF INDIANA
CITY OF JEFFERSONVILLE, INDIANA,
FOR THE USE AND BENEFIT OF THE
JEFFERSONVILLE SANITARY BOARD,
Plaintiff,
v. Case No. 117001- 1112 -PL- 0 / 3
AMERICAN LEGION AUXILIARY
LAWRENCE CAPEHART UNIT #35, INC.
(f/k/a The Lawrence Capehart Post No. 35 of
the American Legion of Jeffersonville, Clark
County, Indiana),
Defendant.
ORDER APPROVING SETTLEMENT AGREEMENT
This court having carefully reviewed the Settlement Agreement tendered by the p. 'es
hereinabove, and finding such agreement to be fair and equitable on its face, now finds that uch
Settlement Agreement should be approved and entered of record in this cause.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the a ' ' ve
Settlement Agreement by and between plaintiff, City of Jeffersonville, Indiana, for the use and
benefit of the Jeffersonville Sanitary Board, and defendant, American Legion Auxi iary
Lawrence Capehart Unit #35, Inc. (f/k/a The Lawrence Capehart Post No. 35 of the Ame i'can
Legion of Jeffersonville, Clark County, Indiana), is approved in all respects.
Dated: , 2011
DANIEL E. MOORE, Judge,
Clark Circuit Court
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Tendered by: Amy J. Burnette, #21630 - 10
Distribution:
John G. Montgomery, 417 East Court Avenue, Jeffersonville, IN 47130
Amy J. Burnette, APPLEGATE FIFER PULUAM LLC, 428 Meigs Avenue, Jeffersonville, IN 47131-
1418
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