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HomeMy WebLinkAboutLake Forest Homeowners/UtilitieAGREEMENT APPROVED, AS 1'O FORM BY: This Agreement is made and entered into by and between the City of Carmel, Indiana, by and through its Board of Public Works and Safety ("City"), and the Lake Forest Homeowners' Association, Inc. ("Association"). WHEREAS, the Lake Forest Subdivision (''Lake Forest Subdivision") is located north of 116th Street between Gray Road and Hazel Dell Parkway in the City of Carmel, Indiana, and contains three (3) lakes (individually and collectively referred to as "the Lakes"); and WHEREAS, the Association has contended that the City is responsible for changes in the water levels of the Lakes, a contention that the City denies; and WHEREAS, the Association is concerned about the low water levels in the Lakes and has asked the City for assistance in raising the water levels therein; and WHEREAS, such assistance by the City to the Association is reasonable, prudent and in the best interests of the public; and WHEREAS, the parties wish to abate the problem of periodic low water levels in the Lakes, without any admission on the part of any party as to any fault or as to the cause(s) of the changes in water levels therein. NOW, THEREFORE, the City and Association agree and warrant as follows: 1. The City will install a pump station ("Pump Station") for the Association near a lake located at the southwest comer of 116th Street and Hazel Dell Parkway (the "Feeder Lake") and, in association therewith, run a six inch (6") pipe from the Pump Station into one or more of the Lakes. These improvements are collectively referred to hereinbelow as the "Project." 2. The Project will include two (2) valves which will allow the Association to manually direct the discharge of water into the Lakes from the Pump Station. 3. The City is the owner of the Pump Station, as well as of the pump, pump starter, water control valves, pipes, electrical wiring, control parts, and the other components of the Project (collectively the "Project Components"), and shall remain responsible for the routine maintenance thereof. However, the maintenance and/or repair of equipment owned by any electrical provider, as well as any unscheduled maintenance and/or any mechanical repairs in excess of Seven Hundred Fifty Dollars ($750.00) on or to one or more of the Project Components, shall not be the financial responsibility of the City. 4. The Pump Station will be powered and separately metered by an electric utility company. The Association agrees to use reasonable care in its use and operation of the Project Components. 5. The City has informed the Association, and the Association agrees, that the Project may not completely fdl the Lakes and that the pumping of water through the Pump Station will be required on a nearly continuous basis in order to raise and maintain a higher water level in the Lakes. 6. The Association agrees to pay the City, within fifteen (15) days from the effective date of this Agreement, the total sum of Five Thousand Dollars ($5,000.00) as the Usage Fee (hereafter defmed) for 2002 and all prior years. For calendar year 2003, the Association shall pay the City a prorated amount (based upon an annual Usage Fee of Two Thousand Five Hundred Dollars ($2,500.00)) calculated upon the mutually agreed date in 2003 when service (i.e., pumping) under this Agreement is resumed. Thereafter, on or before January 15th of each succeeding year, commencing in 2004, in which this Agreement is in effect, the Association agrees to pay the City the sum of Two Thousand Five Hundred Dollars ($2,500.00) per calendar year, such payments being for the use of the Project Components and for the City's routine scheduled maintenance thereon (the "Usage Fee"). The City may revise the Usage Fee amount annually, by providing notice of a Usage Fee change to the Association on or before November 15th of the year immediately preceding the calendar year in which the new Usage Fee takes effect. However, the City may not increase its Usage Fee more than once nor by more than fifteen percent (15%) in any single calendar year. The Association shall, within thirty (30) days of its receipt of the City's notice of a Usage Fee change, notify the City that it either accepts the new Usage Fee amount or terminates this Agreement, effective on the date immediately preceding the date on which the new Usage Fee takes effect. The Usage Fee shall be paid to the City by the Association on or before the fifteenth day of January in the calendar year for which it applies. 7. It is the intent of the City that this Agreement be renewed by successor City administrations so long as they believe that it remains in the best interest of the City to abate the problem of low water levels in the Lakes. However, notwithstanding the above, either party may, by notifying the other on or before November 15th of any year in which this Agreement is in effect, terminate this Agreement as of December 31~ of the year mediately subsequent to the year in which written notice is given (i.e., notice given on 11-15-02 will cause Agreement to terminate on 12-31-03). If the Agreement is terminated, the City may, in its sole discretion, remove or abandon in place some or all of the Project Components. 2 8. The Association agrees to timely pay in full all bills for electric utility service, for unscheduled maintenance and/or any mechanical repairs in excess of Seven Hundred Filly Dollars ($750.00) of, to or for the Project or Project Components (hereafter defined as "Major Repairs"), and the City shall not be responsible for the payment of same. The City shall notify the Association of any Major Repairs which are necessary, together with an estimate of how much the Major Repairs would cost. Upon such receipt of such notice, the Association, acting through its Board of Directors, shall exercise one of the following options: a. Notify the City in writing that the Association consents to such Major Repairs at the Association's expense, with the Major Repairs to be performed by the City; or b. Notify the City in writing that the Association does not consent to the Major Repairs and terminate this Agreement. 9. The City represents that it has placed a portion of the Project on property owned or controlled by the City and has placed a portion of the Project on and draws water for the Project from land not owned by the City. The City represents that it has obtained all necessary permissions (the "Third Party Permissions") fi'om Third Parties to install the Project Components on and draw water from all property not owned or controlled by the City. To the extent such property is owned by the Association, the Association hereby grants to the City permission to use said property for the Project and the Project Components as additional consideration for the City's execution of this Agreement. As a condition precedent to the validity of this Agreement, the City shall obtain recordable easements and/or rights of entry for Third Party Permissions in such form as is reasonably satisfactory to the Association, which easements and/or rights of entry shall run with land of such Third Parties, their heirs, successors and assigns, and the City shall record the same with the Office of the Recorder of Hamilton County, Indiana. The Association agrees to obtain all other written agreements as to the Third Party Permissions. If any of the Third Party Permissions are withdrawn or terminated for any reason at any time, this Agreement shall immediately terminate, without penalty. However, unless permission for the Project is withdrawn by the Association itself, the City shall reimburse the Association, within sixty (60) days from such withdrawal date, the full Usage Fee paid by the Association for the year in which the Agreement terminates in accordance with this paragraph. 10. The Association and the City each warrant that they are authorized to execute this Agreement, that the person whose signature appears below for same is duly authorized to represent and bind the party or parties on whose behalf the signature appears, and that this Agreement shall, upon 3 execution by both parties hereto, be binding on the Association and on the City, as well as on their respective successors and assigns. 11. Subject to the terms of the warranty contained in paragraph 10 hereinabove, the Association releases the City, its officers, officials and employees fi.om and against any and all claims, actions and causes of action whatsoever, and in whatever form, whether known or unknown, patent or latent, that the Association had, has, or may have that arise from or relate to any change in the water level of the Lakes, the operation or use of the Pump Station, flow control valves, pipes or other Project Components and/or to the Project itself. 12. If an owner of a Lot in the Lake Forest Subdivision sues the City for any matter which relates to this Agreement, the City shall give written notice to the Association of the filing of suit. At any time after sixty (60) days after such notice, the City may, in its sole discretion and without penalty, terminate this Agreement. 13. The effective date of this Agreement shall be the date on which it is last executed by a party hereto. SO AGREED CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: .a · , /~ l&4tes Brainard, Presidinu Officer ' IVl~ry Ala~urk, M9¢~/ Date: /' ~ ~/~ ~ ~ 4e[nber ATTEZ: ~IAlvlC, Date: LAKE FOREST HOMEOWNERS' ASSOCIATION, INC. BY: M. J. SeeVman, President Date: mamra K.~Munn, Sec~'~etary Date: Federal ID#: 35-1839467