131st at Hazel Dell - Lyn wood Farm Associates EASEMENT AND COVENANTS
RESPEC'T'ING WATER WELL PROPERTY
THIS AGREEMENT, entered into as of the 18th day of May, 1994, by and
between the CITY OF CARMEL, INDIANA, acting by and through THE CARMEL
BOARD OF PUBLIC WORKS AND SAFETY (hereinafter referred to as the "City
and LYNNWOOD FARM ASSOCIATES, L.P., an Indiana limited partnership
(hereinafter referred to as "Lynnwood
WHEREAS, Lynnwood is the owner of approximately 535 acres of real estate in
the City of Carmel, Indiana, commonly known as Lynnwood Farm "Lynnwood Farm
and Lynnwood is in the process of developing Lynnwood Farm, including approximately
195 acres thereof (the "Plum Creek Golf Course Property for which the Carmel Board
of Zoning Appeals has approved a Special Use Application under Docket No. SU -8 -94
for the construction and operation of a golf course (intended to be named and herein
called "Plum Creek Golf Course pursuant to plans filed with the Department of
Community Development.
WHEREAS, the City is seeking to expand its capacity for water delivery service
by locating new well sites suitable for water production, and Lynnwood allowed the City
to enter upon Lynnwood Farm to drill test wells as a part of its project of mapping
potential high water production areas in the City of Carmel.
WHEREAS, one of the test wells, drilled near the planned fairway for one of the
playing holes on the Plum Creek Golf Course Property, is located within an area
identified as a potential high production area (the "Test Well
WHEREAS, the use of the Test Well for production purposes would save the
potential cost to the City of drilling a new production well, and the City has indicated a
willingness to pay $40,000 to acquire a well site as depicted on Exhibit A, attached
hereto, consisting of the Test Well, an immediately surrounding area of approximately
10' by 50' (the "Well Head Site," as more particularly described on Exhibit A -1 attached
hereto and made a part hereof) and a surrounding area (including the Well Head Site)
of approximately 5 acres (the "Well Property," as more particularly described on
Exhibit A -2 attached hereto and made a part hereof).
WHEREAS, Lynnwood has expended substantial sums in the acquisition,
planning and development of Lynnwood Farm and Plum Creek Golf Course, and
planning and development has proceeded to the stage that the costs to reconfigure the
Plum Creek Golf Course, if that is even possible, would be several million dollars, and
the consequential damages of doing so, in terms•of the diminution in the value of the
course, are incapable of estimation, and, therefore any loss of the Well Property would
be tantamount to a Toss of the entire Plum Creek Golf Course.
WHEREAS, Lynnwood nonetheless agreed to convey, and is by separate and
related DEED OF GIFT FOR WATER WELL PURPOSES (the "Deed executed by
Lynnwood on or about the date of execution of this instrument by Lynnwood, conveying
the Well Property to the City, as a charitable gift and not a sale, provided that
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(a) Lynnwood reserves full rights to possess and use the Well Property, to the same
extent as if Lynnwood were the owner of said property, except that Lynnwood's use shall
be limited to golf course purposes, all as more particularly provided herein, and (b) the
City's use of the Well Property shall be limited to water well purposes, on the terms and
conditions set forth herein.
WHEREAS, the City favors the development of golf courses, including the Plum
Creek Golf Course, as a means of preserving open space and recreational facilities; the
City would have incurred additional drilling costs, as well as land acquisition costs, to
obtain an alternate well access to the production are in the vicinity of the Well Property;
and the City, by its execution hereof, has accepted and agreed to the terms and
provisions of the Deed of Gift for Well Purposes, including the rights reserved to
Lynnwood herein, on the terms and conditions set forth therein and herein.
NOW, THEREFORE, in consideration of the premises and the
agreements contained herein and in the Deed, Lynnwood and the City agree that:
AGREEMENT
1. Easement and Rights Reserved to Lynnwood. Lynnwood, for itself and its
successors and assigns, reserves an exclusive, perpetual and irrevocable easement and
rights to use the Well Property, including full rights to possess and use the Well
Property to the same extent as if Lynnwood were the owner of said property, except that
Lynnwood's use shall be limited to golf course purposes, including but not limited to the
construction, installation, maintenance, inspection, repair, replacement, reconstruction,
use and operation of an eighteen (18) hole championship golf course on the Well
Property and the Plum Creek Golf Course Property, using any and all construction
materials, landscaping, fixtures, equipment, machines, systems, devices, vehicles and
personal property of whatever kind or nature, and manner, means and techniques of
construction, installation, maintenance, inspection, repair, replacement, reconstruction,
rebuilding, use and operation as are from time to time customary or appropriate for
similarly situated championship golf courses in Indiana or elsewhere in the United States
of America, all notwithstanding the City's use of the Well Property and operation of the
Well (as defined in Paragraph 3) thereon, except to the extent of the City's rights to use
the Well Property as described herein. The easement and rights reserved to Lynnwood
herein are hereinafter called "Lynnwood's Reserved Rights."
2. City's Water Rights and Access Rights. The City agrees, on behalf of
itself and its successors and assigns, that the City's sole purpose in acquiring the Well
Property, and its ownership and use of the Well Property shall be limited forever, to
Water Well Purposes, as herein defined. In connection therewith, Lynnwood hereby
grants an access easement to the City for purposes of ingress and egress to the Well
Property, for pedestrian and vehicular traffic, including trucks and utility vehicles on,
over and across the Access Easement Area, as more particularly described on Exhibit B,
attached hereto and made a part hereof. After the opening of Plural Creek Golf Course,
the City's use of said Access Easement Area shall at no time interfere with the use of
the Access Easement Area by Lynnwood and its invitees and guests, except in an
emergency involving danger of injury to persons or material damage to property.
11 ti r g t n0‘n n I 3
3. Water Well Purposes. As used herein, "Water Well Purposes" shall mean
and include:
a. The right and authority to withdraw, pump and remove ground
water from or through the Well Property in such quantities as the
City sees fit.
b. The right and authority to enter upon the Well Property to install,
construct, maintain, repair, replace, reconstruct and rebuild:
(1) On the Well I-Iead Site, but not on any other portion of the
Well Property, one (1) permanent production well (the
"Well
(2) on the Well Head Site, but not on any other portion of the
Well Property, a building not to exceed four hundred (400)
square feet in floor area, and not more than fifteen feet (15')
in height, of red brick and otherwise in accordance with
plans and using materials approved by Lynnwood;
(3) a security fence on the perimeter of the Well Head Site, but
not on any other portion of the Well Property, which fence
shall not exceed seven feet (7') in height, of chain link or
other material and design approved by Lynnwood;
(4) together with buried collecting pipes, controls, electric lines,
security devices, monitoring wells and other equipment
(hereinafter collectively referred to as the "Well Field
Equipment located elsewhere on the Well Property as
deemed necessary and appropriate by the City, with the
approval of Lynnwood, for the withdrawal and /or
observation of ground water located in or about the Well
Property; provided that temporary facilities and equipment
may he placed above ground on the Well Property prior to
the completion of construction of the Plum Creek Golf
Course, so long as there is no interference with the
construction of the golf course.
All of the foregoing shall he at the City's sole expense. "I'he City
may Install Well Field Equipment anywhere on the Well I lead Site,
but shall not construct, install or maintain any Well Field
Equipment in otlrer.loc.rtions 011 the Well Property which would
interfere with 1 ynnwood's use of the Well Property. The City shall
present the sites for any such Well Field Equipment outside the
Well l"Iead Site to Lynnwood and receive written approval thereof
from Lynnwood prior to installation. The City shall he solely
responsible for the protection of the Well Field Equipment and any
shielding or landscapinw, which may he required to be installed
f4,yt
around the Well Field Equipment. Plans showing the location of
the Well Field Equipment and plans and specifications for any
building or fence permitted hereunder shall be furnished by the City
to Lynnwood. The location of all underground lines shall be
marked on site in a manner approved by Lynnwood. The City shall
provide written notice and copies of any changes in any of the
foregoing made from time to time.
c. The right and authority to enter upon the Well Property to protect
against activities or conditions harmful to the underground water
pursuant to applicable state and federal laws and regulations,
subject to Paragraph 4.
4. Conflicting Activities. The City covenants that its use and enjoyment of the Well
Property shall at no time interfere with or hinder Lynnwood's Reserved Rights. If at
any time the full use and exercise by Lynnwood of Lynnwood's Reserved Rights, for any
reason whatsoever, shall make it impossible, impractical, unfeasible or unlawful for the
City to continue to operate the Well, or there shall otherwise develop a conflict between
the Lynnwood's Reserved Rights and the City's use of the Well or Well Property for
Water Well Purposes, for any reason whatsoever, the City agrees that Lynnwood shall
have no obligation to take any action or incur any cost or expense to enable the Well to
continue operating. If the City determines that a change in Lynnwood's activities would
allow continued operation of the Well, and agrees in a written request for such change
to compensate Lynnwood for all costs and expenses, if any, incurred by Lynnwood in
connection with such change, then Lynnwood will make the change if, but only if and for
so long as Lynnwood shall determine, in its sole discretion, that: (a) Lynnwood is being
fully compensated for all such costs and expenses incurred in connection with the
change, and (b) Lynnwood's use, operation and enjoyment of the Plum Creek Golf
Course is not adversely affected by the change (except for the costs and expenses for
which it is being compensated). Alternatively, the City may cease operation of the Well,
either permanently or temporarily until it again may be possible, practicable, feasible or
lawful to operate the Well without any interference with Lynnwood's Reserved Rights.
5. Abandonment. If at any time the City shall permanently abandon the Well, the
City shall reconvey the Well Property to Lynnwood, and Lynnwood agrees to accept
such conveyance (subject to the City's removal, at its own expense, of any above- ground
improvements located thereon by the City, and capping of the Well, all in compliance
with applicable laws). This Agreement shall terminate automatically upon any such
reconveyance.
6. J Authority. Each of the persons executing this Agreement in a representative
capacity represents and certifies that (i) he or she is fully empowered and duly
authorized, by all necessary actions of the party on whose behalf he or she is signing, to
execute and deliver this Agreement, (ii) the party on whose behalf he or she is signing
his full capacity, power and authority to enter into and carry out this Agreement, (iii)
the execution, delivery and performance of this Agreement has been duly authorized by
the party on whose behalf he or she is signing, and (iv) this Agreement is the legal, valid
and binding obligation of the party on whose behalf he or she is signing.
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034 \tny Flynn\ lynncsn 13
7. Interpretation. This Agreement shall be deemed for all purposes to run with the
Real Estate and shall not be revocable or terminable by operation of law or otherwise,
except as expressly provided herein. This Agreement contains all of the agreements and
understandings of the parties hereto and supersedes all other discussions, understandings
and agreements with respect to the subject matter hereof. This agreement may not be
amended, superseded, extended or modified except by an agreement, in writing, signed
by all of the parties hereto.
8. Partial Invalidity. If any term, covenant, condition or provision of this
Agreement or the application thereof to any person or circumstance, shall at any time or
to any extent be held invalid or unenforceable, then this Agreement and the Deed shall
be voidable (with reversion of title as provided in the Deed), at the option of the party
which sought enforcement of such invalid or unenforceable provision, in recognition that
each and every term, covenant, condition and provision of this Agreement and the Deed
are considered,by the parties to be integral to one another and to the parties'
inducement to execute and deliver the Deed and this Agreement.
9. Agreement Binding Upon Successors. The covenants, agreements, rights,
obligations, easements and access rights herein contained shall extend to, bind and inure
to the benefit not only of the parties hereto but to their respective personal
representatives, heirs, successors and assigns, and until any termination of this
Agreement, shall be deemed to run with the Well Property and, with respect to the
burden of the easement over the Access Easement Area, and benefits reserved herein
for Lynnwood's benefit, with Lynnwood's interest in the Plum Creek Golf Course
Property.
10. Documentation Required. The City certifies that for the work contemplated
hereunder by it, it will furnish Lynnwood upon request with any and all documentation,
certification, authorization, license, permit or registration currently required by
applicable laws or rules and regulations of the governmental authorities having
jurisdiction. The City further certifies that it is now in and will maintain its good
standing with such governmental agencies and that it will keep applicable licenses,
permits, registrations, authorizations or certifications in force during the term of this
Agreement.
11. Indemnification and Insurance. The City shall indemnify and hold harmless
Lynnwood and its partners, officers, agents, servants and employees from any and all
claims, including claims relating to water depletion caused by the City's pumping, or
threat of claims, cost, loss, liability, judgment or lien, including reasonable attorney fees
arising out of any acts or omissions made by the City or anyone under its control in any
matter connected with this Agreement. .The City shall maintain at its sole expense a
comprehensive general public liability insurance policy insuring itself and Lynnwood
against all damages arising out of any act or omission of the City, its employees, agents,
or invitees in regard to this Agreement, with such coverages and in such amounts .iti .nc
customarily carried in connection with similar work activities. Upon request, the City
will furnish to Lynnwood a certificate evidencing such coverage and naming Lynnwood
as an additional insured.
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12. Non- Liability of Lynnwood. Lynnwood shall in no way be held responsible, liable
or accountable for damages or injury to property, employees, agents, servants or invitees
of the City arising in any manner from acts or omissions made under or in connection
with this Agreement.
13. Non Assignability. The parties agree that the City may not convey, lease, assign
or otherwise dispose of the Well Property or any portion thereof or of its obligations to
be performed herein without the prior approval of Lynnwood. Consent to any
conveyance, lease, assignment or other disposition of any portion of the Well Property
or the City's obligations under this Agreement shall not be construed to relieve the City
of the primary responsibility for the performance of obligations contemplated by this
Agreement.
14. Water Depletion. The City shall be responsible to the extent required by
I.C. 13 -2 -2.5 in the event local area residents wells partially or totally are depleted of
water due to the pumping of the underground water by the City.
15. Enforcement. Failure to comply with the provisions of this Agreement shall be
grounds for an action by the aggrieved party and such action may be maintained at the
election of the aggrieved party against a non complying party. Appropriate relief in any
action brought to enforce this Agreement shall include, without limitation, damages,
injunctive relief, specific performance, declaratory relief and the recovery of any
damages, costs and reasonable attorney fees incurred by any party successfully enforcing
this Agreement, as well as any and all other remedies available to the aggrieved party at
law or in equity.
IN WITNESS WHEREOF, the parties have executed this agreement on the day
and year first written above.
CITY 0I- INDIANA, acting by and
through THE CARMEL BOARD OF PUBLIC
WORKS AND SAFE'L'Y
By:
Printed Name: Jr:0 „J
Title:
1IG; irJ(�l 1
i' f
LYNNWOOD ,FARM ASSOCIATES, L.Y.
By: /4
Michael l'Arowni G..ncral Partner
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(Ill \nll}'in \Inn iii
STATE OF �d r. itk
SS
COUNTY OF
Before me, a Notary Public for the State of Indiana, personally appeared
the n
)c% -ir1 i3�1�i l��o��:: ,-of THE CARMEL
BOARD OF PUI3LIC WORKS AND SAFETY, acting for and on behalf of THE CITY
OF CARMEL, INDIANA, who acknowledged the execution of the above and foregoing
instrument to be his voluntary act and deed and f r the purposes stated therein.
Da
ie /Y/ 799Y Notary Public
Resident of
County, Indiana
My Commission Expires 1 I' l(�'J., 7 1
STATE OF .J„
SS
COUNTY OF
Before me, a Notary Public for the State of Indiana, personally appeared
Michael G. Browning, the General Partner of Lynnwood Farm Associates, L.P., an
Indiana limited partnership, who acknowledged the execution of the above and foregoing
instrument to be his voluntary act and deed and for the purposes stated therein.
-i r
Notary Public
25
Resident of r
County, Indiana
My Commission Expires
This instrument was prepared by Rory O'Bryan, Attorney at Law, Baker Daniels,
300 North Meridian Street, Indianapolis, Indiana 46204.
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Li 1
N.W. CORNER S.W.1 /4
SECTION 27 -T18N -R4E NORTH UNE S.W.1 /4
SECTION 27 -T1 &V -R4E
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10.00' 8
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A 89'51'44"
R= 200.00'
l 313.68'
1 N89'50'26 250.48'
EXH G A"
EXHIBIT A -1
WATER WELL SITE NO. 1
LAND DESCRIPTION
(WELL HEAD SITE)
PART SW 1/4, 27 -18 -4
Part of the Southwest Quarter of Section Twenty -seven (27) in Township Eighteen (18)
North, Range Four (4) East in Hamilton County, Indiana, described as follows:
Commencing at the Northwest corner of the Southwest Quarter of said Section 27; thence
South 44 degrees 13 minutes 26 seconds East (assumed bearing) a distance of 341.55 feet
to the Point of Beginning; thence North 89 degrees 50 minutes 26 seconds East parallel
with the north line of said Southwest Quarter Section a distance of 10.00 feet; thence South
00 degrees 17 minutes 50 seconds West parallel with the west line of said Southwest
Quarter Section a distance of 50.00 feet; thence North 89 degrees 50 minutes 26 seconds
West parallel with the north line of said Northwest Quarter Section a distance of 10.00 feet;
thence North 00 degrees 07 minutes 50 seconds West parallel with the west line of said
Northwest Quarter Section a distance of 50.00 feet to the Beginning Point, containing 500
square feet, more or less.
\034 \mgblynn \exhLbit al
EXHIBIT A -2
WATER WELL SITE NO. 1
LAND DESCRIPTION
(WELL PROPERTY)
PART SW 1/4, 27 -18 -4
A PART OF THE SOUTHWEST QUARTER OF SECTION 27, TOWNSHIP 18 NORTH,
RANGE 4 EAST IN I-IAMILTON COUNTY, INDIANA AND BEING A PART OF THE
LAND OF LYNNWOOD FARM ASSOCIATES, L.P. F /K /A LYNNWOOD FARM
ASSOCIATES, LTD. (INSTRUMENT NO. 8809203, OFFICE OF THE HAMILTON
COUNTY RECORDER), AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 27; THENCE SOUTH 89 DEGREES 50 MINUTES 26 SECONDS
EAST (ALL BEARINGS ASSUMED) ALONG THE NORTI I LINE OF SAID
SOUTHWEST QUARTER 450.00 FEET; THENCE SOUTH 00 DEGREES 17 MINUTES
50 SECONDS WEST PARALLEL WITH THE WEST LINE OF SAID SOUTHWEST
QUARTER 300.48 FEET TO THE POINT OF CURVATURE OF A CURVE TO THE
RIGHT HAVING A RADIUS OF 200.00 FEET, A RADIUS POINT BEARING NORTH
89 DEGREES 42 MINUTES 10 SECONDS WEST AND A CENTRAL ANGLE OF 89
DEGREES 51 MINUTES 44 SECONDS; THENCE SOUTHWESTERLY, WESTERLY
AND NORTHWESTERLY ALONG SAID CURVE 313.68 FEET TO THE POINT OF
TANGENCY; THENCE NORTH 89 DEGREES 50 MINUTES 26 SECONDS WEST
250.48 FEET TO A POINT ON THE WEST LINE OF SAID SOUTHWEST QUARTER;
THENCE NORTH 00 DEGREES 17 MINUTES 50 SECONDS EAST ALONG SAID
WEST LINE 500.00 ,FEET TO THE POINT OF BEGINNING AND CONTAINING 4.97
ACRES, MORE OR LESS.
SUBJECT TO ALL HIGHWAYS, RIGHTS -OF -WAY, EASEMENTS AND
RESTRICTIONS OF RECORD.
\034 \m xhibu."2