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HomeMy WebLinkAbout3.0 Satisfaction of ConditionsATTORNEYS DAN KERST dan@kerstlaw.com WILLIAM J. LYNE bill@kerstlaw.com KELLY CAVE kelly@kerstlaw.com KERST & ASSOCIATES, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW Kathy Eastley Garfield County Building & Planning Department 108 8th Street, Suite 401 Glenwood Springs, CO 81601 Re: Dutton Exemption File #: 13519 823 BLAKE AVENUE, SUITE 202 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 FACSIMILE: (970) 945-2440 January 14, 2011 PARALEGAL ELISABETH GETZEN egetzen@kerstlaw.com RECEVEfl JAN 1 4 2011 GARFIELD COUNTY BUILDING & PLANNJNG Via Hand Delivery Dear Kathy: I am writing on behalf of my client, Nathan Dutton, submitting the final documents for the Dutton Minor Exemption. Attached are the following documents for your review: 1. Signed Final Mylar. 2. Well Sharing Agreement (unsigned). The Well Sharing Agreement will be executed upon conveyance of one of the lots to Mr. Dutton's son, Colin Dutton. 3. Check in the amount of $200 for the fee -in -lieu of School Land Dedication. One of the Director's requirements in his letter dated July 19, 2010, was to provide the Well Construction Report for well permit number 279469. This well permit had an error that has since been resolved after numerous conversations with the Colorado Division of Water Resources (the "Division"). The well on the property was drilled in 1980 under permit number 113990. No Well Construction Report was filed by the driller at that time, and permit number 113990 expired. Permit number 279469 was issued in 2008 with an incorrect legal description. To clean up this error, the Division asked Mr. Dutton to resubmit his well application for 113990 (attached). The well application includes notes from the Division that provide that permit number 279469 (the current permit with an incorrect legal description) would be cancelled upon issuance of the new permit for permit number 113990. Rather than submit a Well Construction Report, the Division requested an Existing Well Information and Inspection Report for well permit number 113990 (see attached and an explanatory letter dated November 10, 2010 from my office). With this information, the Division issued permit number 284739 (attached). The Well Sharing Agreement references this new permit number for the actual well serving Mr. Dutton's forty (40) acres. We believe that the attached information should satisfy the Director's request for additional information on the well serving the property. January 14, 2011 Page 2 Please contact me if you have any questions. xc: Nathan Dutton (w/o enclosures) WATER WELL SHARING AND MAINTENANCE AGREEMENT THIS AGREEMENT is made and entered into on this day of January, 2011, by and between Nathan Dutton ("Nathan") and Colin Dutton ("Colin"). WHEREAS, Colin owns Lot 1 and Nathan owns Lot 2 of the Dutton Subdivision Exemption according to the Dutton Subdivision Exemption Plat recorded on , 2011 in Book at Page in the real estate records of the Garfield County, Colorado Clerk and Recorder's office. Lot 1 and Lot 2 are collectively referred to as the "Lots." WHEREAS, the current owners of Lot 1 and Lot 2 and their successors in interest are to be the joint owners of a water well constructed under Colorado Division of Water Resources Well Permit No. 284739 (the "Well") and shall be joint owners of the water well and casing as constructed and installed and of the water to be diverted by said well system for providing ordinary household use in up to three single-family dwellings, irrigation of up to one acre of home gardens and lawns, and the watering of domestic animals, poultry and livestock, on the respective properties of the parties; and WHEREAS, the Well and casing and pump shall be utilized by said owners as a lawful water right; and WHEREAS, the Well and water system required is drilled and completed and will require continuing maintenance and operation, the costs of which must be borne by the owners and users thereof; and WHEREAS, said owners as parties hereto desire to enter into this Agreement for the purpose of clarifying respective rights and duties and establishing recorded non-exclusive easements and procedures for jointly operating the Well and delivering water to the Lots, for providing a method for equitably dividing the water derived from operation of the system, and for equitably allocating the shared payment of costs of operation and maintenance of the water well and its pump and other structures by all of the parties. NOW THEREFORE, in consideration of the mutual obligations, promises, and covenants set forth herein, and the due performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including but not limited to the acceptance of the benefits and detriments deriving herefrom, the above-named parties agree as follows: 1. Each of the respective owners of Lot 1 and Lot 2 shall be deemed to own an undivided one-half (1/2) share of the subject well permit, Well, pump, fittings at the well head, meters (whether existing now or to be installed at a later time), pump house, foot valves, and any pipes or pipelines and any other structures which are jointly used. 2. No owner of the Lots are deemed to have any ownership right in and to any pipe, pipeline or other structure used or required solely by the owner of another of the Lots which may utilize any portion of the water flowing from this water well and its structures. This Agreement does not intend to relate to such individually owned or used rights or structures. Nothing in this Agreement shall be construed to give any party any rights to such non -shared property of other parties nor to obligate any party to pay any costs associated with non -shared structures. 3. The parties shall cooperate with each other at all times in all matters necessary to promote the proper construction, completion and functioning and use of the water system in such manner as to provide to their respective uses an optimum water supply on demand at all times possible based upon the natural availability of water. The parties agree to not waste water and to endeavor to use no more than their respective shares of the available water. Waste or over -use shall be deemed to be a material breach of this Agreement for which the non -defaulting party may seek remedy at law or equity for damages or for injunctive relief, or both. Unless otherwise agreed by each owner, no owner of one of the Lots shall use more than one-half (1/2) of the water legally allocated to the well (i.e. 7.5 g.p.m.). In the event the water physically available from the well is less than the legally available amount, then each owner shall proportionately reduce the consumption of same to one-half (1/2) the amount actually available. In no event shall the well be pumped at a rate exceeding the permitted amount. Any household use of the well water must provide for return flow through an individual sewage disposal system of the non -evaporative type, returning the water to the watershed in which the well is located. 4. The actual and continuing costs of operation, maintenance, extension, upgrading, cleaning, repairing and all other work required on shared components of this water system to cause the water at the well to become and remain available to deliver water to the parties shall be shared by the parties in proportion to their share in the Well. This Agreement shall relate only to costs incurred after the date hereof. Electrical charges for the operation of the Well and any augmentation water, if necessary, shall be shared equally. 5. Subject to the provisions in paragraph 4, above, any party who has been using water from this system and at any time elects not to share in costs, necessary repairs, maintenance, replacement, and similar requirements which are necessary to maintain the water well and deliver the subject water, shall not receive water from the system. At such time as said electing party chooses to resume use of water from the system said party may do so upon reimbursement to the other user the full cost of said party's share of such expenditures with legal interest retroactive to the expenditure date. 6. The owners agree to cooperate in the future maintenance, operation, repair, replacement or improvement of all common facilities. In the event the owners are unable to agree on any required maintenance, repair, replacement or improvement, any owner shall be entitled to undertake the minimal maintenance, repair, replacement or improvement necessary and essential for proper functioning of the common facilities. In the event an owner determines to undertake such work unilaterally, such owner shall notify the other owner in writing. The owner undertaking the work shall, upon completion, provide the other owner with a written statement of work performed and the other owner's proportionate share of the cost of same. In the event an 2 owner fails to pay the proportionate share of any amount due within thirty (30) days after presentment, the owner which has paid such cost and expense shall be entitled to pursue any remedy available at law or in equity for a breach. The court, in its discretion, may award to the prevailing party court costs and attorney's fees incurred. 7. Nathan and Colin as the owners of the Lots, hereby grant and dedicate across that portion of Lot 2, Dutton Subdivision Exemption, designated on the final exemption plat thereof, as necessary and sufficient for this Agreement to be performed for the benefit of the respective owners of Lots 1 and 2, as users of the shared well, pump, and common pipeline and treatment system, and also grant a non-exclusive easement for non -shared or individual pipelines conveying water to the respective Lot over and across the easement. Said Easement shall be ten (10) feet in diameter, the center of said Easement being the well as constructed and existing on the date hereof. The Owners of the Lots shall not install any improvements in the easement area that may affect the use and operation of the well and pipelines including but not limited to structures of any kind, trees or other landscaping other than grass or easily removable and replaceable landscaping. 8. Each party agrees to not interfere at any time with the proper use by any other party of its interest in any water structure and shall indemnify and hold harmless all other parties and users from any loss or damage or injury caused by the acts of said indemnifying party. 9. This Agreement shall be binding upon and inure to the benefit of the parties, their heirs, devisees, executors, administrators, assignees, transferees, and successors in interest, and the easements and covenants granted or agreed to herein shall be deemed to run with the land and shall encumber the land of each party for the benefit of the properties of the parties as described herein. Upon execution by the parties, this Agreement shall be recorded in the records of the Garfield County Clerk and Recorder's Office, and shall run with the lands identified herein. 10. This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. No promise or undertaking has been made by any party, and no understanding exists with respect to the transaction contemplated, except as expressly set forth herein. All prior and contemporaneous negotiations and understandings between the parties are integrated and merged into this Agreement. 11. This Agreement may be amended from time to time by a written instrument executed by the owners of the Lots. 12. The laws of the State of Colorado shall govern the validity, effect and construction of this Agreement. IN WITNESS WHEREOF, the parties have signed this Agreement on the date stated above. Nathan Dutton Colin Dutton 3 STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me on this day of January, 2011, by Nathan Dutton. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me on this day of January, 2011, by Colin Dutton. Witness my hand and official seal. My commission expires: Notary Public 4 Foran GWS -44 (07/2009) 01/1/2008 01:22 9702851920 NATE DUTTON PAGE 03/'04 • COLORADO DIVISION OF WATER RESOURCES DEPARTMENT OF NATURAL RESOURCES 1313 SHERMAN $T/,, RM 818, DENVER, CO 80203 phone — info: (303) 866+3687 main_ (303) 866-3581 fax: (303) 8653589. http://w1n(w.water.state,co_us RES 1 DENTIAL Note: Also use this form to apply for livestock watering Water. Well Permit Application Revfeliii'form Instructions prior to Completing form. The forth must be completed, In black or blue Ink or typed, Office Use Only 1: Applicant Information Marne of appCont el Ing e d ss eta one &TE (q7e) 969 i ? R jgore -pip code CD E435 E-mail (opts -074) ) 2. Type Of Application ❑,. Construct .new .wetl.... ❑ Replace existing well (ia'rise existing well ❑ Change or increase use (check applicable boxes) ❑ Change source (aquifer) 6. Use Of Well jcheck applicable boxes) See instructions to determine uses) for which you may qualify ❑ A, Ordinary household use in one single-family dwelling (no outside use) B. Ordinary household use In 1 to 3 single-family dwellings: Number of dwellings: giHome garden/lawn irrigation, not to exceed one acre; area irrigated ❑ sq, ft. 0 acre 121 Domestic animal watering — (non-commercial) ❑ C. Livestock watering (on farm/ran cWVrange/pasture) . Reapplication (expired permit) 7. Well Data (proposed) 0 Rooftop prebip. collection Maximum pumping rate 0 Other 3., Rsf®r To (if applicable) war Corrine e :2.J/3 fig? bas mated kaain oetermtneaon 8 Water Goun wee A Watt name of ti 9Pm Total depth AO feet Annual amount to De withdrawn 16 AQutrer acre-feet 8. Water Supplier 4. Location Of Proposed Well County d•' Tin /! a At Lt/ 1/4 of the ,/� E 1/4 Section Talonshlp rd or 5 Range ' E or W Principal Meridian s an wdl from avow Ines (ee on linea ere t pic/. Dyynnot property linos) --E--11-1-0,...n.-6i. w PI. eUm l!7 tri ❑ cu J d Fl. from W •orr6 aceinant waifs only - distance and dinaLtion from of wet to now well Is this parcel .within boundaries of a water service area? ❑YES Ivo If yes, proyide name of supplier: Important! See Instructions) 9. Type Of Sewage System feet dineetion Septic tank / absorption leach field ❑ Central system: District name; ❑ Vault: Location sewage to be hauled to: ❑ Other (attach copy of engineering design and report) Wall Iorsigdn act (Include sty, state, ZtP) Check (f wall address is same. as In Item 1. The making of false statements herein constitutes perjury in the second 10. Proposed Well Driller License #(optional); 11. Signature Of Appllcant(s) Or Authorized Agent optional: GP& weh(locaton lnformatlort In UTM formal, GPS unit settings are as follow*: Format must be' UTM ❑ Zone 12or❑Zone 13 Unlit must be Meters Datum must; be NAD99 Northing: Unit roue(De set to true north Was 0P8 unit oneake4 Tor e,ow? [J, ..AorlwAaboe4o• suoLPwtbrw4e•eintg degree, which is punishable as a glasa 1 misdemeanor pursuant to C.R.S. 24-4;104 (13)(a), I have rad the statements herein, know the coptents thereof and state that they are'true to my knowledge. Sign here (Mutt be orrginal ugrsituro) ,. ]'Oslo Print o tit a 5. Parcel On Which Well Will Be Located (YOU MUST ATTACH A CURRENT DEED FOR THE SUBJECT PARCEL) A. You must cneck and Complete one of the following: ❑ Subdivision Name Lot .. . Block Filing/Unit ❑ County exemption (attach copy of courtly approval & survey). Namef Lot # ❑ Parcel less than 35 acres, not in a subdivision, attach a deed wIth metes and bounds description recorded prior to June 1, 1972, and a current deed ❑ Ifling claim (attack) a Dopy of tho dead or curvoy): Name/ 11 Square 46 acre parcel as described in Item 4 ❑ Parcel of 35 or more acres. (attach metes and hounds description or sunrsy) ❑ Other (aged) motet) & bounds description or survey and supporting documents) B. 8 of ewes Inbarcel _.--- D. win tnie be the only well on ante parcel? E, State Parcel PO (optio11H1): you Ilia owner of this parcel? IV ES ❑ NO (It no -ase Instructlans) ES ❑ No Or no - list other wells)W USGS map name pWR ihep no. 'SuRace,eiev. r � c3`i.cv (N ..) \;N ') T ..(Aft-) ssmtert camel Tndnl Tran Arran $101100 -r9Mw' CHECK 4r CileoK Number: 00 �2B5 AQUAMAP �•-j.. O i f .I _ 4 Ci1t4ii�.....- �lRF-¢ ��T.�.__,�r,_.__.._.....-'-'---- WE - 1 / 3 99O — e,to WR a79i�3 �Y15 'Pend' (Gsrr)(e( CWCB Attki /A - G:40 Ai TOPO ?It> 444 MYLAR 565 DIV WD qi- BA MD /1-6444 , / 7 4 5 e. c tP Cre-, r e , -7•19'60, 01/04/2008 21:55 9702851920 NATE DUTTON PAGE 02102 Form No. GWS -68 2/2005 PERMIT NO: EXISTING WELL INFORMATION AND INSPECTION FORM Division of Water Resources, 1313 Sherman St., Rm 818, Denver, CO 80203 PLEASE COMPLETE THIS FORM IN BLACK INK 113990 RECEIPT NO: 3645803 DIV: 5 WD: 45 Existing Well Location: Nw 1/. of the NF Y,t, Sec. 12 , Twp AR , Rng 9GUT 6.01, P.M. 1155 feet from N/S sec. line, 1832 feet from the EIW sec. line; County Garfield Existing well owner: Name: Nti,an N n+Lttrr Mailing Address: annn __CR Zpti City/State/Zip ..., _ . - . , Telephone: ( ) $5 192 Description of parcel (subdivision, lot, bik, fig) W'14 N� �y Sri^ 12� qui S�iie _4(4_ ac Existing well locatlo Type of Existing Well: Drill Distance to nearest ser Distance to nearest leach field (approximate) app feet Is the well in a clean and sanitary location? yFS Is the well maintained in a clean and sanitary condition? Yes Is the ground at the surface sloped away from the well for proper drainage? Is the surface surrounding the well firm and stable? )' F.5 Is the well situated in a well house or vault? � If so, is the well house or vault in good repair and condition? Y ES' Existing well construsalon and materials: If stating no, please explain Is the well equipped with a sanitary well seal/cap? Y E S Is the well constructed with steel casing at the surface? 7 e' Does the casing extend at least one (1) foot above the surface? Y FS Casing size in; Estimated well depth al 5 feet Who constructed well? Mclure Dril ing ; Who installed pump? Nf}THl9-A/ Dec TJ A) Current uses of existing well: Were the existing uses initiated prior to May 8, 1972? Nb x Householdand/or use ingarden 1-3 single-family dwellings X Watering of poultry and/or domestic animals if Watering of livestock on farm or ranch; approximately how many head? Is this aProtection feedlot? ; How many head? x Lawn ,�r�o square feet /(/pq Crop Irrigation Fire acres X /WA Commercial exempt for Other: Estimated date well .constructed s . o 15. 19e0 Estimated date pump installed 4//9/ /D iv Estimated date of first use A//4- yid JgR/ ; Estimated flow rate 8 f gpm How many other wells are locat d on this parcel? 0 ,; Uses: • PermltlCase Nos.: . _ Date: 9- �� - Rojo visual conditions: If stating no, please explain Hand Dug, Spring Well, Gallery Well, Gravel Pit, Other ank/sewer line (approximate) 3 7 5 feet Y� s Existing Well Owner Signature_ For Office Use Only Has information above been verified? If not, please note accordingly. List any problems you have identified: (if none, please state so) Date of inspection: Phone Number Inspected by (print): (signed): Attach photo(s) if available or needed for further evaluation. Additional comments or information on back. KERST & ASSOCIATES, P.C. ATTORNEYS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW DAN KERST dan@kerstlaw.com WILLIAM J. LYNE bill@kerstlaw.com KELLY CAVE kelly@kerstlaw.com 823 BLAKE AVENUE, SUITE 202 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 FACSIMILE: (970) 945-2440 November 10, 2010 Colorado Division of Water Resources Department of Natural Resources 1313 Sherman St., Room 818 Denver, CO 80203 Via Facsimile (303) 866-3589 and Regular Mail Re: Nate Dutton Our File # 13519 To Whom It May Concern: PARALEGAL ELISABETH GETZEN egetzen@kerstlaw.com My client, Nathan Dutton, has a well in Garfield County that does not have a correct legal description. My client contacted the Division to discuss the error in the physical location of the well listed on his permit. The Division informed my client that several wells in this area have incorrect locations. Apparently, Nathan Dutton's well permit included a legal description for a well located on his brother, David Dutton's property and David's well permit had a legal description on his brother Nathan's property. To clean up the incorrect locations, my client and his brother, David Dutton, resubmitted their well permit application forms. David Dutton's application was approved, but Nathan Dutton's permit has not been modified. Attached is Nathan Dutton's application for well permit number 113990 for the well drilled in 1980 with the correct legal description. The well driller apparently failed to submit a well construction report for this well, and this driller is no longer in business. Per my discussion with John from the Division in September of this year, I was informed that we did not need to submit a well construction report, but rather needed to submit an Existing Well Information and Inspection Form for 113990. This was faxed to the Division on September 20, 2010, but it was not entered into the Division's system as received. We are waiting on this corrected information to submit to Garfield County as part of an approved subdivision exemption. We cannot proceed with this exemption until the well permit issue is resolved. Thank you for your assistance. Please contact me with any questions. Enclosure Xc: Nathan Dutton Ver truly curs, 1I KELLY ' • VE Form No. GWS -25 APPLICANT OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES 818 Centennial Bldg., 1313 Sherman St., Denver, Colorado 80203 (303) 866-3581 NATHAN N DUTTON 4000 CR 306 PARACHUTE, CO 81635- (970) 285-1920 PERMIT TO USE AN EXISTING WELL EXST WELL PERMIT NUMBER 284739 DIV. 5 WD45 DES. BASIN MD APPROVED WELL LOCATION GARFIELD COUNTY NW 1/4 NE 1/4 Section 12 Township 8 S Range 96 W Sixth P.M. DISTANCES FROM SECTION LINES 1155 Ft. from North 1832 Ft. from East Section Line Section Line UTM COORDINATES (Meters,Zone:13,NAD83) Easting: Northing: ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT CONDITIONS OF APPROVAL This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this permit does not ensure that no injury will occur to another vested water right or preclude another owner of a vested water right from seeking relief in a civil court action. Construction details for this existing well have not been provided to this office; therefore, it is not known if the construction of this well is in compliance with the Water Well Construction Rules, 2 CCR 402-2. The issuance of this permit does not relieve the well owner of responsibility or liability in the event contamination of the groundwater source results from the construction or use of this well, nor does the State Engineer assume any responsibility or liability should contamination occur. Approved pursuant to CRS 37-92-602(3)(b)(II)(A) as the only well on a tract of land of 40.00 acres described as the NW 1/4 of the NE 1/4, Sec. 12, Twp. 8 S, Rng. 96 W, Sixth P.M., Garfield County. The use of ground water from this well is limited to fire protection, ordinary household purposes inside not more than three (3) single family dwellings, the watering of poultry, domestic animals and livestock on a farm or ranch and the irrigation of not more than one (1) acre of home gardens and lawns. The pumping rate of this well shall not exceed 15 GPM. The return flow from the use of this well must be through an individual waste water disposal system of the non -evaporative type where the water is returned to the same stream system in which the well is located. This well must be located not more than 200 feet from the location specified on this permit. NOTE: Expired permit no. 279469 was previously issued for this lot. �j /,7:5 oa APPROVED JSG `Receipt No. 3645803 iri) State Engineer / B DATE ISSUED 12-30-2010 By DATE N /l KERST & ASSOCIATES, P.C. ATTORNEYS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW DAN KERST dan@kerstlaw.com WILLIAM J. LYNE bill@kerstlaw.com KELLY CAVE kelly@kerstlaw.com Kathy Eastley Garfield County Building & Planning Department 108 8th Street, Suite 401 Glenwood Springs, CO 81601 Re: Dutton Exemption Our File #13519 Dear Kathy: 823 BLAKE AVENUE, SUITE 202 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 FACSIMILE: (970) 945-2440 February 2, 2011 PARALEGAL ELISABETH GETZEN egetzen@kerstlaw.com Via Hand Delivery I am writing on behalf of my client, Nathan Dutton. I enclose a check for $21.00 for the recording of the signed final mylar. Please contact me if you have any questions. Sincerely, Pilar Grabe Assistant to KELLY CAVE Xc: Nathan Dutton (w/o enclosures) M 3cti m,GAc 5a)G1 411 10 Tv.