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Home My WebLink About1.02 Declaration of Irrigation Water Use & Maintenance�Kneen NIL liti,101 rl WlCl lilt 11111 Reception#: 827821 11/30/2012 02:23:10 PM Jean Alberico i of 4 Rao Fee:$26.00 Doc Fee:0.00 GARF1ELD COUNTY CO ORR-SMITH SUBDIVISION EXEMPTION DECLARATION OF IRRIGATION WATER USE AND MAINTENANCE A__ THIS DECLARATION is entered into on this/,6i day of , 2012, by Lacy Orr and Gil Smith ("Declarants") whose address is P.O. Bo 87, by, Montana 59829. WHEREAS, Declarants are the owners in fee of that real property described as Lots 1, 2, 3, and 4, Orr -Smith Subdivision Exemption, Garfield County, Colorado. Said Lots 1, 2, 3, and 4 are referred to hereinafter as "the Lots"; and WHEREAS, Declarants also are the owners of a 2.0 cfs, absolute, irrigation and livestock water right in the Young & Hess Ditch, decreed in Case No. 94CW122, District Court, Water Division 5, Colorado ("the Irrigation Water"), the Young and Hess Ditch which runs through Lots 1, 2, 3 and 4, and the diversion structure located on Lot 4; and WHEREAS, by this Declaration, it is the intent of the Declarants to establish a regime governing the joint use of the Irrigation Water by the future owners ("the Owners") of the Lots. NOW THEREFORE, Declarants set forth the regime governing the joint use of the Irrigation Water by the Owners of the Lots as follows: 1. Declarants hereby declare themselves to be an unincorporated non-profit association pursuant to the Colorado Uniform Unincorporated Non -Profit Association Act, known as the Orr -Smith Irrigation Water Users Association ("the Association"). Each Lot shall have one vote in the management and decisions of the Association. The Orr -Smith Irrigation Water Users Association shall be responsible for enforcing and acting upon the terms and provisions contained herein. If, however, the Association fails to take action, these terms and provisions may be enforced and acted upon by the owner of any of the Lots, their successor and assigns. 2. Declarants hereby convey to the Association 2.0 cfs in the Young & Hess Ditch decreed in Case No. 94CW122, District Court, Water Division 5, Colorado, as well as all of Declarants' right, title and interest in and to the related ditch, divider box, lateral(s), individual measuring devices (whether existing now or to be installed at a later time) and any other structures which are jointly used by the Owners of the Lots to receive and use the Irrigation Water (the "Ditch System"). 3. Lot 1 shall be entitled to use an undivided .52 cfs of the Irrigation Water. Lot 2 shall be entitled to use an undivided .39 cfs of the Irrigation Water. Lot 3 shall be entitled to use an undivided .53 cfs of the Irrigation Water. Lot 4 is entitled to use an undivided .56 cfs of the Irrigation Water. 4 1III ln vnivi`ito MRI IsiEIRWICIM III'1111111 Reception#: 827821 11/30/2012 02:23:10 PM Jean Alberico 2 of 4 Rec Fee:$26.00 Doc Fee:0.00 GARFIELD COUNTY CO 4. Neither the Association nor the Owners of the Lots are deemed to have any ownership right in and to any structure used or required solely by the Owner of another of the Lots. Nothing in this Declaration shall be construed to give the Association or any Owner any rights to such non -shared property of another Owner or to obligate any Owner to pay any costs associated with non -shared structures. 5. The Owners shall cooperate with the Association and each other at all times in all matters necessary to promote the proper functioning and use of the Ditch System in such manner as to provide an optimum water supply to the Lots based upon the physical availability of water. The Owners agree to use as much as possible of the allocated Irrigation Water while not wasting water and agree to endeavor to use no more than their allocated shares of the available water. At this time, it is agreed that no individual measuring devices must be installed. If at any time after the date hereof, any Owner requires that individual measuring devices be installed, then each of the Owners shall install meters at his or her own expense. Waste or over -use shall be deemed to be a material breach of this Declaration for which the Association and /or the non -defaulting Owner(s) may seek remedy at law or equity for damages or for injunctive relief, or both. 6. The actual- and continuing costs of the operation, maintenance, extension, upgrading, cleaning, repairing and all other work required on shared components of the Ditch System and other costs necessary to cause the Irrigation Water to become and remain physically and legally available to deliver water to the Owners shall be paid by the Association and reimbursed by the Owners in the proportion that each Owner's Lot is entitled to use the Irrigation Water. Any costs which are directly attributable to the negligent or intentional act or omission of an Owner or Owners shall be allocated solely to that Owner or Owners. Such reimbursement shall be made thirty (30) days after receipt by the Owner(s) of a written statement from the Association identifying such costs. In the event an Owner fails to pay the proportionate share of any amount due within thirty (30) days after presentment, the Association 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. This Declaration shall relate only to costs incurred after the date hereof. 7. Subject to the provisions above, any Owner who has been using water from the Ditch System and at any time elects not to share in costs, necessary repairs, maintenance, replacement and the like necessary to maintain the Ditch System and deliver the Irrigation 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 Owner may do so upon reimbursement to the other users the full cost of said Owner's share of such expenditures with legal interest retroactive to the expenditure date. 8. The Association is responsible for the future maintenance, operation, repair, replacement or improvement of all common facilities of the Ditch System. In the event the Association is deadlocked on the issue of any required maintenance, repair, replacement or 2 1111 11 III Reception#: 827821 11/30/2012 02:23:10 PM Jean Rlberico 3 of 4 Rec Fee:$26.00 Doc Fee:0.00 GARFIELD COUNTY CO 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 Association and the other Owners in writing. The Owner undertaking the work shall, upon completion, provide the other Owners with a written statement of work performed and the other Owners' proportionate share of the cost of same. In the event an 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. 9. Each Owner hereby grants and dedicates permanent, non-exclusive easements across that portion of each Lot as is necessary and sufficient for this Declaration to be performed for the benefit of the Association and the respective Owners as users of the Ditch System. 10. Each Owner agrees to not interfere at any time with the proper use of the Ditch System, Irrigation Water and any other related structures by any other Owner and shall indemnify and hold harmless the Association and all other Owners and users from any loss or damage or injury caused by the acts of said indemnifying party. 11. The term hereof shall be perpetual. 12. This Declaration and the covenants contained herein are intended to and shall run with the titles to those real properties described as Lots 1, 2, 3 and 4, Orr -Smith Subdivision Exemption, Garfield County, Colorado and shall be binding upon and inure to the benefit of the Owners thereof, and their assignees or successors. 13. The laws of the STATE OF MONTANA shall govern the validity, effect and construction of this Declaration. 14. This Declaration may not be modified in any manner except by an instrument in writing signed by the Owners of each of the Lots. IN WITNESS WHEREOF, this Declaration is executed this /G day of , 201 Lacy Orr Ore - 3 ell FA MAO% 1111041114140111111111 Recepilon#: 827821 11/30/2012 02:23:10 PM Jean Rlberi.co 4 of 4 Rec Fee:$28.00 Doc Fee:0.00 GRRFIELD COUNTY CO STATE OF MONTANA ) ss. COUNTY OF RAVALLI ) The foregoing instrument was acknowledged before me on this ! (c, day of , 2412, by Lacy Orr and Gil Smith. Witness my hand and official seal. My commission expires: AV p * NOTARIAL*! z \ SEAL i KATHY L. PETERSON NOTARY PUBLIC for the State o! Montana Reeldl at H§miIt , Montana Myari ®mraMign &PIm Nav®m6®r 12, 2014 4