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HomeMy WebLinkAbout3.0 Declaration of Water Well Use & Maintenancei iniii 1110 1111111 1111 111 iiuu uiuii 111 uiii ilii iui 670663 03/22/2005 10:48A 81672 P58 M ALSDORF 1 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO DECLARATION OF WATER WELL USE AND MAINTENANCE THIS DECLARATION is made this 1/ i� day of /"I at ei - 2005, by Edward Jacob Wilks and Maria Gloria Wilks ("Declarants") whose address is 5101 C.R. 233, P.O. Box 583, Rifle, CO 81650. WHEREAS, Declarants are the owners in fee of those real properties described as Parcel A and Parcel B within the plat of the Wilks Subdivision Exemption, Garfield County, Colorado. Said Parcel A and Parcel B are referred to hereinafter collectively as "the Parcels." WHEREAS, Declarants also are the owners of a water well ("Well") located on Parcel A and permitted under Colorado Division of Water Resources Well Permit No. 234731 for the domestic and irrigation use of not more than three single family dwellings. WHEREAS, by this Declaration, it is the intent of Declarants to establish a regime governing the joint use of the Well by the future owners ( the "Owners") of the Parcels. NOW THEREFORE, the Declarants set forth the regime governing joint use of the Well by the Owners of the Parcels as follows: 1. The Owner ofParcel B shall be deemed to own an undivided one-third (1/3rd) share of the subject Well permit, Well, water tank, pump, fittings at the Well head, meters (whether existing now or to be installed at a later time), pumphouse, foot valves, and any pipes or pipelines and any other structures which are jointly used. 2. The Owner of Parcel A shall be deemed to own an undivided two- thirds (2/3rds) share of the subject Well permit, Well, water tank, pump, fittings at the Well head, meters (whether existing now or to be installed at a later time), pumphouse, foot valves, and any pipes or pipelines and any other structures which are jointly used. 3. No Owner is 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 Parcels which may utilize any portion of the water flowing from this Well and its structures. This Declaration does not intend to relate to such individually owned or used rights or structures. Nothing in this Declaration shall be construed to give any Owner any rights to such non -shared property of the other Owner nor to obligate any Owner to pay any costs associated with non -shared structures. 4. The Owners 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 Owners shall agree to not waste water and to endeavor to use no more than their respective shares of the available water. At uniii 11111 1111111 1111 iii 111111 1111111 III 11111 ini ini 670663 03/22/2005 10:48A B1672 P59 M ALSDORF 2 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO this time it is agreed that no individual water meters must be installed. If at any time after the date hereof, any Owner requires that meters be installed, then each of the Owners shall install meters at their individual expense. Waste or over -use shall be deemed to be a violation of this Declaration for which the non -defaulting owner may seek remedy at law or equity for damages or for injunctive relief, or both. Irrigation uses shall be limited to not more than 1/3 acre of lawn and garden irrigation on Parcel B and 2/3 acre of lawn and garden irrigation on Parcel A. Unless otherwise agreed by each Owner, the Owner of Parcel B shall use no more than one-third (1/3) of the water legally allocated to the Well (i.e., 5.00 g.p.m.) and the Owner of Parcel A shall use no more than two-thirds (2/3) of the water legally allocated to the Well (i.e. 10.00 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 the amount actually available. In no event shall the Well be pumped at a rate exceeding fifteen (15) gallons per minute. Any household use of the Well water must provide for return flow through an individual disposal system of the non -evaporative type, returning the water to the watershed in which the Well is located. 5. Declarants shall be responsible for the initial cost of constructing the well system, pump house and any jointly used pipe lines. Following the initial construction, the actual and continuing costs of operation, maintenance, construction, 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 Owners shall be shared by the Owners in proportion to their share in the Well. This Declaration shall relate only to costs incurred after the date hereof Electrical charges for the operation of the Well shall be shared in proportion to the water allocated to each Owner. 6. Subject to the provisions in paragraph 4 above, any Owner who has been using water from this system and at any time elects not to share in costs, necessary repairs, maintenance, replacement and the like necessary to maintain the Well and deliver the subject water, shall not receive water from the system. At such time as said electing Owner chooses to resume use of water from the system said Owner may do so upon reimbursement to the other user the full cost of said Owner's share of such expenditures with legal interest retroactive to the expenditure date. 7. 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 owners 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 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. The Court, in its discretion, may award to the prevailing party Court costs and attorney's fees incurred. 2 1111111111111111111 111111111 111111111111111111111111111 670663 03/22/2005 10:48A B1672 P60 M ALSDORF 3 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO 8. Declarants hereby create and reserve permanent, non-exclusive easements across the portion of Parcel A designated as "Well Easement" and on the Wilks Subdivision Exemption Plat, recorded in the Garfield County Clerk and Recorder's Office with Reception No. and as attached hereto and incorporated herein as Exhibit A as necessary and sufficient for the benefit of the Owner of Parcels B, as a user of the Well, pump and common pipeline and treatment system and structures, and also create and reserve a non-exclusive easement for non -shared or individual pipelines conveying water to Parcel B over and across said "Well Easement". 9. Each Owner shall agree to not interfere at any time with the proper use by any other Owner of its interest in any water structure and shall indemnify and hold harmless all other Owners and users from any loss or damage or injury caused by the acts of said indemnifying owner. 10. The term hereof shall be perpetual. Notwithstanding the foregoing, however, in the event that a well permit is issued for Parcel B allowing household uses and the well as drilled produces two (2) or more g.p.m., this Declaration shall become null and void. 11. This Declaration and the convenants contained herein are intended to and shall run with the titles to those real properties described as Parcel A and Parcel B within the plat of the Wilks Subdivision Exemption, Garfield County, Colorado, and shall be binding upon and inure to the benefit of the Owners thereof, and their assignees or successors. 12. The laws of the State of Colorado shall govern the validity, effect and construction of this Declaration. 13. This Declaration may not be modified in any manner except by an instrument in writing signed by the Owners of each of the Parcels. IN WITNESS WHEREOF, this Declaration is executed this // day of 5. Edwa acob Wil 3 ari a loxia Wilks uaiii iWii nmii nii in iimi inmi iii nisi im ini 670663 03/22/2005 10:48A B1672 P61 M ALSDORF 4 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me on this / day of , 2005, by Edward Jacob Wilks and Maria Gloria Wilks. Witness my hand and official seal. My commission expires: S - 4 7 4 1111111111111111111 1111 1111111111111111 111 111111111 1111 670663 03/22/2005 10:48A 51672 P62 M ALSDORF 5 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO EXHIBIT A WELL EASEMENT A STRIP OF LAND 20 FEET IN WIDTH FOR THE USE OF ACCESS, REPAIR AND MAINTENANCE OF A WELL AND WATER LINE AS CONSTRUCTED AND IN PLACE SITUATE IN THE SW1/4SE1/4, SECTION 34, TOWNSHIP 5 SOUTH, RANGE 92 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO, SAID STRIP OF LAND LYING 10 FEET TO EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 34 AN ALUMINUM CAP LS N0. 10871 IN PLACE; THENCE N71°19146"E 808.06 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG SAID CENTERLINE THE FOLLOWING SEVEN (7) COURSES: 1) N28°06'14"E 26.62 FEET; 2) N78°04'26"E 182.17 FEET; 3) N48°30'15"E 53.99 FEET; 4) N27°19'37"E 139.78 FEET; 5) N66°32'32"E 66.56 FEET; 6) N83°04'25"E 59.39 FEET; 7) N15°04'12"E 82.33 FEET TO THE CENTER OF AN EXISTING WELL, THE POINT OF TERMINUS (WHENCE THE SOUTH y CORNER OF SAID SECTION 34 BEARS, S63°45'02"W 1340.60') TO INCLUDE A 20 FOOT RADIUS EASEMENT FROM THE CENTER OF SAID WELL FOR THE PURPOSE OF ACCESS, REPAIR AND MAINTENANCE.