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HomeMy WebLinkAbout03.02 Declaration of Water Well Use and Maintenance ObligationsDECLARATION OF WATER WELL USE AND MAINTENANCE OBLIGATIONS THIS DECLARATION is made this day of 2017, by Kip Costanzo, LLC ("Declarant") whose address is 28803 Hwy 6&24, Rifle, Colorado 81650. WHEREAS, Declarant is the owner of two tracts of land known as Lot 1 and Lot 2, Costanzo Minor Subdivision, according to the Final Plat recorded contemporaneously herewith in the Office of the Clerk and Recorder, County of Garfield, State of Colorado (collectively the "Lots"), WHEREAS, Declarant is also the owner of a water well (the "Well") located on Lot 2 and permitted under Colorado Division of Water Resources Well Permit No. 76013-F for ordinary purposes inside commercial buildings, irrigation of not more than 9,000 square feet of gardens and lawns, and the watering of two domestic animals and a well system to deliver the water to both Lots including pump house and pipelines (the "Water System"). WHEREAS, Declarant is also the owner of West Divide Water Conservancy District Contract No. 120309KC(a) for 1 acre foot of water (the "West Divide Contract") which augments the Well. WHEREAS, by this Declaration, it is the intent of Declarant to establish a regime governing the joint use of the Well and Water System by the owners of the Lots (collectively the "Owners"). NOW THEREFORE, Declarant sets forth the regime governing joint use of the Well and Water System by the Owners of the Lots as follows: 1. The Owner of Lot 1 shall be deemed to own an undivided one-half (1/2) share of the Well permit, Well, West Divide Contract, and the Water System including the related pump, fittings at the Well head, meters (whether existing now or to be installed at a later time), pump house, cistern, foot valves, and any pipes or pipelines and any other structures which are jointly used. 2. The Owner of Lot 2 shall be deemed to own an undivided one-half (1/2) share of the Well permit, Well, West Divide Contract, and the Water System including the related pump, fittings at the Well head, meters (whether existing now or to be installed at a later time), pump house, cistern, 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 the other Lot which may utilize a portion of the water flowing from this Well and its structures. This Declaration does not 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 or to obligate either Owner to pay any costs associated with non -shared structures. 4. The Owners shall cooperate with each other at all tines in all matters necessary to promote the proper functioning and use of the Well and Water System to provide an optimum water supply on demand at all times possible based upon the natural availability of water. The Owners shall not waste water and shall endeavor to use no more than their respective share of the available water. At this time, no individual water meters are installed. If at any time after the date of this Declaration, either 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. 5. The Owner of Lot 1 shall use no more than one-half (1/2) of the water legally allocated to the Well (i.e., g.p.m.) and the Owner of Lot 2 shall use no more than one- half (1/2) of the water legally allocated to the Well (i.e. g.p.m.). Irrigation uses shall be limited to not more than 4,500 square feet of lawn and garden irrigation on Lot 1 and 4,500 square feet of lawn and garden irrigation on Lot 2. In the event the water physically available from the Well is less than the legally available amount, each Owner shall proportionately reduce the consumption of the water to the amount actually available. In no event shall the Well be pumped at a rate exceeding fifteen (15) gallons per minute. Any sanitation use of the Well water must provide for return flow through an onsite waste treatment system of the non -evaporative type, returning the water to the watershed in which the Well is located. 6. Declarant has previously constructed the Well and Water System and has obtained the West Divide Contract. The actual and continuing costs of operation, maintenance, upgrading, cleaning, repairing and all other work required on shared components of the Well and Water System, including electrical charges, to cause the water at the Well to become and remain available to deliver water to the Owners and the annual fee for the West Divide Contract shall be shared by the Owners in proportion to their share of ownership in the Well. This Declaration shall relate only to costs incurred after the date hereof. 7. The Owners agree to cooperate on the future maintenance, operation, repair, replacement or improvement of the Well, Water System and all common facilities. In the event the Owners are unable to agree on any required maintenance, repair, replacement or improvement, either 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 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 8. Notwithstanding the allocation of the ownership of the West Divide Contract set forth in Paragraphs 1 and 2, the Owner of Lot 1 shall be considered to be the contact for West Divide Water Conservancy District correspondence and billing. 9. Declarant hereby creates and dedicates to the Owner of Lot 2 a permanent, non-exclusive easement across the portion of Lot 1 for a Well and Water System Easement which is identified as "30' Utility Easement" on the Final Plat of Costanzo Minor Subdivision, recorded contemporaneously herewith in the Garfield County Clerk and Recorder's Office, for the Owner of Lot 2 to receive water from the Well. 10. Each Owner shall not interfere at any time with the proper use by the other Owner of his or her interest in any water structure and shall indemnify and hold harmless the other Owner and users from any loss or damage or injury caused by the acts of the indemnifying owner. 11. The term hereof shall be perpetual. The ownership of the Well and Water System and the easement granted herein is appurtenant to Lot 1 and Lot 2 of the Costanzo Minor Subdivision and such easement may not be transferred, assigned or conveyed apart or separately from the respective Lot. This Declaration and the provisions contained herein are intended to and shall run with the titles to those real properties described as Lot 1 and Lot 2, Costanzo Minor Subdivision, and shall be binding upon and inure to the benefit of the Owners thereof, and their successors and assigns. The laws of the State of Colorado shall govern the validity, effect and construction of this Declaration. 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 day of , 2017. Kip D. Costanzo, Kip Costanzo, LLC. STATE OF COLORADO ) ss. COUNTY OF GARFIELD The foregoing instrument was acknowledged before me on this day of , 2017, by Kip D. Costanzo. Witness my hand and official seal. My commission expires: 3 Notary Public