The URL can be used to link to this page

Home My WebLink About10.01 Amended Well Sharing DeclarationDECLARATION OF WATER WELL USE AND MAINTENANCE THIS DECLARATION OF WATER WELL USE AND MAINTENANCE ("Declaration") is made this day of , 20, by WILLIAM W. WILDE and JAYNE M. WILDE, whose address is 363 County Road 251, Rifle, Colorado 81650 ("Declarants"). WHEREAS, Declarants are the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision situate in the Southwest %, Section 19, Township 5 South, Range 92 West of the 6th P.M., Garfield County, Colorado as more particularly described within the plat thereof, heretofore recorded in the records of the Clerk and Recorder of Garfield County, Colorado, on , 20_, in Book at Page as Reception Number ; and WHEREAS, the owners of Parcel B Mangurian Exemption, Garfield County, Colorado, on behalf of themselves and their successors and assigns, have by quit claim deed filed for record with the clerk and recorder of Garfield County on , in book at page as Reception No. conveyed to Declarants all rights and interest in and to the well permitted by the office of the state engineer under well permit no. 200938 / 200938-A and all rights and interest in and to that certain Water Well Community Sharing and Maintenance Agreement filed for record with the clerk and recorder of Garfield County on April 4, 1997, in book 1014 at page 550 as Reception No. 506654; and WHEREAS, the well formerly permitted by the office of the state engineer under well permit no. 200938 / 200938-A is no longer shared between the owners of Parcel B and Parcel C, Mangurian Exemption, Garfield County, Colorado and has been re -permitted for providing domestic water and other permitted uses as Well Permit No. 80938-F, ("the Well"). The Well is located within Amended Parcel C, Wilde Minor Subdivision, and is to be shared between Amended Parcel C and Parcel D, Wilde Minor Subdivision, Garfield County, Colorado; and WHEREAS this Declaration is intended to supersede and replace said Water Well Community Sharing and Maintenance Agreement filed for record with the clerk and recorder of Garfield County on April 4, 1997, in book 1014 at page 550 as Reception No. 506654; and WHEREAS, the Well and casing and pump and control equipment shall be utilized by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision as a lawful water right; and WHEREAS, the Well and system will require continuing maintenance and operation, the costs of which must be borne by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision and users thereof; and WHEREAS, the well permit contemplates perpetual, though not constant, use and operation of the Well, pump and the appurtenant structures; and WHEREAS, the Well, Permit No. 80938-F, is augmented with a West Divide Water Conservancy District Contract; and WHEREAS, by this Declaration, it is the intent of the Declarants to establish a regime governing the joint use of the Well, Permit No. 80938-F, by future owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision; and NOW THEREFORE, Declarants make this Declaration for the purpose of clarifying the respective rights and duties and establishing procedures for jointly operating the Well and delivering water to Amended Parcel C and Parcel D, Wilde Minor Subdivision, and 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 Well and its pump and other structures by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision, as follows: 1. The respective owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision shall be deemed to own an undivided one-half (%) share of the subject Well Permit No. 80938-F, the Well, pump, power source for the 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 in the operation of the Well. 2. No owner of Amended Parcel C or Parcel D, Wilde Minor Subdivision shall be 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 Parcel which may utilize any portion of the water flowing from the 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 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 respective owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision 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 for which the non - defaulting party may seek remedy at law or equity for damages or for injunctive relief, or both. Irrigation uses shall be limited to not more than 12,500 square feet of lawn and garden on each parcel. Unless otherwise agreed by both owners, no owner shall use more than one-half (1/2) of the water legally allocated to the Well. 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. 4. 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 parties shall be shared by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision in equal (50/50) shares. All charges imposed by the West Divide Water Conservancy District Contract, including the privilege of service and annual cost of the augmentation agreement shall be shared by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision in equal (50/50) shares. Electrical charges for the operation of the Well shall also be shared equally, or in the event meters are installed, in proportion to the water utilized by each party. In the event the electric service to the Well is not separately metered, the cost of electric service shall be estimated, based upon the power demand the well service adds to the service of the party paying a public utility for the electric service. Electrical charges for the operation of the Well will not be charged to the owner of Parcel D until such party actually makes a physical connection to the Well and begins using water from same. However, all other costs of operation, maintenance, construction, extension, upgrading, cleaning, repairing and all other work required on shared components of this water system, and all charges imposed by the West Divide Water Conservancy District shall be split in equal (50/50) shares regardless of whether Parcel D makes a physical connection to the Well. 5. Subject to the provisions in paragraph 4 above, any party who 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 party chooses to resume use of water from the system said party may do so upon reimbursement to the other users the full cost of said party's share of such expenditures with legal interest retroactive to the expenditure date. 6. The owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision shall cooperate in the 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, 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 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. Declarants hereby create and reserve a permanent, non-exclusive Well and Waterline Easement across the portion of Amended Parcel C, Wilde Minor Subdivision designated as "Well and Waterline Easement" on the final plat of the Wilde Minor Subdivision heretofore recorded in the records of the Clerk and Recorder of Garfield County, Colorado, on , 20_, in Book at Page as Reception Number , as depicted and dimensioned on said final plat, for the purpose of servicing the Well; installing, maintaining, repairing and/or replacing the water service line to the Well; and conveying water from the Well over and across said "Well and Waterline Easement" to Parcel D, Wilde Minor Subdivision. 8. Nothing in this Declaration shall by itself be construed as a transfer of any water right or appropriation of waters as heretofore acquired or owned by any party. The owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision shall not interfere at any time with the proper use the owner of the other parcel of its interest in any water structure and shall indemnify and hold harmless all other owners and users of the Well from any such loss or damage or injury caused by the acts of said indemnifying party. 9. The term hereof shall be perpetual. 10. The covenants contained in this Declaration are intended to and shall run with and shall encumber the titles to Amended Parcel C and Parcel D, Wilde Minor Subdivision, Garfield County, Colorado as more particularly described within the plat thereof and shall be binding on the owners thereof, their successors and assigns. 11. The laws of the State of Colorado shall govern the validity, effect and construction of this Declaration. 12. This Declaration may not be modified in any manner except by an instrument in writing signed by the owners of Amended Parcel C and Parcel D, Wilde Minor Subdivision, Garfield County, Colorado. IN WITNESS WHEREOF, this Declaration is executed this day of , 20_ WILLIAM W. WILDE Date JAYNE M. WILDE Date ACKNOWLEDGMENTS STATE OF COLORADO § § COUNTY OF GARFIELD § The foregoing instrument is acknowledged before me this W. WILDE and JAYNE M. WILDE. Witness my hand and official seal. My commission expires: day of , 2017, by WILLIAM Notary Public