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HomeMy WebLinkAboutEx 08c Well Sharing AgreementSU 'L E TO UPPLE ENT T• LI ITE I PACT EVIE F R ST • RAGE AN FABRICATI N FACILITY C NTRACT RS YARD ANA ENDED PLAT Parcel ID Numbers: 2393-274-01-004; 2393-274-01-003; and 2393-274-01-002 File Numbers LIPA 02-20-877; GAPA 02-20-8778; FPAA 03-20-8780 WELL SHARING AGREEMENT THIS WELL SHARING AGREEMENT, made this day of , 2020, by Baltic, LLC, a Colorado, a Colorado limited liability company ("Owner"). RECITALS: WHEREAS, Baltic, LLC owns three (3) parcels of real property depicted on the Second Amended Plat of Dixon Subdivision record in the real estate records of Garfield County as Reception No. and identified thereon as Lot A, Parcel C and Parcel D; and WHEREAS, each of Lot A and Parcel D may be developed with residential structures comprised of single family or duplex units; and WHEREAS, Parcel C may be developed with two (2) commercial buildings; and WHEREAS, Owner is the owner of a water well located on Parcel C as depicted on said Second Amended Plat known as the ToPoel Well, permit no. 45419-F-R; and WHEREAS, the Owner desires to set forth in writing this agreement concerning the use and maintenance of the ToPoel Well, and the rights and obligations of the three (3) parcel owners concerning the ToPoel Well and the use of water therefrom. NOW THEREFORE, for and in consideration of the mutual promises contained herein, owners set for the following: 1. Domestic Water Well. Domestic water service for the three (3) parcels depicted on the Second Amended Plat shall be provided by the ToPoel Well. The individual service line(s) for each property shall be owned exclusively by and be the sole responsibility of that owner In the event diversions from the ToPoel Well exceed historical diversions, the parties agree to undertake such steps as necessary to investigate the existence of any leaks and repair the same or determine the cause for such increased use. 2. Operation, Maintenance and Repairs to Domestic Water Well. The owner of the parcels shall cooperate with each other at all times to promote the proper function and use of the ToPoel 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. The owners shall cooperate on the future maintenance, operation, repair, replacement or improvement of the ToPoel Well, Water System and all common facilities. Each of the parcels shall install a meter to record water usage. The cost of all maintenance and repairs shall be allocated to the owners in propotion to the amount of water used by that owner's property. In the event the owners are unable to agree on any required maintenance, repair, replacement or improvement, any ownei shall be entitled to undertake the minimal maintenance, repair, replacement or improvement necessary and essential for proper WELL SHARING AGREEMENT Page 2 of 3 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 owners with a written statement of work performed and the other owners proportionate share of the cost of the 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 costs and expense shall be entitled to pursue any remedy available at law of in equity. 3. Well Failure. Should the ToPoel Well fail to operate, or be ordered by any governmental agency, officer or official to cease diversions, the owners shall each be individually responsible for providing water to each respective property. 4. Default. If an owner fails to discharge its obligations hereunder, any other owner may give written notice thereof to such defaulting ownei ("Defaulting Owner"). If the Defaulting Owner does not cure such failure within twenty (20) days after its receipt of such notice, then the nondefaulting owner shall have the right, but not the obligation, to cure such failure. If the nondefaulting owner elects to cure the Defaulting Owner's failure under this paragraph, then the Defaulting Owner shall, within ten (10) days after written demand by the nondefaulting owner (accompanied by invoices setting forth in reasonable detail the costs incurred by such owner), reimburse the nondefaulting owner for the reasonable costs and expenses incurred in connection therewith, together with interest thereon from the date of such demand until paid at the rate of 18% pei annum 5. Indemnity Each owner shall indemnify, defend, and hold harmless any other owner or successor in in interest from and against any and all claims, including loss of use of the ToPoel Well for any reason, damages, liens (including without limitation mechanics' and materialman's liens), losses, suits, actions, judgments, liabilities, costs and expenses (including, without limitation, seasonable attorneys' fees and costs and expenses of litigation) arising from or related to the operation, construction, production or quality of water from, maintenance, use or any other matters related to the ToPoel Well and its related facilities by an owner or its permittees except to the extent that such claims, liens losses, suits, actions judgments, liabilities, costs or expenses result from the negligence, recklessness or willful act of the indemnified owner or its permittees. 6. Covenants Running With the Land This Agreement and the provisions contained herein are intended to and shall run with the titles to those real pioperties described on the Second Amended Plat, 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 Agreement. This Agreement may not be modified in any manner expect by an instrument in writing signed by the owners of each of the Parcels. This Agreement shall be recorded in the Office of the Garfield County Clerk and Recorder. 7. Notice. Any notice or demand under this Agreement shall be in writing and shall be deemed given, received, and served (a) upon personal delivery, or (b) on the third business day after mailing, postage prepaid, be registered or certified mail, return receipt requested addressed WELL SHARING AGREEMENT Page 3 of 3 to such Parcel Owner's address as may appear in the Garfield County Assessor's records. 8. Entire Agreement This Agreement contains the entire agreement of the parties concerning the subject matter herein and supersedes all prior agreements, if any. 9. Governing Law. For purposes of this Agreement, the Parties agree that it they shall submit to the jurisdiction of the Garfield County Courts, Colorado. 10. Attorney Fees In the event that any party is reasonably required to utilize the services of any attorney to initiate litigation and enforce any provision hereof, then the party prevailing in such litigation, whether the party initiating litigation of otherwise, shall be entitled to its reasonable attorney fees, court costs and all costs of such litigation IN WITNESS WHEREOF, this Agreement is executed this day of , 2020. Baltic, LLC a Colorado limited liability company By: , as Manager State of Colorado ) ) ss. County of ) Subscribed, sworn to and acknowledged before me by , as Manager of Baltic, LLC on this Witness my hand and seal. My commission expires day of , 2020. Notary Public