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HomeMy WebLinkAbout1.14 Proposed Well Sharing DeclarationWELL SHARING DECLARATION This WELL SHARING DECLARATION ("Declaration") is made effective the day of , 2020 by Rifle Real Estate Solutions I, LLC, a Colorado limited liability company whose address is 711 E. Valley Road, Suite 101, Basalt, CO 81621 (the "Declarant"). Recitals: WHEREAS, Declarant owns certain real properties described as Lot 1A and Lot 1B, Big R Commercial Park Subdivision According to the minor subdivision plat thereof recorded , 2020 as Reception No. , County of Garfield, State of Colorado (collectively, the "Properties" and individually, "Lot 1A" or "Lot 1B"); WHEREAS, the Properties are served by a groundwater well known as the Big R Lot 1 Well (the "Well"), permitted as Colorado Division of Water Resources Well Permit No. 66789-F-R (the "Permit"). A copy of the Permit is attached hereto as Exhibit A; WHEREAS, the Well is constructed and located on Lot 1B; WHEREAS, the Well is permitted for commercial uses inside six (6) units, irrigation of not more than 18,000 square feet of lawns and gardens, and outside vehicle washing, and has a maximum permitted pumping rate of 25 gallons of water per minute (g.p.m.) and a maximum annual production of 3.35 acre-feet; and WHEREAS, the Declarant desires by this Declaration to provide terms and conditions for the shared use of the Well to serve Lot 1A and Lot 1B and to memorialize certain rights appurtenant to the Properties concerning the use, operation, maintenance, repair, and/or replacement of the Well and its appurtenant pipelines and equipment. NOW, THEREFORE, in furtherance of the foregoing and for the benefit of the Properties, Declarant hereby declares as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Shared Use of Well. Use of water from the Well shall be limited to those uses authorized by the Permit, allocated to each lot as follows: A. Lot 1A: Commercial uses inside two (2) units, irrigation of not more than 6,000 square feet of lawns and gardens, and outside vehicle washing, with maximum annual water use not to exceed 1.12 acre-feet. B. Lot 1B: Commercial uses inside four (4) units, irrigation of not more than 12,000 square feet of lawns and gardens, and outside vehicle washing, with maximum annual water use not to exceed 2.23 acre-feet. —1— In any event, the total Well production shall not exceed 25 g.p.m. and 3.35 acre-feet per year, in compliance with the terms of the Permit, with 1/3 allocated to Lot 1A and 2/3 allocated to Lot 1B. Should actual water production from the Well be less than 25 g.p.m., the actual Well production shall be allocated proportionally between the Properties: 1/3 to Lot 1A and 2/3 to Lot 1B. 3. Flow Meters. A totalizing flow meter shall be installed and maintained on the Well to measure the total flow of water from the Well and provide for the accounting necessary to enforce the provisions of the Permit. Lot 1A and Lot 1B may each separately install and maintain a totalizing flow meter on the water service pipeline serving each lot, by which the flow of water delivered to each lot can be measured; provided, however, that should Lot 1A install a separate pipeline connection from the well to serve Lot 1A, as provided in Section 8(C) below, then each of Lot 1A and Lot 1B shall be required to install and maintain an individual totalizing flow meter to measure the delivery of water to each lot. The costs for purchase and installation of such individual flow meters shall be borne solely by the owner of the lot served by such flow meter. 4. Operation, Maintenance, Repair and Replacement. From time to time, the Well, pump, flow meter, water service pipelines, and associated facilities may require maintenance, repair, and/or replacement. Additionally, there are operating costs (i.e., electricity) associated with the Well. Costs for operation, maintenance, repair, and replacement ("OMR&R") of the Well and appurtenant facilities shall be allocated as follows: A. The cost of OMR&R for the Well, pump, shared flow meter, and appurtenant facilities that serve both of the Properties, including without limitation the electricity needed to operate the Well, as well as the cost of OMR&R for water service pipelines that serve both of the Properties, shall be allocated between the Properties as follows: 1/3 to Lot 1A and 2/3 to Lot 1B. B. The responsibility for and cost of construction, installation, or OMR&R for water service pipelines, individual flow meters, or other facilities that serve only one lot shall be allocated to that lot only. C. Any portion of an easement that is disturbed due to OMR&R shall be promptly restored to grade and revegetated or resurfaced to a gravel soft surface, as applicable. Responsibility for and costs of such easement restoration and revegetation/resurface work shall be allocated to or between the Properties according to how the OMR&R causing such disturbance was allocated. 5. Storage. Should a lot owner desire to construct a water storage tank for use of water from the Well, the water storage tank shall be constructed on such owner's lot only, at its own cost and expense, to store such lot's portion of the Well yield only. 6. Authority to Perform Repairs, Maintenance and Improvements. If the owner of Lot 1 A or Lot 1B reasonably believes that the Well, pump, or appurtenant facilities require maintenance, repair, or replacement to allow the Well reliably to produce adequate water in accordance with the —2— Permit, then such owner shall provide the other lot owner fifteen (15) days' prior written notice of such fact and the estimated cost of the necessary repairs. Following such notice, the owner providing such notice may have the required work performed by a licensed well or pump contractor (as applicable) and shall be entitled to reimbursement from the other lot owner for its proportionate share of the actual costs and expenses incurred for such work, in accordance with Section 4(A) above. In the event that emergency repairs or replacement are required, the owner initiating the emergency repairs or replacement will provide the other lot owner any reasonable notice possible prior to performing said emergency repairs or replacement and shall be entitled to reimbursement from the other lot owner for its proportionate share of the actual costs and expenses incurred for such emergency repairs or replacement, in accordance with Section 4(A) above. 7. Payment Terms; Right to Lien. Payment due to any party subject to this Declaration shall be due and payable, in full, within thirty (30) days of notice thereof, which notice shall include a copy of the actual invoice(s) on which the notice for payment is based ("Payment Notice"). Thereafter, any outstanding balance shall accrue interest at the rate of 18% per annum (1.5% per month) until paid. If full payment is not received within sixty (60) days of delivery of the Payment Notice, the lot owner to whom said payment is owned may file a lien for the amount due against the lot owned by the party in arrears. Said lien may be foreclosed in any manner provided for by law. 8. Well and Service Line Easements. A. Declarant hereby grants a nonexclusive, perpetual easement on Lot 1B, for the benefit of Lot 1A, for the purpose of access to and operation, maintenance, repair, and replacement of the Well, pump, and appurtenant facilities, the scope of which shall be limited to a circle ten (10) feet in radius surrounding the as -built location of the existing Well (the "Well Easement"). B. Declarant hereby grants a nonexclusive easement on Lot 1B, for the benefit of Lot 1A, for the purpose of access to and operation, maintenance, repair, and replacement of the water service pipelines serving both Properties or serving Lot 1A only, which easement shall be fifteen feet (15') in width, centered on the existing, as -built locations of such water pipelines on Lot 1B (the "Existing Pipelines Easement"). C. The Properties are benefitted by a private Access and Utility Easement across the Properties, as shown on the minor subdivision plat recorded as Reception No. . In lieu of using the existing, shared water pipelines, the owner of Lot 1A may construct and install, at its sole cost and expense, a separate water service pipeline connection to the Well, through and along the private Access and Utility Easement located on Lot 1B. Should Lot 1A install such separate water pipeline connection, then, upon completion thereof, Lot 1A shall disconnect from the shared water pipelines, and the Existing Pipelines Easement shall automatically terminate and be of no further force or effect. 9. Agreement to Indemnify. The owner of Lot 1 A hereby agrees to indemnify, defend, and hold harmless the owner of Lot 1B from and against any and all losses, claims, demands, —3— liabilities, injuries, damages, and expenses, including without limitation reasonable attorney fees and costs, that the owner of Lot1B may suffer or incur as a result of the use, occupancy, or possession of the Well Easement or the Existing Pipelines Easement by the owner of Lot 1A and its agents, employees, or contractors. 10. Alternate Water Supply. Should the owner of Lot 1A develop or obtain a separate well or water supply to serve Lot 1A, then Lot 1A shall no longer be entitled to receive water from the Well, and this Declaration and the easements granted hereunder shall automatically terminate and be of no further force and effect. 11. Covenant Running With the Land. All of the provisions of this Declaration shall be deemed a covenant running with the Properties. A lot owner's rights and obligations hereunder may not be assigned or conveyed separately from his/her or its lot, and the conveyance of Lot 1A or Lot 1B shall automatically convey as well such lot's rights and obligations under this Declaration. This Declaration and any amendments or supplements thereto shall be recorded in the Office of the Garfield County Clerk and Recorder. 12. Waiver. The failure of any owner of Lot 1A or Lot 1B to insist upon strict performance of any of the provisions contained in this Declaration shall not be deemed a waiver of any rights or remedies that such party may have and shall not be deemed a waiver of any subsequent breach or default in the performance of any of the obligations contained herein for the same or any other party. 13. Attorney Fees. In the event an owner of Lot 1A or Lot 1B initiates or defends any legal action or proceeding to enforce or interpret any of the terms, conditions, or provisions of this Declaration, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorney fees and costs incurred in such action or proceeding from the non -prevailing party. 14. Estoppel Certificate. Each lot owner, so long as it has an interest in a lot encumbered by this Declaration, agrees within fifteen (15) days of receipt of a written request from the other lot owner to certify in writing for a respective purchaser or lien holder: (i) that this Declaration is in full force and effect, (ii) that it has not been amended except as set forth in such certificate, and (iii) that the other lot owner is not in default of any of the terms, covenants, conditions, or provisions contained in this Declaration; provided, however, that if the Declaration has terminated as provided in Section 10, or if a default does exist, the owner shall so specify, including the nature of such default. 15. Notices. Any notice required or permitted to be given under this Declaration must be in writing and will be deemed given upon personal delivery; three days after the deposit thereof in the United States first class mail, postage prepaid; or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the owner of Lot 1A or Lot 1B, as applicable, at the mailing address of record with the Garfield County Assessor. Any lot owner —4— may change its address for notices by giving notice to the other lot owner in accordance with this paragraph. 16. Headings. Section or paragraph headings contained within this Declaration are inserted for convenience only and shall not be construed to vary or add to the meaning of the Declaration or of any section or paragraph. 17. Severability. If any term, condition, or provision of this Declaration is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Declaration shall remain in full force and effect. 18. Modification. No variations or modifications of, or amendments to, the terms of this Declaration shall be binding upon the Properties unless reduced to writing, signed by the then - owners of Lot 1A and Lot 1B, and recorded in the real property records for Garfield County, Colorado. 19. Governing Law. The laws of the State of Colorado shall govern the validity, performance, and enforcement of this Declaration. Should any lot owner institute legal suit or action for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Garfield County, Colorado. IN WITNESS WHEREOF, this Well Sharing Declaration has been executed effective as of the date first above written. By: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Declarant: Rifle Real Estate Solutions I, LLC, a Colorado limited liability company Ian Bays, Manager The foregoing instrument was acknowledged before me this day of , 2020 by Ian Bays as Manager of Rifle Real Estate Solutions I, LLC, a Colorado limited liability company. My commission expires . Witness my hand and official seal. [SEAL] —5— Notary Public EXHIBIT A (Well Permit)