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HomeMy WebLinkAbout1.01 Declaration of Covenants, Well Sharing & Irrigation Water Use Agreement• • Do ° s C�a DECLARATION OF COVENANTS, WELL SHARING AND IRRIGATION WATER USE AGREEMENT THIS DECLARATION OF COVENANTS, WELL SHARING AND IRRIGATION WATER USE AGREEMENT is made this day of , 2000, by Gaye Leo (hereinafter collectively referred to as "Declarant") owner of the property described below, which property is located in Garfield County, Colorado: WITNESSETH: WHEREAS, Declarant is the sole owner of certain real property located in Garfield County, Colorado, described as the property in the West %2 of the Southwest 1/4 of Section 20 that is located northerly of the northwesterly boundary line of the right of way for County Road 320 in, Township 6 South, Range 93 West of the 6th P.M. (hereinafter referred to as the "Property"); and WHEREAS, a well known as "Leo Well " is located upon the Property at a point approximately 1400 feet from the South Section Line and 4500 feet from the East Section Line of said Section 20; and WHEREAS, Declarant is the sole owner of the Leo Well; and WHEREAS, the Colorado Division of Water Resources has issued Well Permit Number 221943 for the Leo Well, which permit allows use of water from the well for fire protection, ordinary household purposes inside three (3) single family dwellings, the irrigation of not more than one acre of homes, gardens and lawns, and the watering of domestic animals; and WHEREAS, Declarant owns 0.52 c.f.s. of water decreed to the Taugenbaugh Ditch (the "Irrigation Water Rights") which has been used to irrigate the property and Declarant wishes to ensure that the three (3) lots each have access to a portion of the Irrigation Water Rights in the manner set forth below; and WHEREAS, Declarant intends to subdivide the Property into three lots (to be known as Lots 1, 2 and 3—the Leo Well is on Lot 1), using the Leo Well as the source of potable water for domestic use on such lots and that all three lots will share some Irrigation Water Rights, in the proportions and amounts set forth below; NOW, THEREFORE, Declarant hereby declares that the Well, Irrigation Water Rights and the Property shall be held, sold and conveyed subject to the following restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of the Property, and which shall run with the Well, the Irrigation Water Rights and the Property and be binding upon all parties having any right, title or interest in the Well, the Irrigation Water Rights and the Property, or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof. Leo Subdivision Declaration of Covenants Page 2 • • 1. Potable Water Supply. The potable water supply for each of the three lots within the Property shall be the Well (Leo Well ), as operated pursuant to Well Permit No. 221943 issued by the Colorado Division of Water Resources. All lot owners shall be jointly responsible for meeting all obligations set forth in the Well Permit. 2. Water System Easements. All owners of lots within the Property shall have an easement to access the Leo Well and all pumphouses, storage tanks, pipelines, and other workings associated with the delivery of potable water to each lot (collectively referred to as the "Potable Water System") located anywhere within the Property, for reasonable operation and maintenance purposes. Such easement includes a right to free and unrestricted access for such purposes and shall be twenty (20) feet in width surrounding all parts of the Potable Water System. In the event that any gates, well houses, or other parts of the Potable Water System are locked for security purposes, all lot owners shall immediately be provided with a key and shall not otherwise be restricted from accessing the Potable Water System. The reciprocal easements granted herein shall be for the benefit of all lots within the Property. The location of all parts of the Potable Water System shall be determined by cooperation of all lot owners and in a manner which interferes the least with existing structures including but not limited to houses, outbuildings, and roads. 3. Ownership. All lot owners shall own an undivided one-third (1/3) interest in the Leo Well and the Well Permit, pump(s), and any appurtenant parts of the Potable Water System used in common by all lots. Each lot owner's interest in the Leo Well and Water System shall be appurtenant to their lot and may not be transferred apart from the lot. All lot owners shall be mutually responsible for the Well and to operate, maintain, repair, replace and improve the Leo Well, pumps and any other appurtenant facilities for their joint benefit. The Well Permit shall be put in the name of the owner(s) of the lot upon which the Well is located (Lot 1), as such ownership may change from time to time, and such owner shall be responsible for subsequent assignments and amendments to reflect current ownership. The owner of the lot upon which the Leo Well is located shall be designated as the lot owner to receive all mail and documentation relating to the Leo Well and Water System. Such lot owner shall promptly provide copies of all such mail and documentation to other lot owners, or make such information available for review at the convenience of other lot owners. Interests in the Leo Well shall not be conveyed separate and apart from the underlying interests in Lots 1, 2 and 3 within the subdivision. 4. Irrigation and Stockwater Use of the Leo Well. The well shall not be used for outdoor irrigation purposes, including lawn and garden irrigation, by any lot owner at any time. Stockwatering uses are allowable however such use shall be accomplished in a conservationist manner (e.g. water shall not be allowed to run continuously). If any stock tanks are used, such tanks shall be filled no more than one (1) time per day and shall be heated if used in the wintertime. During the irrigation season, and when water is available in priority, all lot owners shall use the Irrigation Water Rights for stockwatering purposes. However, the Leo Well may be used for supplemental stockwatering, when ditch water is not available. 5. Emergency Repair of Water System. In the event that the lot owners are unable to agree upon any maintenance, repair replacement or improvement necessary to continue LEO -Declaration of Covenants 2 Leo Subdivision Declaration of Covenants Page 3 • • potable or irrigation water service, any of the lot owners shall be entitled to undertake any maintenance, repair, replacement or improvement necessary and essential to allow continued water service. In the event that any lot owner(s) decide to undertake any such work absent the consent of any other lot owner(s), he or she shall notify the other lot owners in writing. The lot owner(s) undertaking the work shall, upon completion, provide the other owner(s) with a written statement of the work performed and an allocation of each lot owner's share of the costs. In the event that emergency repairs are required, before undertaking any such work each lot owner will attempt to contact the other lot owner(s) by phone prior to incurring any expenses for such repairs. Bills for emergency repairs shall be allocated among the three lot owners in the manner set forth below in Paragraphs 9 and 10 for payment of joint expenses associated with the Potable Water System and the Irrigation Water Rights associated with the Property. 6. Use. In-house use of water from the Leo Well shall take precedence over stockwater use. In the event of a shortage, all lot owners shall cooperate and shall reduce their uses accordingly to conserve water. No lot owner shall be entitled to waste water, and each owner shall exercise prudence and conservation in the use of water in order to allow for the efficient and beneficial use of the Leo Well. 7. Storage. At the time that a residence is constructed by each lot owner, the owner(s) of such shall install a water storage tank not less than 250 gallons in size at such lot owner(s)' sole cost and expense. Such storage tank shall also be buried at such lot owners' expense where it can intercept all water for the lot from the well and be plumbed into the residence to ensure that there is an adequate supply of water for the residence in the event that the instantaneous pumping rate of the well is inadequate to meet demand. 8. No Other Wells. No other exempt wells may be drilled upon any lot within the Property unless the drilling of any such well does not jeopardize the status of the Well Permit for the Well which is exempt from administration under the prior appropriation system pursuant to Colo. Rev. Stat. Section 37-92-602(3)(b)(II)(A). No other wells may be drilled within the property absent the unanimous written consent of all lot owner(s) and a valid well permit issued by the Colorado Division of Water Resources. In the event that any lot owner(s) discontinue use of the Leo Well with the consent of the other lot owner(s) pursuant to this Paragraph 8, such discontinuing lot owner(s) interest in the Leo Well shall revert to the owner of Lot 1, upon which the Leo Well is located. 9. Operation and Maintenance Expenses. The owner(s) of each lot shall be entitled to use an undivided one-third (1/3) of the water produced by the Leo Well. The withdrawal of water from the Leo Well shall be for domestic and limited stockwatering purposes permitted by the State of Colorado. The owner(s) of each lot served by the Leo Well shall pay one-third (1/3) of the costs of maintenance, operation, electricity, repair, and replacement of the Leo Well, pump(s) and appurtenant facilities, and the costs of common water lines or other common water facilities. To the extent practicable, the use of electricity shall be monitored via an "hour meter" to be attached to the electrical line to the well pump. Such meter will allow records to be kept of electrical consumption each year. If any lot is not hooked onto the Leo Well, the owner(s) of such lot shall not be obligated to contribute toward operation and LEO -Declaration of Covenants 3 Leo Subdivision Declaration of Covenants Page 4 maintenance expenses. If any lot is hooked on but has not yet commenced service, no electricity costs shall be assessed against the owner(s) of such lot. In addition, the owner(s) of each individual lot shall be exclusively responsible for the costs of installation, operation, repair or replacement of any facilities used solely by that lot, including individual service lines and any individual storage tanks. Otherwise, the lot owners shall cooperate to operate and maintain the Potable Water System and to pay any associated costs for maintenance, operation, repair, replacement, or improvement of common facilities. Non-essential maintenance, operation, repair, replacement or improvement of any part of the Water System shall only be performed after consent of all lot owners. The owner(s) of each of the three lots shall meet once each year in June to appoint one owner as the manager of an unincorporated informal homeowners association. The owner(s) of each lot shall contribute $100 per lot (total of $300.00 each year) into an account to be held by the manager of the informal association. These contributions shall be used first to pay monthly electrical expenses associated with operation of the well pump. Any surplus funds each year shall be held over in the account and designated for use in the event that the pump needs repair or replacement. If these funds are fully used in any given year, the owner(s) of each lot shall make additional proportional contributions (1/3, 1/3, 1/3) as may be necessary to cover expenses for that year. All lot owners shall be entitled to an accounting of use of community funds upon reasonable request to the manager, who shall keep records of contributions and expenses for operation and maintenance of the Potable Water System. 10. Irrigation Water Rights. At the current time the Declarant believes that she owns 0.52 c.f.s. of the Taugenbaugh Ditch (water rights for which were decreed in Civil Action Nos. 89, 934, 955 (Garfield County District Court) and in Case No. W-2180 (District Court in and for Water Division No. 5). These water rights divert from Beaver Creek. No title opinion has been rendered confirming this amount, and Declarant makes no representations or warranties that she owns any certain amount of this water or any certain priority. Declarant intends that Lot 1 shall retain ownership and use of ninety percent (90%) of the irrigation water associated with the property (90% of 0.52 c.f.s. is .468 c.f.s.), and that this water may be used to irrigate as much of Lot 1 as is practicable. Declarant further intends that Lot Nos. 2 and 3 shall each have the right to five percent (5%) of the Irrigation Water Rights owned by Declarant (5% of 0.52 c.f.s. is 0.26 c.f.s.) and that up to 3,000 square feet of lawns and gardens on Lot 2 and another 3,000 square feet of lawns and gardens on Lot 3 with these interests. These Irrigation Water Rights shall not be conveyed in and apart from the land and the Lot owners shall be required to use the water for irrigation purposes to keep the lawn space for the benefit of all of the lots. Lots 2 and 3 shall combine and share the use of their 5% ownership of the water rights (.052 c.f.s.) by rotating the use of the total 10% using the total on each lot for 2 days at a time to allow for a more efficient irrigation of Lots 2, and 3. The owner(s) of each lot shall be responsible for a pro rata share of all expenses associated with the Irrigation Water Rights as those expenses may be incurred for the operation maintenance and repair of the main ditch and its workings or that may be incurred for that portion of the ditch or the laterals which serve these three (3) lots. No owner shall be liable for expenses for any portion of the ditch or lateral that it does not benefit from. The division of expenses shall be as follows: Lot 1-90%; Lot 2-5%; Lot 3-5%. 11. Easement for Irrigation Ditch (Pipeline). Irrigation water is delivered to all three lots via a buried lateral pipeline along the southern edge of the lots. All owners of lots LEO -Declaration of Covenants 4 Leo Subdivision Declaration of Covenants Page 5 • • within the Property shall have an easement to the Tagenbaugh Ditch itself and this lateral pipeline (a/k/a the ditch), including headgates, measuring devises, and other workings on the main pipeline along the southern edge of the Property (collectively referred to as the "Irrigation System"), for reasonable operation and maintenance and repair purposes. Such easement includes a right to free and unrestricted access for such purposes and shall be twenty (20) feet in width extending twenty (20) feet north of the southern edge of the three (3) lots within the Property. In the event that any parts of the Irrigation System are locked for security purposes, all lot owners shall immediately be provided with a key and shall not otherwise be restricted from accessing the Irrigation System. The reciprocal easements granted herein shall be for the benefit of all lots within the Property. The location of all parts of the Irrigation System shall be determined by cooperation of all lot owners and in a manner which allows for the gravity flow of water to all of the lots. Structures including but not limited to houses, outbuildings, and driveways shall be placed in a location on each lot that does not interfere with the use of the ditch and accounts for any drainage patterns that may exist. Although each lot may receive water from the main distribution pipeline viaseparate lateral pipelines which extend onto each lot, the easements and maintenance obligations provided for in this paragraph and in the following Paragraph 11 shall not extend to the separate lateral pipelines which extend onto each lot, which lines shall remain under the sole control and responsibility of the owner(s) of each lot served by each such separate lateral line. 12. Collection of Joint Expenses. The owner(s) of each lot shall pay his or her share of common expenses for the Leo Well, electricity, irrigation ditch maintenance and repair expenses, or other common expenses within fifteen (15) days from the time at which a written statement of expenses is presented for payment by the manager of the informal homeowners association or the owner(s) of any other lot. In the event that the owner(s) of any lot fails to pay his or her share of common expenses within thirty (30) days of presentment of a statement, interest on the unpaid amount shall accrue at the rate of eighteen percent (18%) per annum, beginning thirty (30) days after presentment. In the event that any lot owner fails to pay any amount due, including any accrued interest, within six months from the date of presentment for payment, water service to the delinquent lot may be discontinued. However, notice shall first be given to the non-compliant lot owner by certified mail sent no less than thirty (30) days prior to termination of service to the last known address of the delinquent owner. Any lot owner(s) that have paid the delinquent owner's share of costs and expenses shall be entitled to pursue any remedy available at law or in equity for a breach of this Agreement. Reasonable attorneys' fees and costs incurred by the owner(s) of any lot(s) in the process of collecting any amount due from any other lot owner(s) pursuant to the terms of this Declaration shall be paid by the delinquent lot owner(s). 13. Prohibition of Manufactured Housing or Mobile homes; Construction Timeframe for New Homes. Manufactured housing and/or mobile homes are prohibited on any part of any lot within the Property, except that temporary housing or office space may be used during the period of construction of a permanent residence on such lot, which construction period shall not exceed two (2) years from the date of purchase of the lot. LEO -Declaration of Covenants 5 Leo Subdivision Declaration of Covenants Page 6 14. Maintenance. Each lot owner shall keep his or her lot clear and free of trash, junk, litter and debris, and shall keep the improvements thereon ingood repair. 15. Shared Driveway. As shown on the map\for the subdibr�ion t onte�iiplated herein, Lots 2 and 3 will be shared by a joint driew ay access from County Road 320, which access will lie t/2 on Lot 2 and '/2 on Lot 3. A reciprocal easement shall exist for shared portions of the driveway access and the owner(s) of Lots 2 and 3 shall communicate with each other and cooperate with regard to decision-making regarding insofar as construction, operation, maintenance, repair and replacement of shared portions of the driveway, and shall each contribute fifty percent (50%) of associated expenses. The access from the County Road shall be constructed in a manner which complies with all applicable Garfield County standards. N 16. Pets. Only one dog shall be allowed to be kept on each lot. 17. Covenants to Run. These covenants and restrictions shall run with all lots within the Property and shall bind the owners thereof, their successors and assigns. 18. Enforcement. This document may be enforced by any lot owner(s) or any governmental agency having jurisdiction over the matter, by an action for damages or for injunctive relief to restrain or mandate any action required by this document. The interpretation of this document shall be governed by Colorado law. Unless the parties to any dispute arising with regard to this document agree to an alternate form of dispute resolution, venue for any dispute arising with regard to this document shall be in the courts of Garfield County, Colorado. The prevailing party in any legal action to enforce this document shall be entitled to reasonable attorneys' fees and costs. 19. Amendments. This document shall be recorded in the real estate records of Garfield County, Colorado. This document may only be amended by the unanimous written consent of all lot owners within the Property. No amendment shall be effective until an instrument setting forth such amendment, signed by all lot owners, is recorded in the real estate records of Garfield County, Colorado. 20. Severability. Should any provision of this document be declared invalid or unenforceable by a Court of competent jurisdiction, such decision shall not affect that validity of any other provisions, which shall remain in full force and effect. DATED: , 2000. DECLARANT: Gaye Leo Acknowledgement on following page: LEO -Declaration of Covenants 6 Leo Subdivision Declaration of Covenants Page 7 STATE OF COLORADO } } ss. COUNTY OF GARFIELD } The foregoing Declaration was subscribed and sworn to before me this day of , 2000, by Gaye Leo. WITNESS my hand and official seal. My commission expires: Notary Public LEO -Declaration of Covenants 7