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HomeMy WebLinkAboutEAST RIDGE SIXTH FILING - BDR240014 - SUBMITTAL DOCUMENTS - ROUND 1 - EasementsMAINTENANCE COST SHARING EASEMENT DECLARATION THIS MAINTENANCE COST SHARING EASEMENT DECLARATION (“Declaration”) is made and effective as of _________________, 2023, by EAST RIDGE HOLDING, LLC, a Colorado limited liability company (“Declarant”) RECITALS WHEREAS, Owner owns Lots 1 and 2, East Ridge Sixth Filing, City of Fort Collins, Larimer County, Colorado, as depicted on that certain plat recorded DATE at reception number NUMBER in the records of the Larimer County Clerk and Recorder (the “Plat”). Lot 1 is referred to herein as the “Benefitted Property” and Lot 2 is referred to herein as the “Burdened Property”. WHEREAS, the Plat depicts an easement upon the Burdened Property for the benefit of the Benefitted Property, described as “NON-EXCLUSIVE WATERLINE EASEMENT” (the “Easement”). WHEREAS, Owner has installed, or will cause to be installed, certain infrastructure within the Easement, including but not necessarily limited to a water supply pipeline and water meter (collectively, the “Water Infrastructure”). WHEREAS, by this Declaration, Owner desires to clarify the rights and responsibilities of the current and future owners of the Benefitted Property and the Burdened Property regarding the use and maintenance of the Easement and the Water Infrastructure. DECLARATION 1. Water Infrastructure. All of the Water Infrastructure within the Easement which includes the water meter and all other infrastructure located on the downstream side of the water meter and which exclusively serves the Benefitted Property is referred to herein as the “Downstream Water Infrastructure”. All of the remaining Water Infrastructure within the Easement not including the Downstream Water Infrastructure is referred to herein as the “Upstream Water Infrastructure”. 2. Maintenance Costs. a. The owner of the Benefitted Property shall have the exclusive right and obligation to complete or cause to be completed such maintenance on the Downstream Water Infrastructure as such owner deems necessary or appropriate, at such owner’s sole cost and expense. The owner of the Burdened Property shall have no obligation to share in such maintenance costs, except to the extent that such owner damages the Downstream Water Infrastructure, in which case such owner shall cause the Downstream Water Infrastructure to be repaired according to section 4 below. b. The owner of the Benefitted Property shall have no obligation to complete or cause to be completed any maintenance on the Upstream Water Infrastructure, except to the extent that such owner damages the Upstream Water Infrastructure, in which case such owner shall cause the Upstream Water Infrastructure to be repaired according to section 4 below. 3. Use of Easement. a. The owner of the Benefitted Property shall have the non-exclusive right to enter upon the Easement for the purposes of: i. Surveying, locating, installing, constructing, using, operating, maintaining, inspecting, repairing, altering, removing, and replacing the Downstream Water Infrastructure, in whole or in part, and all necessary subsurface and surface appurtenances for the transportation of water and the operation and control of the Downstream Water Infrastructure; ii. Marking the location of the Easement and Downstream Water Infrastructure thereunder by suitable markers set and maintained in the ground at locations which shall not interfere with the reasonable use by the owner of the Burdened Property of the Easement area; and iii. Cutting and clearing trees, brush, debris and other obstructions on the Easement that might interfere with the operation and maintenance of the Downstream Water Infrastructure. b. Upon exercising any of the rights described in section 3.a. above, the owner of the Benefitted Property shall have the obligation to restore the disturbed area to a substantially similar condition as existed immediately before such work was completed. c. The owner of the Burdened Property shall not cause or allow the Easement area to be used to: i. Construct or allow the construction of any buildings or other structures on or under the Easement; ii. Impound water or other substance in, on or over the Easement; iii. Plant trees, shrubs or other landscaping of any type that will exceed three (3) feet in height at mature growth within the Easement; iv. Grant subsurface or surface easements within the Easement Area to other utilities, cable service providers or any other entity for utilities and/or lines running parallel to or crossing the Downstream Water Infrastructure, except with the prior written approval of the owner of the Benefitted Property; v. Change the surface of the Easement area, except with the prior written consent of the owner of the Benefitted Property, which shall not unreasonably conditioned, delayed, or withheld. 4. Repair Costs; Liability. a. Each owner of the Benefitted Property and the Burdened Property, respectively, shall be solely responsible for any damage caused to the Water Infrastructure by such owner, or by such owner’s agents, employees, contractors, and subcontractors. Such repair shall be completed expeditiously, but not later than seven (7) days after damage occurs. In the event that the owner of the Burdened Property is responsible for repairs under this section 4, but such owner does not cause such damage to be timely repaired within seven (7) days, the owner of the Benefitted Property may, but shall not be obligated to, cause the repair to be completed in order to restore water service to the Benefitted Property. In such case, at the completion of such repair work, the owner of the Benefitted Property shall send an invoice for such repair work to the owner of the Burdened Property, which shall pay such invoice in full within fourteen (14) days. Thereafter any unpaid amounts shall accrue interest at the maximum amount authorized by Colorado law. b. Each owner of the Benefitted Property and the Burdened Property, respectively, shall be solely liable for any damage or injury to the other owner or any third parties, caused by such owner, or by such owner’s agents, employees, contractors, and subcontractors. The responsible owner shall indemnify, defend, and hold harmless the non-responsible owner, including reasonable attorneys’ fees incurred by the non-responsible owner related to any such claim(s). 5. Perpetual Term. This Declaration shall have a perpetual term and shall be a covenant running with the land for both the Benefitted Property and the Burdened Property, and may not be amended except by a writing signed by the owners of both properties. To the maximum extent permitted by law, the obligations hereunder shall not merge upon the mutual ownership of the Benefitted Property and the Burdened Property, and shall be enforceable as a covenant as if set out in full on the Plat. 6. No Third-Party Beneficiaries. The terms, conditions, and provisions in this Declaration are solely intended to bind and benefit the owners of the Burdened Property and the Benefitted Property, respectively. No other persons or entities are intended to be direct or incidental beneficiaries of this Declaration and no third party shall have any right in, under, or to this Declaration. 7. Applicable Laws. This Declaration shall be governed by, and construed in accordance with, the laws of the State of Colorado. The exclusive venue for the resolution of any dispute arising hereunder shall be in the state courts of Larimer County, Colorado. 8. Disputes Between Owners. In the event of any dispute arising under the terms and conditions of this Declaration between the owners of the Benefitted Property and the Burdened Property, respectively, a court shall have jurisdiction to enter any remedy available at law or in equity, including an order requiring the non-prevailing party to pay the reasonable attorneys’ fees of the prevailing party. 9. Severability. If any clause or provision of this Declaration is adjudged invalid and/or unenforceable by a court of competent jurisdiction or by operation of any law, such clause or provision shall not affect the validity of this Declaration as a whole, but shall be severed herefrom, leaving the remaining Declaration intact and enforceable. DECLARANT: EAST RIDGE HOLDING, LLC a Colorado limited liability company By: Hartford Homes, LLC, a Colorado limited liability company Its: Manager By: Landon Hoover Its: Manager