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240
wATER WEAgA[~iVIENT
and
NON-EXCLUSIVE EASEMENT
RECEIVED
LINCOLN COUNTY OLERK
03 OfiT I 0 FI'~ 3". I I
This Agreement and Non-Exclusive Easement is made and entered into this c~ ~
day of October 2003 by and between John Vicari (Vicari) and William Austin Hatter and
CherYl Ann Hatter (Hatter).
WHEREAS the parties own real properties adjacent to one another near Etna,
Wyoming with Vicari owning Tract A, Amended (2), as described on the attached
Exhibit A, and Hatter owning Tract B, Amended (2) as described on the attached Exhibit
B, with Tract B being generally described as 3333 East Etna County Road #110, and both
Tracts being depicted on a map dated July 3, 2003 and drawn by Surveyor Scherbel, Ltd.
bearing the title "Plat to Accompany Boundary Adjustment of Tract A - Amended and Tract
B - Amended for John Vicari within the NE 1/4NE 1/4 of Section 26, T 36N, R119W Lincoln
County, Wyoming"; and
WHEREAS Vicari previously drilled a water well on Tract A pursuant to Vicari Well
No. 1, Well Permit No. UW98364 issued to him on January 15, 1996 by the Wyoming State
Engineer's Office; and
WHEREAS the parties desire to create and establish certain easements, covenants,
conditions, restriction, rights and obligations in furtherance of a Plan for the establishment,
operation, and maintenance of a waterwell system to service the subject properties; and
WHEREAS the parties pledge to each other cooperation, civility, promptness and
fairness in their relations under this Agreement;
NOW THEREFORE the Parties hereby declare that the subject properties shall be
held, used, conveyed, and encumbered subject to the following covenants, conditions,
restriction, rights and obligations, all of which are for the purpose of enhancing and
protecting the value and usefulness of the subject properties, which constitute equitable
servitudes affecting and running with the subject properties, and shall be binding upon the
parties and their respective heirs, successors, and assigns, and all parties having or acquiring
any right, title or interest in or to any part of the subject properties. Without limiting the
foregoing, the parties hereto agree as follows:
1. Water Rights.
Hatter has purchased Tract B from Vicari. Hatter shall have and enjoy the right to use the
ground water for culinary, domestic and domestic irrigation purposes on Tract B pursuant to
State of Wyoming Permit No. UW98364, and by this instrument Vicari does convey to
Hatter rights of use, access and maintenance as further described herein.
2. Water Well And Pipeline Easement.
Th'e water well is located in the far eastern portion of Tract A midway between the northern
and southern boundaries of Tract A, as further described below. The water well and any
associated pumphouse improvements shall be located within the following area which is
subject to this Non-Exclusive Easement and which area is described as follows:
Starting from a point one hundred and eighty feet (180') South of the North Boundary
of Tract A and seventy feet (70') West of the West boundary of Tract B, thence East
seventy feet (70') to a point on the West Boundary of Tract A thence South a distance
of forty feet (40') thence West a distance of seventy feet (70') thence North forty feet
(40') to the point of beginning.
The pipeline running from Vicari's Tract A to Hatter's Tract B shall be burdened by an Non-
Exclusive Easement the minimum area of which shall be as described above or an area
extending the full length of the piPeline and covering an area of one rod (16.5 feet) wide over
the centerline of the pipeline. ¥icari hereby grants and conveys to Hatter a Non-
Exclusive Easement for the well and pipelines as described above. The 'purpose of the
easements shall include the right to install, construct, reconstruct, replace, inspect, maintain,
Common Well Agreement and Non-Exclusive Easement
Tract A: Vicari Page 2 of 9 Tract B: Hatter
operate, improve and locate a water well together with necessary pipeline with incidental
appurtenances, pumps, switches, connections, and structures in, on and under the easement
areas.
3. Term Of Easement.
These easements shall be perpetual and shall be binding upon each party's respective
heirs, successors, and assigns. Notwithstanding, Hatter's easement shall terminate should
Hatter ever drill a producing well on Tract B. These easements are intended to run with
the land which they serve and shall be appurtenant to Vicari's and Hatter's respective
properties described herein.
4. Easement Area.
The parties will keep the easement area clear of trees and structures that could interfere with
the intended use of the easement. In the event of disruption, the parties will use reasonable
care and all due speed to restore the easement area to the approximate condition and
elevation that existed prior to any construction and maintenance which may affect the
easement area, including the well itself, its pump, pipelines and related elements. The water
well easement shall be appurtenant to and for the benefit of Tract B and shall be binding
upon and shall inure to the benefit of the parties hereto and their respective heirs, successors,
and assigns.
5. Water Well Use; Types of Use; Area °fAuthorized Use of Water.
The primary purpose of the well shall be for cUlinary and domestic use and domestic
irrigation. Water shall not be provided for use on properties other than the subject properties
herein. Hatter is advised herein and accepts as conditions of this Agreement and Non-
Exclusive Easement that:
A. Vicari's Tract A is approximately 8.20± acres in size; and
B. Tract A may be subdivided into a number of lots; and
Common Wel Agreement and Non-Exclusive Easement
Tract A: Vicari Page 3 of 9 Tract B: Hatter
( ..~. 5 '','?,¢,~57r'~' ii
, 43
C. The land development regulations of Lincoln County, Wyoming may require
that future new lots created from within Tract A make use of a single source
of groundwater for domestic and irrigation purposes, which the Owner of
Tract A anticipates will be achieved through his construction of a pumphouse
and water metering and distribution system on the easement area described
herein; and
D. The owner of Tract B may be required by regulation of Lincoln County,
Wyoming to become a member of a homeowner's association or other similar
entity for the purpose of participating in an organized system of ownership,
management and repair of a common water source.
Hatter consents to such future subdivision to the extent it may affect or engage
Hatter's interests in the well or any easement area, and covenants to avoid burdening or
delaying future events of subdivision on Tract A.
6. Electrical Costs of Well Operation; Restrictions.
Each user shall pay a "simple, proportionate share" (as defined herein below) of the electrical
cost for such use as may occur on a monthly basis, so long as the user's use does not exceed
fifteen thousand (15,000) gallons in that month. By the term "simple, proportionate share"
the two parties to this Agreement intend to equally split the electrical cost so long as each
user's monthly use does not exceed fifteen thousand (15,000) gallons in that month. They
further anticipate that in the event another user is added by virtue of future subdivision to
Tract A, bringing the total to three (3) users, then the three (3) users would each pay one third
(1/3); four (4) users would each pay one fourth (1/4); and so on.
In the event any user uses a monthly amount of water (on a per month basis, and not
averaged over an annual or other time period) greater than fifteen thousand (15,000) gallons,
then, in addition to paying the simple, proportionate share, the user shall also pay a fee of one
Common Well Agreement and Non-Exclusive Easement
Page 4 of 9
Tract A: Vicari Tract B: Hatter
dollar ($1.00) per additional thousand gallons (or any increment thereof) with such
supplemental cost being paid into a reserve account at a bank of the parties' mutual
designation for the purpose of establishing a fund to offset emergency repairs or replacement
of the well components and system.
7. Maintenance And Costs of The Well Other Than Electrical Costs.
A. Only One (1) Well User:
In the event only the Owner of Tract B shall be using the common well, the
Owner of Tract A warrants and agrees that he shall pay for one half (1/2) of
the maintenance costs for a period of time not to exceed two (2) years from
the date of this agreement.
B. Only Two (2) Well Users:
For so long as there are only two owners making actual use of the well and its
appurtenances, each party shall equally pay (]/2 each) for their respective
Tracts all costs in the operation of the well including but not limited to
maintenance costs, casing, pumps, transmission lines, electricity, and all other
costs customarily associated with a water well. The parties shall each be
responsible for the costs of their respective transmission line from the well tO
their property together with their respective location and construction of such
transmission line. All work and activities contemplated in this Agreement
shall be undertaken in a good and workmanlike manner utilizing equipment
and materials of good quality and condition and in a manner that is in
compliance with all laws, ordinances, codes and regulations of governmental
agencies having jurisdiction. The easement area and water well facilities shall
be kept at all times in good, clean and operating condition and state of repair
and in a manner that is in compliance with good engineering practices then
Tract A: Vicari
Common Well Agreement and Non-Exclusive Easement
Page 5 of 9
Tract la: Hatter
prevailing in Lincoln County, Wyoming and with all laws, ordinances, codes
and regulations of governmental agencies having jurisdiction.
More Than Two (2) Well Users:
In the event more than two owners are foreseeably expected to make actual
use of the well and its appurtenances, the financial burden of relocating the
water pump and related equipment to the pumphouse, including labor,
materials, or initial construction of the pumphouse and its related equipment
shall fall entirely to the Owner of Tract A. In no event shall the Owner of
TraCt B bear any costs associated with the planning, engineering, labor,
materials, or initial construction of the PUmphouse and its related equipment,
including water transmission lines and hookups for service to the
improvements on Tract B. Following establishment of the pumphouse and its
successful operation, the Owner of Tract B may participate in its on-going
costs on terms described herein in paragraph 6.
Operations, Including Identi _ty and Authority of Manager.
Well Manager Until such time as a homeoWner's association
may be established which specifically assumes the rights and duties of water
well management, or unless the parties otherwise amend this easement by a
notarized writing duly filed with the Clerk of Lincoln County, Wyoming, the
parties designate the owner of Tract A as the Manager of the well and impose
on the Manager related chores of system maintenance (including the use of
contractors or subcontractors for appropriate specialized tasks) accounting,
bookkeeping and bill paying. The Manager shall have all reasonable authority
to keep the water well and distribution systems in continuous operation. The
Manager shall serve without compensation for time or skill, but may be
Tract A: Vicari
Common Well Agreement and Non,Exclusive Easement
Page 6 of 9
Tract B: Hatter
reimbursed for materials purchased and applied for the benefit of the water
well and distribution system.
B. Payment, Reimbursement to Include Interest and Attorneys Fees In
the event any party affected by this Agreement for any reason fails to pay that
party's share of costs, then any other party may make necessary payments to
maintain continuous service and be promPtly reimbursed by the non-paying
party, with reimbursement to include interest at one and one half percent
(1.5%) per month plus reasonable attorneys fees and other associated costs of
collection, Whether or not legal proceedings are formally instituted.
C. Termination or Restrictions of Use.
In his or her reasonable discretion, the Manager shall have the right to
discontinue service for non-payment of operational and electrical expenses by
any user, under the same rules and regulations that are used by local utility
companies, municipalities, water districts or other water companies. If in the
Manager's reasonable disCretion the Manager determines that a user is making
excessive and extraordinary use of water, the Manager shall have the right to
install restrictive devices on a distribution or branch line, or disconnect service
until the matter is resolved.
9. Recordation.
This Agreement shall be recorded in the office of the Lincoln County Clerk in Kemmerer,
Wyoming.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State
of Wyoming.
Tract A: Vicari
Common Well Agreement and Non-Exclusive Easement
page 7 of 9
Tract B: Hatter
247
11. Headings.
The headings used in this contract are for convenience only and are not to be used in its
construction.
12. Representations And Amendments.
All representations made in the negotiations of this sale have been incorporated herein.
There are no verbal agreements between the parties to modify terms and conditions, and the
undersigned parties hereby acknowledge receipt of a copy of this Agreement. This
Agreement may not be changed orally but only by an agreement in writing signed by the
parties against whom enforcement of any waiver, change, modification or discharge is
sought.
13. Attorney Fees.
In addition to the remedies stated above, the parties each agree that should they default in any
of the covenants or agreements herein, the defaulting party shall pay all reasonable costs and
expenses, including a reasonable attorney's fee, which may arise or accrue from enforcing
this Agreement, or in pursuing any remedy provided hereunder or by the statures of the State
of Wyoming, whether such remedy is pursued by filing a suit or otherwise.
V~ari ~ - Williarn'AuVti-n Hatter
Cher~l-/g~n~ ~qat~e; ' / ....
Common Well Agreement and Non-Exclusive Easement
TraCt A: Vicari Page 8 of 9 Tract B: Hatter
';48
STATE OF WYOMiNG
COUNTY OF
The foregoing instrument was acknowledged before me this t:~ day of De_--TO, do,m_-.
., 2003 by John Vicari.
WITNESS my hand and official seal.
Notary Public
My Cormnission Expires:
STATE OF WYOMING
COUNTY OF
The foregoing instrument was acknowledged before me this ~"t"'-day of ,2003 by William Austin Hatter and Cheryl Ann Hatter.
WITNESS my hand and official seal.
County o! ~-~.."~ State ol
Lincoln ~ Wyoming
My Commlsslon
Notary Public
My Commission Expires:
C'ommon W~ll Agreement and Non-Exclusive Easement
Pa~,~, ~-9
DESCRIPTION FOR
JOHN VICARI
TRACT .~ - AMENI)E~) (2)
Co ,
,.:. 4 9
To-wit: - -
That part of the NE¼NE¼ of Section 26, T36N R119W, Lincoln County, Wyor
part of that tract of record in the Office of the Clerk of Lincgln County in B~
Photostatic Records on page 195, described as follows:
ing, being
~ok 337 of
the BASE BEARING for this survey is the East line of the NE'/. of Section
R119W, b~ing NORTH;
each "comer" found as described in the Comer Record filed or to be filed in tt
the Clerk of Lincoln County;
each "point" marked by a 5/8" x 24" steel reinforcing rod with a 2" alurginum cap
inscribed, "SURVEYOR SCHERBEL LTD BIG PINEY. WY PLS 5368", with ~ppropriate
details;
35, T36N
Office of
SUBJECT to an easement for East Etna County Road No. 12-110;
BEGINNING at thc southwest point of said tract of record, N00°-07"-24"W, :~00.65
from the southwest c0mer of said NE¼NE¼; r f~et
thence N00° 07' v4"W · '" , '
· - -- , 329.61 feet, along the west hne of said NE¼Ntt¼ to
northwest point of said tract' ~ , the
thence S89°-27'-0Y'E, 1051.43 feet, along the north line of said tract, to a point;
thence S00°-04'-54"E, 289.93 feet, to a point;
thence S89°-26'-~0"E, 264.19 feet, to h spike on the east line of said NE¼NE¼
thence S00°-04'-54"E, 40.00 feet, along said east line, to the southeast spike o? ~id tract;
thence N89°-26'-00"W, 1315.38 feet, along the south line of said tract, to the P DINT OF
B E GiNNING;
ENCOMPASSING an area of 8.20 acres,more or less;
TOGETHER with a perpetual easement for all utiiiiie3. '~,er, -under mid aero a strip of
land twenty (20) feet in width, with the north line described as follows:
BEGINNING atthe northerly most northeast point of the above described
thence S89°-27'-0Y'E, 264.19 feet, to a spike on the east line of said NE¼NE
SUBJECT to a right of ingress, egress and public utilities, over, under and actor: of
land forty (40) feet in width, with the south line described as follows: ] a strip
BEGINNING at a spike on the east line of said NE¼NE¼, N00°-04'-54"W, 4~ 8.09 feet
fi.om the southeast comer of said NE¼NE¼;
thence N89°-26'-00"W, 65.00 feet, along the south line of said tract in Book 33~ to a
position; AND
DESCRIPTION FOR
JOHN VICARI
TRACT A - AMENDED (2)
pAGE TWO
'50
each "position,, is a calculated position with no monument set or found;
each "spike" marked by a 3/8" x 12" steel spike and referenced with a 5/8"
reinforcing rod with 2" aluminum cap insci'ibedl "SURVEYOR SCHERBE]
' PINEY WY PLS 5368", with appropriate details;
all in accordance with the plat prepared to be filed in the Office of the Clerk
County titled, "PLAT TO ACCOMPANY BOUNDARY ADJUSTMENT OF '
AMENDED AND TRACT B-fk4yfENDED FOR JOHN VICARI WITHIN THE
t 24" steel
LTD BIG
)f Lincoln
7R.ACT A-
INE¼NE¼
!003.
~ ~( ao- ~ 19126/John Vicari
DESCRIPTION FOR
JOHN VICARI
TRACT B - AN[ENDED (2)
~AtliD! j
To-wit:
That part of the NE¼NE¼ of Section 26, T36N Rll9W, Lincoln County, '~
part of that tract of record in the Office of the Clerk of Lincoln County in
Photostatic Records on page 195, described as follows:
BEGINNING at a spike on the east line of said NE¼NE¼, N00°-04'054"x3
from the southeast comer of said NE¼NE'A;
thence N89°-26'-00"W, 264.19 feet, to a point;
thence N00°-04 -54 'W, 289.93 feet, to a point on the north line of said tract of~
thence sgg°-27'-03"E, 264.19 feet, along said noah line, to the northeast spik,
on the east line of said NE¼NE¼;
thence S00°-04'-54"E, 290.01 feet, along said east line, to the SPLICE OF BEG
ENCOMPASSING an area of 1.76 acres, more or less; .
TOGETHER with a right of ingress and egress and public utilities over, unde
strip of land forty (40) feet in width, with the southerly line described as follow:
BEGINNING at a spike on the east line of said NE¼NE¼, N00°-00'.
feet
from file southeast corner of said NE¼NE¼;
thence N89°-26'-00".W, 65.00 feet, along the south line of said tract in
position;
SUBJECT to a perpetual easement for all utilities along the north twenty
above described tract, appartenant to Tract A - Amended (2) as depictc,
referenced below; AND
SUBJECT to an easement for East Ema County Road No. 12-110 mad other
record; ·
the BASE BEARING for this survey is the East line of the NEI/, of Section 35,r
being NORTH;
each "comer" found as described in the Comer Record filed or to be filed in th~
Clerk of Lincoln County;
each "point" marked by a 5/8" x 24" steel reinforcing rod with a 2" aluminum
"SURVEYOR SCHERBEL LTD BIG PINEY WY PLS 5368", with appropriate
each "spike" marked by a 3/8" x 12" steel spike and referenced with a 5/i
reinforcing rod with 2" aluminum cap inscribed, "SURVEYOR SCHERB
PINEY WY PLS 5368" with appropriate details;
each "position" is a calculated position with no monument found or set;
all in accordance with the plat prepared to be filed in the Office of the
County titled, "PLAT. TO ACCOMPANY BOUNDARY ADJUSTMENT O
~.A.~E,D~..,~I~D TRACT B~IVI~NDED FOR JOHN VICARI WITHIN r
SEC, TI'.(~r6': ,~3GN R11~¢/I~i~C~LN COU'~"i~'x~O~ NO'' dated 3 July
loming, being
Book 337 of
538.09 feet,
cord;
of said tract,
NNING;
and across a
4"W, 489.09
ook 337, to a
O) feet of the
on the plat
easements of
,36N R119W,
: Office of the
zap inscribed,
details;
"x 24" steel
;L LTD BIG
:k of LincoLn
; TRACT A-
lE NE¼NET~
2003.
i: I 19-26/John Vican