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Home My WebLink About3.0 Additional Conditions of ApprovalI I I I I I I I I I I I I I I I I I I LATHAM EXEMPTION SUBDIVISION ADDITIONAL CONDITIONS FOR APPROVAL Kenneth L Latham and Marilyn K. Latham I I I I I I I I I I I I I I I I I I I RECEIVED JUN 2 2 2004 GARFIELD COUNTY BUILDING & PLAN NI NG LATHAM EXEMPTION SUBDIVISION Additional Conditions for Approval 1. 2. 3. 4. 5. 6. 7. 9. All representations of the Applicant, either within the application or stated at the meeting before the Board of County Commissioners, shall be considered conditions of approval. The applicant is presenting a plat to the Commissioners for signature within 120 days of the conditional approval of the exemption--March 1, 2004 Well for Lot 2. This was changed with permission from Fred Jarman to include Lots 2, 3, and 4. a. A four-hour pump test was performed on the well to be used b. Well completion report demonstrating the depth of the well, the characteristics of the aquifer, and the static water level. c. Results of the four-hour pump test. d. Opinion of person conducting the well test that this well should be adequate to supply water to the number of proposed lots. e. An assumption of an average of no less than 3 .5 people per dwelling unit, using 100 gallons of water per person, per day. f. Well sharing declaration that discusses all easements and costs associated with the operation and maintenance of the system and who will be responsible for paying these costs. g. Water will be stored in cisterns, (tanks) of a minimum of 1000 gallons. Plat notes "a" -"k" appear on the draft copy Vegetation management Easements for irrigation ditches, water lines, etc. for Lots 2, 3, and 4 are legally described on the final plat as well as the Declaration of Protective Covenants. Easements for irrigation ditches, for Lots 2, 3, and 4 are legally described on the final plat as well as the Declaration of Protective Covenants. 8. Easements for telephone and electric utility lines are legally described on the final plat as well as the Declaration of Protective Covenants. Letter from Daniel LeMoine with opinion of Easement Deed. I I I I I I I I I I I I I I I I I I I PROPOSED CHANGE TO WATER WELL COMMUNITY SHARING AND MAINENANCE AGREEMENT RATIONALE: When developing the plans for the Latham Subdivision Exemption, the well-spring on Lot 4 was developed, tested and approved by the Colorado Division of Water Resources. At the preliminary approval meeting with the County Commissioners on March 1, 2004, a list of items to be acted upon included drilling the permitted well on Lot 2. The well was drilled and is producing 6+ gallons per minute. It has been tested I I I I I I Form No. GWS-25 OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES 818 Centennial Bldg., 1313 Sherman St., Denver, Colorado 80203 (303) 866-3581 APPLICANT KENNETH LATHAM 1985 COUNTY ROAD 293 RIFLE, CO 81650- WELL PERMIT NUMBER ___ 61 __ 0~3~9 ___ -....;_F __ DIV. 5 WD39 DES. BASIN MD Lot: 2 Block: Filing: Subdiv: LA THAM EXEMPTION APPROVED WELL LOCATION GARFIELD COUNTY NW 1/4 NW 1/4 Section 11 Township 6 S Range 93 W Sixth P.M. DISTANCES FROM SECTION LINES 890 Ft. from North 870 Ft. from West UTM COORDINATES Section Line Section Line EXST (970) 625-2346 I CHANGE/EXPANSION OF USE OF AN EXISTING WELL Northing: Easting: ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT I 1) I 2) I 3) I 4) I 5) I 6) I 7) 8) I 9) 10) I 11) I CONDITIONS OF APPROVAL This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this permit does not assure the applicant that no injury will occur to another vested water right or preclude another owner of a vested water right from seeking relief in a civil court action. The construction of this well shall be in compliance with the Water Well Construction Rules 2 CCR 402-2, unless approval of a variance has been granted by the State Board of Examiners of Water Well Construction and Pump Installation Contractors in accordance with Rule 18. Approved pursuant to CRS 37-90-137(2) for the construction of a well, appropriating ground water tributary to the Colorado River, as an alternate point of diversion to the Avalanche Canal and Siphon, on the condition that the well shall be operated only when the West Divide Water Conservancy District's substitute water supply plan, approved by the State Engineer, is in effect, and when a water allotment contract between the well owner and the West Divide Water Conservancy District for the release of replacement water from Ruedi Reservoir is in effect, or under an approved plan for augmentation. WDWCD contract #030724KML(a) amended. Approved for an expansion of use of an existing well constructed March 11, 2004, to a depth of 125 feet, under permit no. 59991-F (canceled). The issuance of this permit hereby cancels permit no. 59991-F. Approved as a well on a residential site of 6.63 acre(s) described as lot 2, Latham Subdivision Exemption, Garfield County. Further identified as 1985 County Road 293, Rifle, CO 81650. The use of ground water from this well is limited to ordinary household purposes inside three (3) single family dwellings, the irrigation of not more than 12,000 square feet (0.275 of an ac!:_e) of home gardens and lawns, and the watering of fifteen (15) head domestic animals. All use of thi ·Will be curtaile.9 unless the water allotment contract or a plan for augmentation is in effect. This well is known Latham Well. The maximum pumping rate of this well shall n exceed 15 G . The average annual amount of ground water to be appropriated shall not exc~e-feet (666,689 gallons). The owner shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, and court case number(s) as appropriate. The owner shall take necessary means and precautions to preserve these markings. This well shall be located not more than 200 feet from the location specified on this permit. A totalizing flow meter must be installed on this well and maintained in good working order. Permanent records of all diversions must be maintained by the well owner (recorded at least annually) and submitted to the Division Engineer upon request. j)-~ '""--- NOTE: Parcel Identification Number (PIN): 23-2177-112-00-078 () 'f /.2.. 6 ,A OCJ tf NOTE: Assessor Tax Schedule Number: R210432 (totaling 59.93 acres) I APPROVED DMW State Engineer By EXPIRATION DATE I Recei t No. 9501854 04-26-2005 DATE ISSUED 04-26-2004 I I I I I I Form No. GWS-25 OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES 818 Centennial Bldg .. 1313 Sherman St., Denver, Colorado 80203 (303) 866-3581 APPLICANT KENNETH LATHAM 1985 COUNTY ROAD 293 RIFLE, CO 81650- (970) 625-2346 WELL PERMIT NUMBER --~6-""'10""""3'-'"-9 ___ ._F __ DIV. 5 WD 39 DES. BASIN MD Lot: 2 Block: Filing: Subdiv: LATHAM EXEMPTION APPROVED WELL LOCATION GARFIELD COUNTY NW 1/4 NW 1/4 Section 11 Township 6 S Range 93 W Sixth P.M. DISTANCES FROM SECTION LINES 890 Ft. from North 870 Ft. from West UTM COORDINATES Section Line Section Line EXST I CHANGE/EXPANSION OF USE OF AN EXISTING WELL Northing: Easting: ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT CONDITIONS OF APPROVAL I I I I I I I 1) This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this permit does not assure the applicant that no injury will occur to another vested water right or preclude another owner of a vested water right from seeking relief in a civil court action. 2) The construction of this well shall be in compliance with the Water Well Construction Rules 2 CCR 402-2, unless approval of a variance has been granted by the State Board of Examiners of Water Well Construction and Pump Installation Contractors in accordance with Rule 18. 3) Approved pursuant to CRS 37-90-137(2) for the construction of a well, appropriating ground water tributary to the Colorado River, as an alternate point of diversion to the Avalanche Canal and Siphon, on the condition that the well shall be operated only when the West Divide Water Conservancy District's substitute water supply plan, approved by the State Engineer, is in effect, and when a water allotment contract between the well owner and the West Divide Water Conservancy District for the release of replacement water from Ruedi Reservoir is in effect, or under an approved plan for augmentation. WDWCD contract #030724KML(a) amended. · 4) Approved for an expansion of use of an existing well constructed March 11, 2004, to a depth of 125 feet, under permit no. 59991-F (canceled). The issuance of this permit hereby cancels permit no. 59991-F. 5) Approved as a well on a residential site of 6.63 acre(s) described as lot 2, Latham Subdivision Exemption, Garfield County. Further identified as 1985 County Road 293, Rifle, CO 81650. 6) The use of ground water from this well is limited to ordinary household purposes inside three (3) single family dwellings, the irrigation of not more than 12,000 square feet (0.275 of an acre) of home gardens and lawns, and the watering of fifteen ( 15) head domestic animals. All use of this well will be curtailed unless the water allotment contract or a plan for augmentation is in effect. This well is known as Latham Well. 7) The maximum pumping rate of this well shall not exceed 15 GPM. 8) The average annual amount of ground water to be appropriated shall not exceed 2.046 acre-feet (666,689 gallons). I 9) The owner shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, and court case number(s) as appropriate. The owner shall take necessary means and precautions to preserve these markings. 10) This well shall be located not more than 200 feet from the location specified on this permit. I 11) A totalizing flow meter must be installed on this well and maintained in good working order. Permanent records of all diversions must be maintained by the well owner (recorded at least annually) and submitted to the Division Engineer upon ~ ' ~~~ I NOTE: Parcel Identification Number (PIN): 23-2177-112-00-078 ()Cf /.2... 6 A. Ot:J ¥ NOTE: Assessor Tax Schedule Number: R210432 (totaling 59.93 acres) I APPROVED DMW State Engineer By I _R_e_c_e~i _tN_o~·~9~50~1~8_5_4 _________ --D~A~T_E_IS_S~U~E=D~_..;:0~4~-2~6~-2~0~0~4 ____ __;;;;;;E~X~P~IRA..;;....;,,,;.T~IO~N--D~A~T=E---0~4--~26_-_20_0~5---- I I I I I I I I I I I I I I I I I I I Fonn STATE OF COLORADO For Office Use Only R·t .. Cr::iVED '~.111o'7'!l:.m.. No. OFFICE OF THE STATE ENGINEER GWS-10 818 Centennial Bldg., 1313 Sherman St., Denver, CO 80203 6/2003 (303) 866-3581 Fax (303) 866-3589 MAY 14 '04 STATEMENT OF BENEFICIAL USE WAJ E l'l Ri.se<.mcu; S'fi•df r;:r~~ER GlE~~"'C'tt Insert the Well Permit Number lti/{)3q F Name, address and Qhone of the well owner: NAME(S) Ke n n e.. th Laihom Mailing Address /q 8 5 &un+¥ f-<oQd 2q3 City, St. Zip R;fl e. 1 Co 81/JJ50 Phone ( q7 D ) &:>25-23i.f(p WELL LOCATION: County (~ArHe Ir-I Owner's Well Designation iq 25 Coun1:f f?oaol 2,q 3 t1 If fe co ?5/w5D (Address) (City) (State) (Zip) NW 1/4 of the N'W 1/4, Sec._/ J_, Twp. l£J D N.or~ .• Range q 3 D E. or G"w .. /oi_b_ P.M. Distance from Section Lines ~qo Ft. From ~-or D S., <610 Ft. From DE. or ~Line. Subdivision Name I /1 th n m Suhdivision Lot ~ • Block , Filing/Unit .The. well '.s being used for the following purpose(s): Qrdtr'lllf¥ housebQld purpc~es i~~:1de. 3 sir15Je,. farr;i ly r:\wdl inss lrrinn+if\n /)t not mofe-i'han 12 ODn c:,J' ofhamP nnrriP11'5 la\\Jn st: wa~sinl'.l l:J head rlomisflc, Doi'rnals. . Wat;r from the well was first used beneficially under this permit number, for the above described purposes on '-l /21 /oi./ (Do not report a date of use before the issued date of this permit.) . ' 1 The pumping rate claimed is 15 gallons per minute. (From the Pump Installation and Test Report.) The average annual amount of water diverted is 2.Q~~ acre feet. The land irrigated (watered) by water from this well is 12.1000 D Acres ~quare feet, described as: Number or as L~dham Subdivision Lot(s) 2 Block Filing/Unit Well constructed by: 5 he Hua Dci II i ~ License No. /O 7,.C Pump installed by: OOl'.}:Je,Qwoec License No. N/A r Meter Mfg. By: Am eo Serial No. 131.J g I D :J 8 Date Installed 4/z1/o~ I (we) claim and say that I (we) are the owner(s) of the well described above, know the contents of the statements made herein, and state that they are true to my (our) knowledge. Please print the Signer's Name & Title Signature(s) of the owner. Date ~eooe±b lafhQm, owoer ~/~ £-/J-6'/_ For Office Use Only State Engineer By Date · PUMP INSTAll.A TION AND TEST REPORT STATE OF COLORADO, OFFICE OF THE STATE ENGINEER 1. WELL PERMIT NUMBER lo I 039 F OWNER NAME(S) Ke.n ne th LQ+ham Mailing Address l9 8; C.ountlt 6oad 2q 3 City, St. Zip Bi fl e _c.o 81_ so Phone (q70) lo2.S-2.3tJ[p 3. WELL LOCATION AS DRILLED: NW 1/4 NW 1/4, Sec. 11 DISTANCES FROM SEC. LINES: g-g 0 ft. from North Sec. line. and '8'70 ft. from SUBDIVISION: La-th~~,S~ivision STREET ADDRESS AT WELL LOCATION: q 5 oun Road 2.'13 Twp. __ to __ s , Range q3 SLL merslble. n Well ump PUMP DATA: Type ID $ P Y C. 0 ZH-03 Sta..-Ri+e. Installation Completed 04h'7 hoo':(_ Pump Manufacturer_S.,..T,...Cl.._-_B......._.i+ ..... e.-..._ __________ Pump M:>.:!~I No. 1ost>]cd~H-o-:-1 Design GPM I 5 at RPM 3i 50 , HP 1/z. , Volts 230 , Full. Load Amps..,.....w~ ....... - Pump Intake Depth /20 Feet, Drop/Column Pipe Size I (one) Inches, Kind Seh <30 PVC.. dfD ./ ' t ADDITIONAL INFORMATION FOR PUMPS GREATER THAT 50 GPM: TURBINE DRIVER TYPE: D Electric D Engine D Other-.,.---------------- O'esign Head feet, Number of Stages , Shaft size inches. OTHER EQUIPMENT: Airline Installed D Yes ~o, Orifice Depth ft. . Monitor Tube Installed D Yes~. Depth ft. ___ _ Flow Meter Mfg. Am c..o Meter Serial No. 13 ~ <t l 0 t-f 8 Meter Readout G3'Gallons, D Thousand Gallons, 0 Acre feet, D Beginning Reading • TEST DATA: D Check box if Test d·ata is submitted on Supplemental Form . Total Well Depth Static Level Date Measured Date 12 5 ft-. Time Rate (GPM) Pumping Lvl. DISINFECTION: Type Y( Cholro)( ble.ac.h Water Quality analysis available. GJYes 0 No Amt. Used y2, o..110 n --~--~~--~ o. I have read the statements made herein and know the contents thereof, and that they are true to my knowledge. (Pursuant to Section 24-4·104 (13)(a) C.R.S., the making of falsq statements here!n constitutes perjury in the secon degree and is punishable as a class 1 misdemeanor.] ailing Address Name/Title (Please type or print) Signature ~/V #" <i!_. f J, I I I I I 1· I I I I I I I I I I I I I ~·..,}~M_, ~ -ft~~~~~ --..... - Send to: Division of Water Resources Fax: 303-866-3589 MAY 14 '04 1313 Sherman Street, Room 818 Phone: 303-866-358).,t.Jrn P£S®UHcH _________ D_en_v_e~r,_C_ol_o_ra_d_o_8_02_0_3 ___ · _____________________ ~~~-1~EA If the pu~ping equipm~µ.t bas been _installed.~ ...... . : _..:;.i:,;~~ ~ . .. r·~ - . . ·,~.:"':'". ... . -· ~·. • ; .{ ·. • Tue pu~~~s 'insilr11.tc1fu my we1,i by_: KM~~fh Wth(\m) Ho me own ef d<,~ ;··· ·• >~Z· ~-;~-~~::.·' _ :~-~t. -:u: · , (pum~~f~n~actor) on rif?&i"-... . . ;;z-~ '· ·. ~; · · d k·. .. .... -~: -. · . ._(~~~th) ·. : .. C~ay) .. ,. . .J~e8_r;)"/ · ·· · .. • \;,.:. .... ~ ,.,..";,. •, • "'• .' • • ' I~ : ~-. _.a Comments: !LtrdL.---r ,•. I I I I I I I I I I I I I I I I I I I Shelton Drilling Corp P.O. Box 1059 Name : Kenny Latham c/o Address : 1985 County Road 293 City, St, Zip : Rifle Co. 81650 Phone# Hole Size Depth Type Casing ID 9.0 40 Steel 6.5 6.5 128 PVC 5.0 Basalt, Co. 81621 (970) 927-4182 Lie.# 1095 Invoice # : C-2243 Date 3/12/2004 Permit #: 59991-F Location : Rifle -------- Casing OD From-To Perforated Ft: 30 ft 7.0 0-40 Estimated : 5+ gpm * 5.5 28-128 Static Level: 40 ft Total Drilled :_ill ft Recommended Pump Set Depth 120 Ft. Pumping __ 5 GPM For Pump Installation We Recommend : Samuelson Pump 945-6309 (Raun Samuelson) J & M Pump Co 945-6159 (Rick Holub) Aqua Tee Pump 984-0311 (Tom Platzer) Instructions. : Price Per Foot Feet @ $ Per Foot = $ 0.00 --- Feet @ $ Per Foot = $ 0.00 Total Footage Charge $ 0.00 Minimum Well Charge (if applicable) ............................. $ 3000.00 Conditions Of Payment : __________________ _ pay $ 3000.00 PLEASE READ THE FOLLOWING RECOMMENDATIONS 1. *WE STRONGLY RECOMMEND A VALID PUMP TEST BE CONDUCTED BY A LICENSED PUMP INSTALLER TO DETERMINE THE ACTUAL WELL PRODUCTION AND WATER QUALITY. THIS SHOULD ESTABLISH THE ACTUAL WELL PRODUCTION PARAMETERS WHICH CANNOT BE DETERMINED WHILE DRILLING 2. OUR GUARANTEE IS VALID ONLY IF A LICENSED PUMP INSTALLER INSTALLS THE PUMPING SYSTEM !! 3. The landowner is ultimately responsible for the plugging and abandonment of dry holes or replaced wells. according to State Rules and Regulations. Please contact us for details and/or prices. 4. ALL INVOICES DUE AND PAY ABLE WITHIN 10 DAYS OF INVOICE DATE, UNLESS PRIOR ARRANGE- MENTS ARE MADE. A 1.5% HANDLING CHARGE PER MONTH MAY BE ADDED 15 DAYS FROM FIRST BILLING. Please call us if you have any questions. THANK YOU I I I I I I .I I I I 1· I I 1· .I I I I I March 23, 2004 Kenny Latham 1985 County Rd 293 Rifle, CO 81650 ATTN: Kenny On March 20, 2004, a well test was conducted on a well at 1985 County Rd. 293. The following information was obtained; . Well Depth----------------:--------------------128' · Casing Size--------.;. ____ ...; ___________________ (7 x 5)" .· Standing water level-----------,---------------29' T · Total test time-----------------..,-------------4 Hours Drawdown to ..: _________________________ _::.._.::_...;_~53' 1 O"' Production· is ________ ., ________ ...;________________ 6 GPM · This test was conducted with 1/2 Hp pump. (10 gpm) The well recovered back to 29' 9" in 60 Minutes. If you have any questions please call me, Raun Samuelson at 970-945- 6309. . Sincerely; Raun E Samuelson Samuelson Pump Co. P.O. Box 297 • Glenwood Springs, CO 81602 ~ (970) 945-6309 • Fax (970) 947-9448 . Water Systems • Sales, Service & Installation ~~~~--------------------1111111111 I JOHN C. KEPHARt & CO. I 435 NORTH AVENUE • PHONE: (970) 242-7618 • FAX: (970) 243-7235 • GRAND JUNCTION, COLORADO 81501 --- I -ANALYTICAL REPORT - Ken Lat.ham I Received from: 1 r.iB5 -· '.293 F~:o.:21d F~ifJ.£:?, CD 81b50 970···tJ'.2:S·--2:S46 I I I I I I I I I I I I I I I 491~:.i Customer No. -----------Laboratory No. ____________ Sample----------- 4/12/04 Date Received ------------------Date Reported __________________ _ 4/~'.i/04 SampJ.E',: Total Dissolved Solids Nit.rate(N) Nitrite· (N) Tot.al Coliform Bacteria 4915 \,>J;:tt (;?r· Eiamp l f"2 1 '180 mg/l o .. 45 mg/1 (l. 00 mg/l Li mi ts for Public: Drinking Suppl i t~S 500 mg/l 1 O. 0 mg I 1 1. 0 mg/ 1 0 colonies/100ml sample mLtst. bt~ 1 ess than 1 Di rector: I I I I I I I I I I I I I I I I I I ,/ .. :'.. ,,. 4•.~:-.'' !15' / 'DECLARATION OF WATER WELL USE AND MAINTENANCE { AND FORMATION OF UNINCORPORATED ASSOCIATION ! \ THIS Declaration is made on the date set forth below, by KENNETH L. LATHAM and \ • \ MARILYN K. LATHAM ("Declarants") whose address is 1985 County Road 293, Rifle, Colorado J' \ 81650, owners in fee of those real properties described as Lot 1, Lot 2, Lot 3, and Lot 4 Latham \\ ~-/ ~.ubdivision Exemption, Garfield County, Colorado. , \' -f \ WHEREAS, Declarants desire to form an association to own and manage a water~~ r \ :-strnci:tlf~ucted under Colorado Di vision of Water Resources Well Permit 1'(o. 5 9991, (W~st Divide Contract·#030724KML(a)), and the water to be diverted by said well s~~m_,i! v1 ing dom.1;stlewater or a perm1tte uses on said Lot 2, Lot 3, and Lot 4; and ----~ .. ,., .. "' WHEREAS, Lot 1 is to ~its own well constructed under Colorado Division of Water Resources Well Permit N 2522 2; ~(._, • . (I..-.-.- WHEREAS, the well and casing and pump serving Lot 2, Lot 3, and Lot 4 shall be utilized by said owners of Lot 2, Lot 3, and Lot 4 as a lawful water right; and WHEREAS, the water well and system serving Lot 2, Lot 3, and Lot 4 require continuing maintenance and operation, the costs of which must be borne by the owners and users thereof; and WHEREAS, the well permit for Lot 2, Lot 3, and Lot 4 contemplates perpetual, though not constant, use and operation of the well, pump and the appurtenant structures; and WHEREAS, Declarants desire to create this Declaration for the purpose of clarifying respective rights and duties and establishing easements and procedures for operating the water well serving Lot 2, Lot 3, and Lot 4 and delivering water to the properties of the owners of Lot 2, Lot 3, and Lot 4, and for providing a method for equitably dividing the water derived from operation of the system, and for equitably allocating the shared payment of costs of operation and maintenance of the water well and its pump and other structures by the owners of Lot 2, Lot 3, and Lot 4. NOW THEREFORE, Declarants set forth the following concerning the use and maintenance of the joint well and system serving Lot 2, Lot 3, and Lot 4: 1. Declarants hereby create an unincorporated nonprofit association pursuant to the Colorado Uniform Unincorporated Non-Profit Association Act, Colorado Revised Statutes 7-3 0- 101 et seq., known as the LOT 2, 3 AND 4 LATHAM SUBDIVISION WELL SHARING ASSOCIATION (hereafter the "Association"), for purposes of administering the well serving Lot 2, Lot 3, and Lot 4, together with the related structures. The Association shall have all duties, rights and powers provided herein, including the power to enforce the provisions of this Declaration. The owners of record of fee simple title to Lots 2, 3 and 4 shall be Members of the Association. If a Lot is owned by more than one person, all of the persons owning an interest in fee simple title to the Lot shall, in the aggregate, be the Lot Owner thereof and such multiple persons comprising the Lot Owner shall, among themselves, designate one of their number to participate in, and represent RECEIVED STUVER, LEMOINE & BURWELL, P.C. JUN 1 5 2004 GARHlLD COUNTY BUILDING & PLANNING THOMAS W. STUVER DANIEL D. LEMOINE BARBARA C. BURWELL Fred Jarman, Senior Planner ATTORNEYS AT LAW 120 WEST THIRD STREET P. 0. BOX 907 RIFLE, COLORADO 81650 June 14, 2004 Garfield County Building & Planning Dept. 108 Eighth Street, Suite 201 Glenwood Springs, CO 81601 RE: LATHAM SUBDIVISION EXEMPTION Dear Fred: TELEPHONE 970 -625-1887 FAX 970 -625-4448 This letter is in response to paragraph 9 of your March 1, 2004 letter which requested an opinion as to whether the easement deed recorded in Book 1199 at Page 748 granted an exclusive or non- exclusive easement. Unless the grant conveying an easement specifically characterizes the easement as "exclusive," the grantor of the easement retains the right to use the property in common with the grantee. Bergen Ditch and Reservoir Companv v. Barnes, 683 P.2d 365 (Colo. Ct. App. 1984). The easement deed about which you have inquired is silent as to whether the easement is exclusive or non-exclusive. As a result, the easement granted is non-exclusive. In addition, the easement deed by its own terms creates a permanent easement for the benefit of the real property owned by the grantees (Arvelda M. Ward, Dale 0. Coombs, Gail S. Coombs, Kenneth L. Latham and Marilyn K. Latham) and its purpose is stated as being to recognize an existing roadway. I hope that this assists your analysis. If you have any other questions, please let me know. Very truly yours, STUVER, LeMOINE & BURWELL, P.C. DDLskl pc: Kenneth and Marilyn Latham -nllC:E\\T"E\) STUVER 8c LEMOINE, P.C. ~ ATTORNEYS AT LAW l')l'\t)~ 120 WEST THIRD STREET \.l ~R " ~ t.\J P. o. BOX 907 ~\ '( RIFLE, COLORADO 81650 cou~' (;1-.R~\£L0 \}>.ti~\~G THOMAS W. STUVER DANIEL D. LEMOINE BARBARA C. BURWELL e,\.l\LO\l-lG & p Don Deford, Esq. Garfield County Attorney 108 Eighth Street, Suite 219 Glenwood Springs, CO 81601 March 25, 2004 RE: LATHAM SUBDIVISION EXEMPTION APPLICATION Dear Mr. Deford: TELEPHONE 970 • 625-1887 FAX 970 • 625·4448 As you know, the Latham Subdivision Exemption Application went to public hearing before the Commissioners earlier this month. As I began further review of an issue raised by Mr. Jarman, I discovered that we inadvertently failed to send mailed notice to certain property owners within 200 feet of the Latham's property. Upon discovering the mistake, we approached each of the property owners (Ranch Savers, LLC; Olive Coombs; and Roaring Fork Reclamation, LLC). As you can see by the enclosed, each of these property owners signed a Waiver of Service, Waiver of Comment and Statement of No Objection to the Latham Exemption Application. Enclosed herein please find the original executed Waivers for each of the inadvertently omitted property owners for inclusion in the record. I apologize for the oversight and any inconvenience that it may have caused. If you have any questions or need any additional information, please feel free to give me a call. Thank you for your attention to this matter. Very truly yours, STUVER & LeMOINE, P.C. Of\NlEL D. LEMOrNE Daniel D. LeMoine DDL:skl Enclosures pc w/copy of enc.: Kenneth and Marilyn Latham Fred Jarman I I I I I I I I I I I I WEED MANAGAMENT PLAN Steve Anthony, weed management officer of Garfield County, made an on-site visit to the proposed Latham Subdivision April 27, 2004. He gave specific instructions for the mapping of noxious weeds and the removal and disposal of Russian Olive trees The attached map shows the location of the Russian Olive trees which are in the process of being removed. All ditch banks and road sides are sprayed at least spring and fall. Weed management has also been included in the final subdivision rules. WEED MANAGAMENT PLAN Steve Anthony, weed management officer of Garfield County, made an on-site visit to the proposed Latham Subdivision April 27, 2004. He gave specific instructions for the mapping of noxious weeds and the removal and disposal of Russian Olive trees The attached map shows the location of the Russian Olive trees which are in the process of being removed. All ditch banks and road sides are sprayed at least spring and fall. Weed management has also been included in the final subdivision rules. ARTICLE4 Water and Landscaping Restrictions Irrigation uses on any of the lots shall not exceed that allowed for the respective permit for each lot. ARTICLES Additional Use Restrictions The use of the Lots shall be in strict accordance with the conditions of approval and Plat restrictions contained in the County Resolution approving the Latham Subdivision Exemption, including but not limited to the Weed Management Plan approved by the Weed Management Director of Garfield County. All Lot Owners shall use and occupy their respective Lots in conformity to all governmental regulations applicable thereto. Pursuant to the Colorado Noxious Weed. Act and the Garfield County Noxious Weed Management Plan, it is fae responsibility of each Lot owner to manage and eradicate noxious weeds on their property. Accordingly, each Lot owner shall suppress such weeds as necessary to prevent their spread and germination in compliance with state and local laws, regulations and plans. ARTICLE 6 Enforcement Any aggrieved owner of a lot within the Latham Subdivision Exemption shall have the right to enforce any of the provisions, covenants, conditions and restrictions contained in this declaration against the owner of the other lot. The right of enforcement shall include the right to bring an action for damages, as well as an action to enjoin any violation of any provision of this Declaration. Each remedy provided under this Declaration is cumulative and not exclusive. In any action or proceeding under this Declaration, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorneys fees and expert witness fees. ARTICLE7 Governing Law This Declaration shall be construed and governed under the laws of the State of Colorado. ARTICLES Severability Each of the provisions of this Declaration shall be deemed independent and severable, and the invalidity or unenforceability or partial invalidity or partial unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision. e. all other easements indicated, designated and described on the Final Plat of the Latham Subdivision Exemption recorded in the office of the Garfield County Clerk and Recorder, at Reception No. _____ _ The term of the easements herein granted shall be perpetual. III MAINTENANCE OF ROAD EASEMENT INCLUDING NOXIOUS WEED CONTROL The costs of repair, maintenance, clearing, trash removal, snow plowing, noxious weed management/eradication and other expenses of upkeep and preservation of the road easement shall be the sole responsibility of the owners of Lot 1, Lot 2, Lot 3, and Lot 4, Latham Subdivision Exemption, and such 1~osts shall be shared by the owners of the respective Lots, one-quarter (1/4) to Lot 1, one-quarter (1/4) tb Lot 2, one-quarter (1/4) to Lot 3, and one-quarter (1/4) to Lot 4. Routine repairs, clearing, trash removal, snow plowing and noxious weed management/eradication will be conducted from time to time, as deemed necessary by the Lot owners. Nothing in this Declaration shall be construed to give a Lot owner any rights concerning easements which do net benefit said owner's Lot, nor to obligate a Lot owner to pay costs associated with easements which do not benefit said owner's Lot. IV ENFORCEMENT This Declaration and the terms, conditions and provisions hereof may be enforced by the owner of any of the Lots, their successors and assigns, and in the event legal proceedings are brought against any party for the purpose of'such enforcement, the prevailing party or parties shall recover from the non-prevailing party or parties all costs associated therewith, including, but not limited to, reasonable attorney's foes. v EASEMENT SERVICE AREA Use of the road easement shall be restricted to access to and from the respective Lots. The easements may not be used for the parking or storage of vehicles or equipment. The road easement is subject to the dedication of utility easements set forth on the recorded plat of the Latham Subdivision Exemption. Use of the ditch easements are limited to ordinary delivery of irrigation water, together with routine maintenance and cleaning. VI UTILITIES The owners of the Lots have granted on the final plat of the Latham Subdivision Exemption, a perpetual, non-exclusive easement to use the road easement for the purpose of providing utility .. I I I I I I I I I I I I I I I I I I the others, in any Association af · QE purposes of voting matters in the Association, a Member owning more than one t sh ~ e,ntit e--e vote for each Lot owned. The Association shall be governed by a Boa ofthr{e (3) birectors,\ · be chosen by the owners of Lots 2, 3 and 4. The Board shall meet annu for tfte transaction such business as may come before the meeting and, upon the call of two (2) or m , may meet at any other time deemed necessary. All action by the Association shall be taken by majority vote of a quorum of the Board. 2. The Association shall administer the well and related system serving Lot 2, Lot 3, and Lot 4 from the standpoint of its operation, maintenance, repair and replacement and shall include in the Annual Assessment, all costs associated with such described activities. It shall be the duty of the Association to prepare a budget covering the estimated costs, and appropriate reserve fund amounts for administering the well and related system during the coming year. The Association shall cause a copy of the budget, and the estimated amount of the Annual Assessments deriving therefrom and to be levied in equal one-third (1/3) shares against each of Lots 2, 3 and 4 for the following year to be delivered to each Owner of Lots 2, 3 and 4 with notice of the meeting. In addition to the Annual Assessments authorized above, the Board may levy Special Assessments in the event unbudgeted expenses arise related to administering the well and related system. 3. All Annual and Special Assessments, together with interest at the legal or statutory rate, costs, and reasonable attorneys' fees, if any, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Annual or Special Assessment and the aforesaid related costs and expenses, is made. Each such Annual or Special Assessment, together with interest, costs and reasonable attorneys' fees, if any, shall also be the personal obligation of the person who was the Owner of a particular Lot at the time the Assessment was made. All such Annual and Special Assessments shall be due and payable within ten (10) days following the date upon which the Association shall have mailed notice of such Annual or Special Assessment to the Lot Owner obligated to pay the assessment at the address of said Lot Owner as maintained in the Association records. All Annual and Special A~nts shall constitute a lien on each Lot, respectively, prior and superior to all other liens, exc~ ad valorem taxes, bonds, assessments, and other levies which, by law, would be superior thereto, and (ii) the lien or charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for value. Suit to recover a money judgment for unpaid Assessments, interest and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. Any lien created pursuant to the provisions of this Declaration may be </.foreclosed under the laws of the State of Colorado in the same manner as a ~gage. 1 -~""'-~2e Association shall own the subject Well Permit o. 599 , (West Divide ontract #030724KML( ), the well, pump, fittings at the well head, met rs ther existing noh or to be installed at a 1 er time), pumphouse, foot valves, and any pipes or pipelines and anr,y other Lrv~1.1.1w,o;~.,,.,.· -cu jointly used and the water to be diverted by said well system for provid' ~, domestic water for all permitted uses on said Lot 2, Lot 3, and Lot 4. J . \ ,- 5. The owner of Lot 1 shall own the well and related st~~s constritc~~d undef/ /, . / Colorado Division of Water Resources Well Permit No. 2522)2. ..>f'./ , ~ 1</ 1 vr \,\~ I Vf 2 ' /y) I I I I I I I I I I I I I I I I I 7 6. No owners of the Lots are deemed 1c:rhave any ownership right in and to any pipe, pipeline or other structure used or required solely/by the owner of another of the Lots which l may utili~e any l?P_£ion of the wat~r fl?':ing from thi~,JVater wel~ and its structures. This D_ecl~atio_n -jf--_does-not_ mte~-relate to such m~ividually ow~~tl o: used nghts or structures. Nothmg m this 1 Declaration shall be construed to give any partJV·any nghts to such non-shared property of other parties nor to obl~ate any party to pay any cofs associated with non-shared structures. _,.~---···";;~1;:~-D. . T\le i:\~~?ciation s~ai{ tak~ ;lT:)J;Ction necessary to promote pro (~o~struct!QD);ompleticm a~d f~iiCtio~ing and use oftlie water system ser~ing Lot 2: L t 3, and Lot ·4':--..... .. 4 m such manner as to provide an optimum water supply on demand at all times possibl based upon ~-· . i the natural availability of water. The owners of Lots 2, 3 and 4 shall not waste water and n eavor . to use no more than their respective shares of the available water. At this time no indivi ua r __ _ meters must be installed. If at any time after the date hereof, any party requires that meters be installed, then each of the parties shall install meters at the individual expense of each party. Waste or over-use shall be deemed to be a material breach for which the Association may seek remedy at law or equity for damages or for injunctive relief, or both. Use from the well shall be as limited by the permit. Unless otherwise agreed by each owner of Lot 2, Lot 3 and Lot 4, no owner of one of said Lots shall use more than one-third (1/3) of the water legally allocated to the well. In the event the water physically available from the well is less than the legally available amount, then each owner of Lot 2, Lot 3 and Lot 4 shall proportionately reduce the consumption of same to one-third (1/3) the amount actually available. In no event shall the well be pumped at a rate exceeding fifteen ( 15) gallons per minute. Any household use of the well water must provide for return flow through an individual disposal system of the non-evaporative type, returning the water to the watershed in which the well is located. -~-. {!) _ Declarf!:gts .. ~l?:a.:!L)?e _ _r~sp~n~t~le_ for tht! initial c9_st <?f C()J:?c~!!l1<:ti!}g .. t~~.,~~!.~ ... system serv~}]:gJoJ.2,L.oU .. and Lot 4, including the well, the pump, pump house, water_stQi:etge tank -~ofailea~Ti )00 gallons capacity, and any jointly used pipe lines. (Excepting the individual storage tanks on Lots 2, 3 and 4 as identified below). Following the initial construction, the actual and continuing costs of operation, maintenance, construction, extension, upgrading, cleaning, repairing and all other work required on shared components of this water systel!}i to cause the water at the well to become and remain available to deliver water to the partie~ shall be paid by the Association through Assessments of the members. This Declaration shall relate only to costs incurred after the date hereof. Electrical and other charges for the operation. of the \\>'~11 shall be paid by the Association ·through Assessments of the members. 9. The owner of Lot 1 shall be solely responsible for all costs associated with constructing and maintaining the well system serving Lot 1 only, including the well, the pump, pump house and any pipelines or related structures which serve Lot 1 only. 10. The owners of Lot 2, Lot 3 and Lot 4 shall install, at their sole expense, a holding tank of at least 1, 000 gallons with float shut off on their respective lots for incorporation into the system. 3 1t-~~ I I 1 I I I I I I I I I I I I I 11. In the event an owner fails to pay the proportionate share of any amount due within ten ( 10) days after presentment, the Association shall be entitled to pursue any remedy available at law or in equity for a breach. The Court, in its discretion, may award to the prevailing party Court costs and attorney's fees incurred. In addition to any other remedy, the Association may cut off water from the system to any Lot Owner who fails to timely pay an Assessment. ~,.'J~,,- 12. Declarants hereby grant and dedicate a perm~no~;;e easement across that portion of said Lots 2, 3 and 4, designated as "Centerli ater Easement" on the · final plat of the Latham Subdivision Exemption, as necessary ands ~for this Declaration to be performed for the benefit of the respective owners, as users of the shared well, pump and common pipeline and treatment system and structures, @.~.~!s,() graJl!s a non-exclusiye easement for non-s~~E~~ • .9Lin,djsi,4l1£:tlpipeli11~s c.onveying wate.r to the respective Lots over and across said ~-t:·asement. 13. Each party agrees to not interfere at any time with the proper use by any other party of its interest in any water structure and shall indemnify and hold harmless all other parties and users from any loss or damage or injury caused by the acts of said indemnifying party. 14. The term hereof shall be perpetual. 15. .Ibi§.J2~.Stlm:siti9P, Jh~ GOY~gants contained herein and the ~.!ls.emepJs graqt~c1 herein shall run with the title to those real properties described as Lot 1, Lot 2, Lot 3: and Lot 4 -railiam Subdivision Exemption anci shall be binding upon and inure to the benefit of the Dedarants -~11nd their successors injnt~rest anci ownership of Lot 1, Lot 2, Lot 3 and Lot 4, Latham Subdivision '"""Exemption, and to any person or entity having any right, title or interest in either of said Lots, or any part thereof, their heirs, personal representatives, successors and assigns. 16. The laws of the State of Colorado shall govern the validity, effect and construction of this Declaration. 17. This Declaration may not be modified in any manner except by an instrument in writing signed by the owners of each of Lot. IN WITNESS WHEREOF, the parties have signed this Declaration on the dates following their respective signatures. MARILYN K. LATHAM Date KENNETH L. LATHAM Date 4 I I I I I I I I I I I I I I I I I I DECLARATION OF PROTECTIVE COVENANTS LATHAM SUBDIVISION EXEMPTION Garfield County, Colorado THIS DECLARATION OF COVENANTS is made and entered into by KENNETH L. LATHAM and MARILYN K. LATHAM whose address is 1985 County Road 293, Rifle, Colorado 81650 on the day and year hereinafter set forth. WITNESS ETH: The undersigned, owner in fee of that real property described as Lot 1, Lot 2, Lot 3 and Lot 4, Latham Subdivision Exemption, Garfield County, Colorado, desire to subject and to place upon said real property certain covenants, conditions and restrictions set forth herein, for the purpose of protecting the value and desirability of said property, for purpose of furthering the development of the property and in order to comply with conditions of approval of Garfield County for the Latham Subdivision Exemption. NOW, THEREFORE, THE UNDERSIGNED hereby declare that Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption, shall be held, sold and conveyed subject to the following covenants and conditions: ARTICLE 1 Pets Not more than one dog of any age or breed shall be kept upon a lot at any time. When outside, all dogs and other pets shall be leashed or restrained within an enclosure. In the event this covenant is violated, the owner in the lot not in violation may take such action as is reasonably necessary to correct the violation, including injunctive relief for the removal of any pets creating a violation of this covenant. ARTICLE2 Fireplaces No open hearth, solid-fuel fireplaces will be allowed on any of the lots. One (1) new solid- fuel burning stove, as defined by C.R.S. 25-7-401, et seq., and regulations promulgated thereunder, shall be permitted in a dwelling unit. Dwelling units shall be permitted an unrestricted number of natural gas or propane burning stoves and appliances. ARTICLE3 Lighting All exterior lighting on any lot shall be the minimum reasonably necessary for the safe use of the premises, and to the extent possible, all exterior lighting shall be directed toward the interior of the respective lots, except when absolutely necessary to provide for safety lighting on the premises. I I I I I I I I I I I I I I DECLARATION OF PRIVATE ROADWAY I EASEMENT AND MAINTENANCE OBLIGATIONS This Declaration is made this __ day of , 2004, by KENNETH L. LA THAM and MARILYN K. LA THAM whose address is 1985 County Road 293, Rifle, Colorado 81650, owners in fee of those real properties described as Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption, Garfield County, Colorado. I RECITALS The Declarants are the owners of Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption, Garfield County, Colorado and, by this Declaration, intend to grant and dedicate joint and common rights to the use of a private driveway serving the Lots, dedicate other easements for the benefit of the Lots, and impose on the Lots, as covenants running with the land, the obligation to jointly maintain the driveway. II GRANT OF EASEMENTS The Declarants hereby grant and dedicate unto the owners of Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption, Garfield County, Colorado, their heirs, successors and assigns: a 25' non-exclusive easement upon, over and across that portion of said Lots, designated as the "25' Access Easement" on the final plat of the Latham Subdivision Exemption recorded in th~fhce ~£the Garheld County Clerk and Recorder, at Reception No. , for use by the owners of the respective Lots, their successors, assigns, agents, employees, tenants, guests and invitees, for a private access road, and utility purposes, subject to the terms, conditions and provisions hereinafter set forth; a 1 O' easement for utilities over and across that portion of said Lots, designated as "1 O' Utility §.sement" and "Overhead Powerline" on the final plat of the Latham Subdivision Exemphon, recorded in the office of the Garfield County Clerk and Recorder, at Reception No. , for the benefit of the respective lots; a 1 O' non-exclusive easement, over and across, that portion of said Lots, designated as ",£'.enterline 10' Water Easement" on the final plat of the Latham Subdivision Exemption, recorded in the office of the Garfield County Clerk and Recorder, at Reception No. _______ ,for joint use of the shared well system as more fully set forth in the Water Well Community Sharing and Maintenance Agreement of even date herewith; a 1 O' non-exclusive easement u on over and across, that portion of said Lots for the irrigation ditch laterals an pipes existing and in place; I I I I I I I I I I I I I I I I I I e. all other easements indicated, designated and described on the Final Plat of the Latham Subdivision Exemption recorded in the office of the Garfield County Clerk and Recorder, at Reception No. ______ _ The term of the easements herein granted shall be perpetual. III MAINTENANCE OF ROAD EASEMENT INCLUDING NOXIOUS WEED CONTROL The costs of repair, maintenance, clearing, trash removal, snow plowing, noxious weed management/eradication and other expenses of upkeep and preservation of the road easement shall be the sole responsibility of the owners of Lot 1, Lot 2, Lot 3, and Lot 4, Latham Subdivision Exemption, and such costs shall be shared by the owners of the respective Lots, one-quarter (1/4) to Lot 1, one-quarter (114) to Lot 2, one-quarter (1/4) to Lot 3, and one-quarter (1/4) to Lot 4. Routine repairs, clearing, trash removal, snow plowing and noxious weed management/eradication will be conducted from time to time, as deemed necessary by the Lot owners. Nothing in this Declaration shall be construed to give a Lot owner any rights concerning easements which do not benefit said owner's Lot, nor to obligate a Lot owner to pay costs associated with easements which do not benefit said owner's Lot. IV ENFORCEMENT This Declaration and the terms, conditions and provisions hereof may be enforced by the owner of any of the Lots, their successors and assigns, and in the event legal proceedings are brought against any party for the purpose of such enforcement, the prevailing party or parties shall recover from the non-prevailing party or parties all costs associated therewith, including, but not limited to, reasonable attorney's fees. v EASEMENT SERVICE AREA Use of the road easement shall be restricted to access to and from the respective Lots. The easements may not be used for the parking or storage of vehicles or equipment. The road easement is subject to the dedication of utility easements set forth on the recorded plat of the Latham Subdivision Exemption. Use of the ditch easements are limited to ordinary delivery of irrigation water, together with routine maintenance and cleaning. VI UTILITIES The owners of the Lots have granted on the final plat of the Latham Subdivision Exemption, a perpetual, non-exclusive easement to use the road easement for the purpose of providing utility 1· I I I I I I I I I I I I I I I I I I ~;=~ service to the Lots or for the repair, maintenance, removal or replacement of said utilities. All instrumentalities, lines, or facilities placed in the road easement shall be maintained in a safe condition by the respective utility company or governmental agency. No grantee of a utility easement under the final plat shall in the use, construction, reconstruction, operation, maintenance, or repair of any utility in any way unreasonably obstruct or delay the use of the roadway easement granted herein. VII SPECIAL USES Under no circumstances shall road access be denied to or from any Lots over and across the road easement for emergency vehicles, maintenance equipment, and government officials while on official business. VIII SUBSEQUENT OWNERS The easements granted herein are appurtenant to the respective Lots in the Latham Subdivision Exemption and such easements may not be transferred, assigned or conveyed apart or separately from the respective Lots which benefit from the easements. All provisions of this agreement, including all benefits and burdens, shall run with the respective Lots subject hereto and shall be binding upon and shall inure to the benefit of the heirs, assigns, successors and personal representatives of the Declarants, subject to the provisions hereof. IN WITNESS WHEREOF, the parties have signed this agreement on the dates following their respective signatures. KENNETH L. LATHAM Date MARILYN K. LATHAM Date ST A TE OF COLORADO ) ) SS. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me on this day of _______ , 2004, by KENNETH L. LA THAM and MARILYN K. LA THAM . Witness my hand and official seal. My commission expires: ______ _ Notary Public I I STUVER, LEMOINE & BURWELL, P.C. ATTORNEYS AT LAW 120 WEST THIRD STREET P. 0. BOX 907 RIFLE, COLORADO 81650 I THOMAS w. STUVER DANIEL D. LEMOINE I BARBARA c. BURWELL TELEPHONE 970 -625-1667 FAX 970 -625-4446 I I I I I I I I I I I I I I I June 14, 2004 Fred Jarman, Senior Planner Garfield County Building & Planning Dept. 108 Eighth Street, Suite 201 Glenwood Springs, CO 81601 RE: LATHAM SUBDIVISION EXEMPTION Dear Fred: This letter is in response to paragraph 9 of your March 1, 2004 letter which requested an opinion as to whether the easement deed recorded in Book 1199 at Page 748 granted an exclusive or non- exclusive easement. Unless the grant conveying an easement specifically characterizes the easement as "exclusive," the grantor of the easement retains the right to use the property in common with the grantee. Bergen Ditch and Reservoir Company v. Barnes, 683 P.2d 365 (Colo. Ct. App. 1984). The easement deed about which you have inquired is silent as to whether the easement is exclusive or non-exclusive. As a result, the easement granted is non-exclusive. In addition, the easement deed by its own terms creates a permanent easement for the benefit of the real property owned by the grantees (Arvelda M. Ward, Dale 0. Coombs, Gail S. Coombs, Kenneth L. Latham and Marilyn K. Latham) and its purpose is stated as being to recognize an existing roadway. I hope that this assists your analysis. If you have any other questions, please let me know. Very truly yours, STUVER, LeMOINE & BURWELL, P.C. Daniel D. LeMoine DDL:skl pc: Kenneth and Marilyn Latham •. Current January 2004 APPLICATIONTOAMENDWATERLEASE FROM WEST DIVIDE WATER CONSERVANCY DISTRICT 109 West Fourth Street, P.O. Box 1478, Rifle, Colorado 81650 1. APPLICANT INFORMATION Name: KENNETH L. AND MARILYN K. LATHAM Mailing address: 1985 CR 293, RIFLE, CO 81650 Telephone: (970) 625-2346 Authorized agent:---------------- 2. COURT CASE #'s: Decree Case No. -------- Au gm en tat ion Plan Case No.----------- 3. USE OF WATER •RESIDENTIAL (check applicable boxes) • Ordinary household use Number of dwellings: 3 •Subdivision: No. constructed units: 1 No. vacant Jots: 2 •Home garden/lawn irrigation of 12000 sq. ft. total Method of irrigation: D flood • sprinkler D drip D other • Non-commercial animal watering of 15 animals total • Fire Protection Well Sharing Agreement for multiple ow11er wells must be submitted. D COMMERCIAL (check applicable boxes) Number of units: __ Total sq. ft. of commercial units:. __ _ Description of use:--------------- 0 INDUSTRIAL Description of use:--------------- Evaporation: Maximum water surface to be exposed: ___ _ Description of any use, other than evaporation, and method of diversion, rate of diversion, and annual amount of diversion of any water withdrawn from the pond:---------- OMUNICIPAL Description of use:--------------- 4. SOURCE OF WATER Structure: WELL Structure Name: LATHAM WELL Source: DSurface DStorage •Ground water Current Permit# SC\Cj l ·-£ (ifapplicable) D Direct Pumping: Tributary:. ___________ _ Location: -----------------~ 5. LOCATION OF STRUCTURE GARFIELD NW NW County Quarter/quarter Quarter 11 Contract #030724KML(a) Map#475 Date Activated 7 /24/03 Date Amended 4/15/04 6S 93W 6TH Section Township Range Principal Meridian 890' FROM NORTH LINE; 870' FROM WEST LINE Distance of well from section lines Elevation 5,400 FEET Well location address: 1985 CR293, RIFLE (Attach additional pages for multiple structures) 6. LAND ON WHICH WATER WILL BE USED (Legal description may be provided as an attachment.) SEE A TT ACHED EXHIBIT A Number of acres in tract: 26 Inclusion into the District, at Applicant's expense, may be required. 7. TYPE OF SEWAGE SYSTEM • Septic tank/absorption leach field DCentral system DOther District name: ________________ _ 8. VOLUME OF LEASED WATER NEEDED IN ACRE FEET: 1 (minimum of 1 acre foot) Provide engineering data to support volume of water requested. Commercial, mu11icipal, and industrial users must provide diversion and consumptive data on a monthly basis. A totalizing flow meter with remote readout is required to be installed a11d usage reported to West Divide. Applicant expressly acknowledges it has had tire opportunity to review the District's form Water Allotment Contract and agrees this application is made pursuant and subject to the terms and conditions contained therein. Application Date: cl-~ Z d wi- 1 . ~f{;fak--- Applicant Signature Applicant Signature DATE APPROVED: L/ I, s-1~v WEST DIVIDE WATER CONSERVANCY DISTRICT tJo. 5-25 OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES 818 Centennial Bldg., 1313 Sherman St., Denver, Colorado 80203 (303) 866-3581 WELL PERMIT NUMBER __ __..._59 ..... 9...,.9_1 ___ -....... F __ - UC APPLICANT DIV. 5 WD39 DES. BAS.IN MD Lot KENNETH L & MARILYN K LATHAM 1965 COUNTY ROAD 293 RIFLE, CO 61650- 2 Block: Filing: Subdiv: LA THAM EXEMPTION APPROVED WELL LOCATION GARFIELD COUNTY NW 1/4 NW 1/4 Section 11 Township 6 S Range 93 W Sixth P.M. DISTANCES FROM SECTION LINES 890 Ft. from North Section Line 870 Ft. from West Section Line (970) 625-2346 UTM ~OORDINATES . PERMIT TO CONSTRUCT A WELL Northing: Easting: ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT CONDITIONS OF APPROVAL 1) This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this permit does not assure the appDcant that no injury wlU occur to another vested water right or preclude another owner of a vested water right from seeking relief in a civil court action. 2) 3) 4) The construction of this well shall be in compliance with the Water Well Construction Rules 2·CCR 402-2, unless approval of a variance has been granted by the State Board of Examiners of Water Well Construction and Pump Installation Contractors in accordance with Rule 18. Approved pursuant to CRS 37-90-137(2) for the construction of a well, appropriating ground water tributary to the Colorado River, as an alternate point of diversion to the Avalanche canal and Siphon, on the condition that the well shall be operated only when the West Divide Water Conservancy District's substitute water supply plan, approved by the State Engineer, is In effecl, and when a water allotment contract between the well owner and the West Divide Water Conservancy District for the release of replacement water from Ruedl Reservoir is in effect, or under an approved plan for augmentation. WDWCD contrad #030724KML(a). Upon completion of the new well, the old existing well, permit no. 95997, must be plugged and abandoned in accordance with Rule 16 of the Water Well Construction Rules. A Well Abandonment Report form must be submitted within sixty (60) days of abandonment of the old well. Approved for a change in use, amendment of legal description and replacement of an existing Mii permit no. 95997 (canceled). The issuance of this permit hereby cancels permit no. 95997. 5) Approved as a well on a residential site of 6.63 acre(s) described as lot 2, Latham Subdivision Exemption, Garfield County. Further Identified as 1985 County Road 293, Rifle, CO 81650. 6) The use of ground water from this well ls limited to ordinary household purposes inside one (1) single family dwelling, the irrigation of not more than 17,000 square feet (0.39 of an acre) of home gardens and lawns, and the watering of five (5) head domestic animals. All use of this well win be airtailed unless the water allotment contrad or a plan for augmentation is in effect. This well ls known as Latham Well. 7) The maximum pumping rate of this well shall not exceed 15 GPM. The average annual amount of ground water to be appropriated shall not exceed 1.541 acre-feet (502, 135 gallons). 8) 9) The owner shall mark the well in a conspiaJOUS place with well permit number(s), name of the aquifer, and court case number(s) as appropriate. The owner shall take necessary means and precautions to preserve these markings. 10) This well shall be constructed not more than 200 feet from the location specified on this pennil . 11) A totalizing flow meter must be lnstaHed on this well and maintained In good working order. Pennanent records of au diversions must be maintained by the well owner (recorded at least annually) and submitted to the Division Engineer upon request NOTE: Parcel Identification Number (PIN): 23-2177-112-00-078 NOTE: Assessor Tax Schedule Number: R210432 (totaling 59.93 acres) APPROVED DMW Recei t No. 9501578 State Engineer DATE ISSUED 08-07-2003 By EXPIRATION DATE 08-07-2004 WEST DIVIDE WATER CONSERVANCY DISTRICT WATER USE ESTIMATES APPLICANT: KENNETH L. AND MARILYN K. LA THAM Contract Amount w/ 5% transit Loss = 0.99 acre feet DWELLING UNITS: 3 IRRIGATED AREA (SQ FT): 12000 NO. OF LIVESTOCK: 15 TransH Losss 5.0% ELEVATION (MSL): 5400 10 11 12 Total Diversion In House Irrigation In House Irrigation Livestock Total Contract per Unit C.U. per Diversion Irrigation Diversion In House Diversion Irrigation Diversion & Diversion Total C.U. Amount AF Unit AF ft c.u. ft AF C.U. AF AF C.U. AF C.U. AF AF AF AF JAN 0.029 0.004 0.09 0.01 0.00 0.00 0.02 0.106 0.029 0.030 FEB 0.026 0.004 0.08 0.01 0.00 0.00 0.01 0.096 0.026 0.027 MAR 0.029 0.004 0.09 0.01 0.00 0.00 0.02 0.106 0.029 0.030 APR 0.028 0.004 0.144 0.115 0.08 0.01 0.04 0.03 0.02 0.145 0.059 0.062 MAY 0.029 0.004 0.423 0.338 0.09 0.01 0.12 0.09 0.02 0.229 0.122 0.128 JUN 0.028 0.004 0.589 0.471 0.08 0.01 0.16 0.13 0.02 0.273 0.157 0.165 JUL 0.029 0.004 0.619 0.495 0.09 0.01 0.17 0.14 0.02 0.285 0.165 0.173 AUG 0.029 0.004 0.503 0.402 0.09 0.01 0.14 0.11 0.02 0.252 0.139 0.146 SEP 0.028 0.004 0.355 0.284 0.08 0.01 0.10 0.08 0.02 0.206 0.106 0.111 OCT 0.029 0.004 0.111 0.089 0.09 0.01 0.03 0.02 0.02 0.139 0.053 0.056 NOV 0.028 0.004 0.08 0.01 0.00 0.00 0.02 0.103 0.028 0.029 DEC 0.029 0.004 0.09 0.01 0.00 0.00 0.02 0.106 0.029 0.030 TOTAL 0.336 0.050 2.743 2.194 1.01 0.15 0.76 0.60 0.18 2.046 0.940 0.987 (1) 300 gallons per day per residence (7) Column (3) • irrigated area in acres (2) 15% consumptive use for ISDS systems (8) Column (4) • irrigated area in acres (3) 80% irrigation efficiency for sprinkler systems (9) Livestock use at 11 gallons per head per day (99CW320) (4) Blaney Criddle assessment with Pochop adjustments (10) Column (5) + Column (7) + Column (9) plus 5% transit loss (5) Column (1) • number of dwelling units (11) Column (6) + Column (8) + Column (9) (6) Column (2) • number of dwelling units (12) Column (11) plus transit loss wdwcd water use estimates 10-28-03 4/1/2004 PROPOSED LOT 2 Beginning at the Southeast comer of Lot 2 whence the Northwest 1/16 Corner of Section 11, being a two Inch aluminum cap stamped and In place bears S 00•02 1 37" W 190.88 feet; thence S 77•09•20• W 994.80 feet: thence N 19•09_•57~ E .58.22-· feet; thence N 14! 19 1 35 11 E -158.81 · feet: ~-· thence N 1s•17•03" E 83.27 feet; thence N 13•021 5211 E 161.42 feet; thence N sa• 13•25" E 99.98 feet; thence N os•55•35" W 47 .99 feet; ..) tbence N as•13•57" E 119.52 feet: thence S 71•02•12" E 113.55 feet: thence N 79•37•35" E 85.29 feet; thence S a1•24'29" E 24.69 feet; ·.· thence S 73•19•2s .. E 50.28 feet; thence S 49•52•35" £ 19.90 feet; thence S 25•33'43" E 30.78 feet; thence S 74•33•33" E 360.20 feet; · thence S 00•021 37" W 107.35 f~efi to the point of beginning containing 6.63 acres more or less. PROPOSED LOT 3 Beginning at the Northeast Corner of Lot 3: whence the Northwest 1/16 Corner of Section 11, being a 2 Inch aluminum cap stamped and In place · bears S 00•02•37" W 190.88 feet; thence S 00•02•37" W 532.46 feet: thence N 54•49•32" W 405.47 feet; thence S 25•19•13" W 300.96 feet; fhence N 74•34•32" W 597.23 feet: thence N 19•09•57" E 202.14 feet; thence N 77•09•20" E 994.80 feet; fo fhe point of begrnnrng containing 8.00 acres more or less. PROPOSED LOT 4 Beginning at the West Quarter Corner of Section 11, being a 3 1/ 4 Inch aluminum cap, stamped and In P.lace whence the Northwest Corner of Section 11 bears N oo•oo'OO" E 2626.72 feet; thence N oo•oo'OO" £ 371.60 feet; thence 192.23 feet along the arc of a curve to the right having a radius of 515.72 feat, the chord of which bears N 11•02• 41" E 191.12 feat, thence N 27•5a•20 11 E 135.97 feet; thence 202.95 feet along the arc of a curve to the left having a radfus of 1532.46 feet, the chord of which bears N 24•03•57" E 202.81 feet, thence N 20•16 121 11 E 252.67 feet; thence S 74•34•32" E 597.23 feet: thence S 2s•19'13" W 241.04 feet; thence S 38.58'10" W 925.51 feet; thence S a9•54'14" W 180.64 feet; to the point of beginning containing 11.60 acres more or less. f ~ .•. .~ ··-.J :1 September 1, 2004 Kenny Latham 1985 County Rd 293 Rifle, CO 81650 ATTN: Kenny On March 20, 2004, a well test was conducted on a well at 1985 County Rd. 293. The following information was obtained; Well Depth-------------------------------------128' Casing Size------------------------------------(7 x 5)" Standing water level--------------------------29' 7" Total test time----------------------------------4 Hours Drawdown to ----------------------------------53' 1 O'" Production is ----------------------------------6 GPM This test was conducted with 1/2 Hp pump. (10 gpm) The well recovered back to 29' 9" in 60 Minutes. The production on this well is sufficient for three single family dwellings. If you have any questions please call me, Raun Samuelson at 970-945-6309. Sincerely; Raun E Samuelson Samuelson Pump Co. P.O. Box 297 •Glenwood Springs, CO 81602 • (970) 945-6309 • Fax (970) 947-9448 Water Systems • Sales, Service & Installation ,, DECLARATION OF WATER WELL USE AND MAINTENANCE AND FORMATION OF UNINCORPORATED ASSOCIATION THIS Declaration is made on the date set forth below, by KENNETH L. LATHAM and MARILYN K. LA THAM ("Declarants") whose address is 1985 County Road 293, Rifle, Colorado 81650, owners in fee of those real properties described as Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption, Garfield County, Colorado. WHEREAS, Declarants desire to form an association to own and manage a water well and related structures constructed under Colorado Division of Water Resources Well Permit No. 61039, 5999t(West Divide Contract #030724 KML( a)), and the water to be diverted by said well system for providing domestic water for all permitted uses on said Lot 2, Lot 3, and Lot 4; and WHEREAS, Lot 1 is to be served by its own well constructed under Colorado Division of Water Resources Well Permit No. 252232; WHEREAS, the well and casing and pump serving Lot 2, Lot 3, and Lot 4 shall be utilized by said owners of Lot 2, Lot 3, and Lot 4 as a la~fttl ~ater right; and WHEREAS, the water well and system serving Lot 2, Lot 3, and Lot 4 require continuing maintenance and operation, the costs of which must be borne by the owners and users thereof; and WHEREAS, the well permit for Lot 2, Lot 3, and Lot 4 contemplates perpetual, though not constant, use and operation of the well, pump and the appurtenant structures; and WHEREAS, Declarants desire to create this Declaration for the purpose of clarifying respective rights and duties and establishing easements and procedures for operating the water well serving Lot 2, Lot 3, and Lot 4 and delivering water to the properties of the owners of Lot 2, Lot 3, and Lot 4, and for providing a method for equitably dividing the water derived from operation of the system, and for equitably allocating the shared payment of costs of operation and maintenance of the water well and its pump and other structures by the owners of Lot 2, Lot 3, and Lot 4. NOW THEREFORE, Declarants set forth the following concerning the use and maintenance of the joint well and system serving Lot 2, Lot 3, and Lot 4: 1. Declarants hereby declare themselves to be create-an unincorporated nonprofit association pursuant to the Colorado Uniform Unincorporated Non-Profit Association Act, Colorado Revised Statutes 7-30-101 et seq., known as the LOT 2, 3 AND 4 LATHAM SUBDIVISION WELL SHARING ASSOCIATION (hereafter the "Association"), for purposes of administering the well serving Lot 2, Lot 3, and Lot 4, together with the related structures. The Association shall have all duties, rights and powers provided herein, including the power to enforce the provisions of this Declaration. The owners of record of fee simple title to Lots 2, 3 and 4 shall be Members of the Association. If a Lot is owned by more than one person, all of the persons owning an interest in fee simple title to the Lot shall, in the aggregate, be the Lot Owner thereof and such multiple persons comprising the Lot Owner shall, among themselves, designate one of their number to participate in, and represent the others, in any Association affairs. For purposes of voting matters in the Association, a Member owning more than one Lot shall be entitled to one vote for each Lot owned. The affairs of theAssociation shall be governed by a Board of Directors, consisting of not fewer than three (3) persons, except that there need be only as many Directors as there are Owners otLots. All Directors shall be Owners of Lots and shall be The Association shall be gov emed by a Domd oftln:ee (3) Diteetors,--to--be chosen by the owners of Lots 2, 3 and 4. The Board shall meet annually for the transaction of such business as may come before the meeting and, upon the call of two (2) or more Directors, may meet at any other time deemed necessary. All action by the Association shall be taken by majority vote of a quorum of the Board. 2. The Association shall administer the well and related system serving Lot 2, Lot 3, and Lot 4 from the standpoint of its operation, maintenance, repair and replacement and shall include in the Annual Assessment, all costs associated with such described activities. It shall be the duty of the Association to prepare a budget covering the estimated costs, and appropriate reserve fund amounts for administering the well and related system during the coming year. The Association shall cause a copy of the budget, and the estimated amount of the Annual Assessments deriving therefrom and to be levied in equal one-third (1/3) shares against each of Lots 2, 3 and 4 for the following year to be delivered to each Owner of Lots 2, 3 and 4 with notice of the meeting. In addition to the Annual Assessments authorized above, the Board may levy Special Assessments in the event unbudgeted expenses arise related to administering the well and related system. 3. All Annual and Special Assessments, together with interest at the legal or statutory rate, costs, and reasonable attorneys' fees, if any, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Annual or Special Assessment and the aforesaid related costs and expenses, is made. Each such Annual or Special Assessment, together with interest, costs and reasonable attorneys' fees, if any, shall also be the personal obligation of the person who was the Owner of a particular Lot at the time the Assessment was made. All such Annual and Special Assessments shall be due and payable within ten (10) days following the date upon which the Association shall have mailed notice of such Annual or Special Assessment to the Lot Owner obligated to pay the assessment at the address of said Lot Owner as maintained in the Association records. All Annual and Special Assessments shall constitute a lien on each Lot, respectively, prior and superior to all other liens, except (I) all ad valorem taxes, bonds, assessments, and other levies which, by law, would be superior thereto, and (ii) the lien or charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for value. Suit to recover a money judgment for unpaid Assessments, interest and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. Any lien created pursuant to the provisions of this Declaration may be foreclosed under the laws of the State of Colorado in the same manner as a mortgage. 4. The Association shall own the subject Well Permit No. 61039, 5999+, (West Divide Contract #03 0724 KML( a)), the well, pump, fittings at the well head, meters (whether existing now or to be installed at a later time), pumphouse, foot valves, and any pipes or pipelines and any other structures which are jointly used and the water to be diverted by said well system for providing domestic water for all permitted uses on said Lot 2, Lot 3, and Lot 4. 2 5. The owner of Lot 1 shall own the well and related structures constructed under Colorado Division of Water Resources Well Permit No. 252232. 6. No owners of the Lots are deemed to have any ownership right in and to any pipe, pipeline or other structure used or required solely by the owner of another of the Lots which may utilize any portion of the water flowing from this water well and its structures. This Declaration does not intend to relate to such individually owned or used rights or structures. Nothing in this Declaration shall be construed to give any party any rights to such non-shared property of other parties nor to obligate any party to pay any costs associated with non-shared structures. 7. The Owners shall cooperate with each other at all times and in all matters Association shall take all action necessary to promote the proper construction, completion and functioning and use of the water system serving Lot 2, Lot 3, and Lot 4 in such manner as to provide an optimum water supply on demand at all times possible based upon the natural availability of water. The owners of Lots 2, 3 and 4 shall not waste water and shall to endeavor to use no more than their respective shares of the available water. At this time no individual water meters must be installed. If at any time after the date hereof, any party requires that meters be installed, then each of the parties shall install meters at the individual expense of each party. Waste or over-use shall be deemed to be a material breach for which the Association may seek remedy at law or equity for damages or for injunctive relief, or both. Use from the well shall be as limited by the permit. Unless otherwise agreed by each owner of Lot 2, Lot 3 and Lot 4, no owner of one of said Lots shall use more than one-third (1/3) of the water legally allocated to the well. In the event the water physically available from the well is less than the legally available amount, then each owner of Lot 2, Lot 3 and Lot 4 shall proportionately reduce the consumption of same to one-third (1/3) the amount actually available. In no event shall the well be pumped at a rate exceeding fifteen (15) gallons per minute. Any household use of the well water must provide for return flow through an individual disposal system of the non-evaporative type, returning the water to the watershed in which the well is located. 8. Declarants shall be responsible for the initial cost of constructing the well system serving Lot 2, Lot 3 and Lot 4, including the well, the pump, pump house, water storage tank of at least 1, 700 gallons capacity, and any jointly used pipe lines. (Excepting the individual storage tanks on Lots 2, 3 and 4 as identified below). Following the initial construction, the actual and continuing costs of operation, maintenance, construction, extension, upgrading, cleaning, repairing and all other work required on shared components of this water system to cause the water at the well to become and remain available to deliver water to the parties shall be paid by the Association through Assessments of the members. This Declaration shall relate only to costs incurred after the date hereof. Electrical and other charges for the operation of the well shall be paid by the Association through Assessments of the members. 9. The owner of Lot 1 shall be solely responsible for all costs associated with constructing and maintaining the well system serving Lot 1 only, including the well, the pump, pump house and any pipelines or related structures which serve Lot 1 only. 3 10. The owners of Lot 2, Lot 3 and Lot 4 shall install, at their sole expense, a holding tank of at least 1,000 gallons with float shut off on their respective lots for incorporation into the system. 11. In the event an owner fails to pay the proportionate share of any amount due within ten (10) days after presentment, the Association shall be entitled to pursue any remedy available at law or in equity for a breach. The Court, in its discretion, may award to the prevailing party Court costs and attorney's fees incurred. In addition to any other remedy, the Association may cut off water from the system to any Lot Owner who fails to timely pay an Assessment. 12. Declarants hereby grant and dedicate a permanent, non-exclusive easement across that portion of said Lots 2, 3 and 4, designated as "Centerline 1 O' Water Easement" on the Latham Subdivision Exemption Plat recorded in $.e Garfield County Clerk and Recorder's Office with Reception No. and as attached hereto and incorporated herein as Exhibit A final plat of the Latham Sttbdivision Exemption, as necessary and sufficient for this Declaration to be performed for the benefit of the respective owners, as users of the shared well, pump and common pipeline and treatment system and structures, and also grants a non-exclusive easement for non-shared or individual pipelines conveying water to the respective Lots over and across said easement. 13. Each party agrees to not interfere at any time with the proper use by any other party of its interest in any water structure and shall indemnify and hold harmless all other parties and users from any loss or damage or injury caused by the acts of said indemnifying party. 14. The term hereof shall be perpetual. 15. This Declaration, the covenants contained herein and the easements granted herein shall run with the title to those real properties described as Lot 1, Lot 2, Lot 3, and Lot 4 Latham Subdivision Exemption and shall be binding upon and inure to the benefit of the Declarants and their successors in interest and ownership of Lot 1, Lot 2, Lot 3 and Lot 4, Latham Subdivision Exemption, and to any person or entity having any right, title or interest in either of said Lots, or any part thereof, their heirs, personal representatives, successors and assigns. 16. The laws of the State of Colorado shall govern the validity, effect and construction of this Declaration. 1 7. This Declaration may not be modified in any manner except by an instrument in writing signed by the owners of each of Lot. IN WITNESS WHEREOF, the parties have signed this Declaration on the dates following their respective signatures. KENNETH L. LATHAM Date MARILYN K. LATHAM Date 4 STATE OF COLORADO ) ) SS. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me on this day of _______ , 2004, by KENNETH L. LATHAM and MARILYN K. LATHAM . Witness my hand and official seal. My commission expires: _____ _ Notary Public 5