The URL can be used to link to this page

Browse Search

Home My WebLink About20040710 SURFACE USE AGREEMENT THIS SURFACE USE AGREEMENT (the "Agreement") is made and entered into this 19th day of February, 2004, by and between PATINA OIL & GAS CORPORATION, a Delaware corporation, ("Patina"), 1625 Broadway Suite 2000, Denver, Colorado 80202 and RED BARRON DEVELOPMENT INC., a Colorado corporation ("Developer"), 7507 WCR 39, Ft. Lupton, Colorado 80621. RECITALS A. Developer is the owner or has an option to purchase the surface estate of a tract of land located in the E%SE'/4 of Section 30, Township 2 North, Range 65 West of the 6th P.M., County of Weld, State of Colorado (the "Property") and more specifically depicted on Exhibit"A" attached hereto and made apart hereof. B. The mineral estate in and under the Property is presently subject to valid and subsisting oil and gas leases (the "Leases"), which leasehold interest wells from the surface to the base of the J Sand formation is owned of record by Patina. C. Patina's leasehold rights include, among other things, the right of ingress and egress for the purposes of exploration, development, drilling, re-drilling, testing, completion, re-completion, re-entry, deepening, fracturing, re-fracturing, stimulation, reworking, production and maintenance operations associated with oil and gas and the associated pipelines and production facilities located on the Property. D. Patina currently operates the Hobday #1 well located in the E/2SE/4 of Section 30, Township 2 North, Range 65 West of the 6th P.M., (the "Well") and its associated pipelines located on the Property. E. Developer desires to undertake development of the surface of the Property, including residential housing. F. Patina and Developer enter into this Agreement to provide for the coexistence and joint development of the surface estate and the oil and gas estate of the Property, and to delineate the process with which the parties shall comply with respect to the development of the two estates. NOW, THEREFORE, in consideration of the covenants set forth herein and the mutual benefits to be derived by the parties hereto, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. AREAS RESERVED FOR OIL AND GAS OPERATIONS. 1.1. Oil and Gas Operations. Patina shall have the continued right to deepen, recomplete, fracture, re-fracture, stimulate and rework the Well. In order to provide for such, Developer shall, and does hereby ratify and, to the extent necessary, grant to Patina an easement, to utilize the area depicted and/or described on Exhibit "A" as the "Oil and Gas Operations Areas" for the Well, production facility and access road for such operations. The Oil. and Gas Operations Area shall be deemed to include the area encompassing a one hundred fifty foot (150') radius from the Well, one hundred fifty foot (150') radius from any oil tank or separator and the surface area of the fifteen foot(15') wide access road. EXHIBIT 1 I 2004-0710 `C tas 1.2 Oil and Gas Operations Areas. The Oil and Gas Operations Areas shall be reserved and utilized for the exclusive purpose of any and all oil and gas operations by Patina, including, but not limited to, drilling and production activities, workovers, well deepenings, recompletions, fracturing, drilling of replacement wells, and re-fracturing, among other things. 1.3 Pipeline Easements. Patina shall have the right to construct, operate and maintain pipelines on the Property. In order to provide for such, Developer shall, and does hereby ratify and, to the extent necessary, grant to Patina an easement, measuring thirty feet (30') in width, to utilize the areas depicted and/or described on Exhibit"A" as "Pipeline Easements". 1.4 Limitation on Use of the Property. Except for the Oil and Gas Operations Areas, Pipeline Easements, and access as provided in Section 5, Patina shall not use or occupy any part of the surface of the Property except in the event of an emergency or for necessary incidental and temporary activities. As part of the consideration for this limitation by Patina, of what would otherwise be the right to make reasonable use of any part of the Property in the conduct of their operations, and without limiting the applicability of Sections 13 and 14 below, Patina shall not be obligated to pay, and Developer hereby waives any right to receive, any further surface damage payments, license or use fees, now or in the future, associated with the operations of Patina within the Oil and Gas Operations Areas and Pipeline Easements and access. 1.4.1 Developer shall place no buildings, structures or improvements (including, but not limited to streets, sidewalks, curbs, gutters and fences), detention or retention ponds, irrigation systems, sewage or drainage systems or pathways of any kind within the Oil and Gas Operations Areas or the Pipeline Easements unless agreed to in writing by Patina. Without the prior written consent of Patina, Developer shall not alter or modify the existing grade within the Oil and Gas Operations Areas or Pipeline Easements. 1.4.2 Developer shall place no permanent building, or structures intended for human occupancy or improvements (excluding streets, sidewalks, curbs and gutters) within two hundred (200) feet of the Production Facility as depicted on Exhibit "A". Without prior written consent from Patina, Developer shall not construct or allow the construction of dwellings or structures intended for human occupancy within sixty (60) feet on either side of the Pipeline Easements. 1.5 Waiver of Certain Requirements. Developer waives all setback requirements in Colorado Oil and Gas Conservation Commission ("COGCC") Rule 603, or any successor rule or amendment to the COGCC setback rules, and to any other state or local setback requirements or other requirements or regulations that are or become inconsistent with this Agreement or that would prohibit or interfere with the rights of Patina to explore for and produce the oil and gas in accordance with this Agreement. Developer understands that Patina may cite the waiver in this Section 1.5 in order to obtain a location requirement exception or variance under COGCC rules or from a local jurisdiction. Developer also agrees that it will not object in any forum to the use by Patina of the surface of the Property consistent with this Agreement and that it will also provide Patina with whatever support in writing they may reasonably require to obtain permits from the COGCC or any local jurisdiction. 2. PIPELINE RELOCATION. Patina shall reconstruct the pipeline from the Well to the production facility within the Pipeline Easement. Thereafter, Patina shall remove the abandoned 2 segments of the pipeline. The pipeline will be constructed in accordance with the following terms and conditions: 2.1 Construction of Pipeline. Developer shall complete the field staking for the pipeline and its required depth as provided below after giving written notice to Patina. The field staking will consist of a marker every thirty (30) feet, marking the desired depth of the pipeline. Within ninety (90) days following the completion of the field staking of the pipeline location, Patina will complete the construction of the pipeline along the route field staked by Developer on Exhibit "A". The Relocation Costs recited in Section 4 below are conditioned upon the pipeline being installed to a depth sufficient to result in forty-eight (48) inches below the proposed finished grade of the surface and a depth no greater than six (6) feet below the grade existing at the time of installation. 2.2 Removal of Abandoned Pipelines. On the completion of construction of the new pipeline, Patina will remove those portions of the pipeline that were abandoned. 2.3 Line Crossings. If Developer's surface development of the Property requires the crossing of Patina's pipelines by a sewer line, water line or other utility, Developer shall notify Patina (a) of the date and time of the line crossing (the "Commencement Time"), and (b) when the line crossing has been completed (the "Completion Time"). If in response to Developer' notification, Patina suspends production through the pipeline, then Developer shall pay Patina for each calendar day or part thereof between the Commencement Time and the Completion Time, the sum of$ 350.00 per well per day. Such payments shall be the agreed amount to compensate Patina for its response and any lost or delayed production, and shall be made to Patina within fifteen (15) days of receipt of an invoice from Patina. Any such payments shall be in addition to the payment for lost and/or delayed production contained in the Relocation Costs as defined below. Developer shall maintain a distance of a minimum two (2) feet above or below the pipeline at any such crossings. 3. CONSTRUCTION COORDINATION. Upon commencement by Patina of the construction operations pursuant to Section 2 above, Developer shall cease those operations on the Property that would be likely to interfere with Patina's obligations pursuant to this Agreement. 4. CONSTRUCTION RELOCATION COSTS. Upon execution of this Agreement, or 30 days prior to the date the Developer desires Patina to commence construction, whichever is the later, Developer shall pay Patina the sum of Twenty-six thousand five hundred thirty two ($26,532.00) dollars as consideration and payment in full against the costs of the construction operations described in Section 2 above, including land consulting fees and expenses, and compensation for lost and/or delayed production (the "Relocation Costs"). In the event Developer does not desire that Patina commence construction within ninety (90) days from the date hereof, Patina may, but is not obligated to recalculate the Relocation Costs and the Developer shall then pay the revised amount. 3 5. ACCESS. 5.1 During Developer's development of the surface of the Property and at all times thereafter, Developer shall provide Patina access to the Oil and Gas Operations Areas, Pipeline Easements and currently existing access to the wells and production facilities located adjacent to the Property (the "Alternate Access" as depicted on Exhibit A), though the location of that access may vary from time to time in accordance with the needs and progress of such surface development. 5.2 As Developer constructs paved roads, curbs, gutters and sidewalks to accommodate Developer's infrastructure design, Developer shall continue to provide Patina access to the Oil and Gas Operations Areas, Pipeline Easements and the Alternate Access and shall provide curb cuts thirty (30) feet in width at all access points. The paved roads leading to the access points and the curbs, gutters and sidewalks at the access points shall be reinforced to accommodate a gross vehicle weight of at least 28,000 pounds per axle. Prior to the Developer's alteration of any portion of Patina's existing access on or adjacent to the Property, Developer shall install replacement access roads from the access points at locations and routes that are acceptable to Patina using six inch(6") base course material to a width of fifteen feet(15'). Upon construction of the paved and graveled access roads, Patina shall discontinue the use of its existing access and solely use the access described in this paragraph and shown on Exhibit A, In the event Developer does not construct the access roads as described above, Patina may install and construct such roads at the sole and absolute expense of the Developer. 6. PRODUCTION FACILITIES. Patina shall have the right to locate, relocate, build, repair and maintain oil tanks, separators, dehydrators, compressors and other equipment necessary, appropriate or convenient for the operation and production of the Well only within the Oil and Gas Operations Areas designated for such purpose on Exhibit "A". With respect to the Well and production facilities of Patina, Patina shall install and maintain fences, gates and locks reasonably necessary for the security of the Well and/or production facilities. Such fences, gates and locks shall be installed by Patina at the expense of Developer and shall be of a type and quality customarily used for such purpose. The cost of the fencing, gates and locks are included in the Relocation Costs. 7. LANDSCAPING. Developer may install and maintain ground cover, shrubs and watering systems ("Landscaping") within the Pipeline Easements at its own expense and risk, acknowledging that Patina's normal operations may from time to time disturb or destroy said Landscaping. Developer hereby agrees to install and maintain said Landscaping so as not to impede Patina's access and/or operations. Developer hereby accepts all responsibility for the cost of installation, repair and/or replacement of said Landscaping within the Pipeline Easements and Patina shall not be responsible for damage to said Landscaping resulting from its future access or operations. Prior to commencing installation of the Landscaping, Developer shall consult with and obtain written approval from Patina to ensure that there are no adverse impacts upon Patina's ability to perform future operations, which consent shall not be unreasonably withheld. Patina's consent to the installation of such Landscaping shall not constitute nor be construed as a waiver of Patina's rights pursuant to this Section 7. 8. RECORDING Within fifteen (15) days of the Effective Date, Developer shall record a copy of this Agreement in the real property records of Weld County, Colorado. 4 9. NOTICES TO HOMEOWNERS AND BUILDERS. Within thirty (30) days of the date the Developer records the Agreement pursuant to Section 8 above, Patina shall record in the real property records of Weld County, Colorado a "Notice of Oil and Gas Operations" substantially in the form attached hereto as Exhibit "B" that conspicuously states that: 9.1 there may be ongoing oil and gas operations in the Oil and Gas Operations Areas and Pipeline Easements; 9.2 Purchasers of all or a portion of the Property, as successors in interest to Developer, will be acquiring a proportionate interest in Developer's rights and obligations under this Agreement and will be subject to the waivers contained in this Agreement which, with respect to operations within the Oil and Gas Operations Areas and Pipeline Easements and subject to Section 1.5 above, shall constitute a waiver of the setback requirements provided in Commission Rule 603.e.(6) or any successor or amended state setback rule and also loca.l setback requirements, among other obligations. 10. PRELIMINARY AND FINAL PLATS. All Preliminary and Final Plats prepared by the Developer as part of the subdivision approval process for the Property shall include and indicate the Well, Oil and Gas Operations Areas, Pipeline Easements, and access roads. Within fifteen (15) days of approval by the Weld County Commissioners of a Final Plat, Developer shall record a copy of the Final Plat in the real property records of Weld County, Colorado. 11. FUTURE OPERATIONS. Patina shall make all reasonable efforts to pursue any drilling, re-drilling, reworking and/or recompletion operations in a diligent manner so as to minimize the total time period on location and to avoid rig relocations or startup delays during the course of drilling. Developer waives and shall not assert any right to require that wellhead or production equipment be located in conformance with setback requirements different from those agreed to in this Agreement (including but not limited to those concerning any "high density" rules of the COGCC). 12. GOVERNMENTAL PROCEEDINGS. 12.1 Developer shall not, directly or indirectly, oppose or encourage opposition to Patina in any agency, administrative or other governmental proceedings, including but not limited to the COGCC, the County of Weld or other governing body proceedings, related to the operations of Patina on the Property, including but not limited to drilling and production activities, workovers, well deepenings, recompletions, fracturing, replacement wells and re- fracturing, provided that the position of Patina in such proceedings is not materially inconsistent with this Agreement. 12.2 Patina shall not directly or indirectly oppose or encourage opposition to Developer in any agency, administrative, or other governing body proceedings, relating to Developer's operations on and development of the Property, including residential and associated development, provided that Developer's position in such proceedings is not materially inconsistent with this Agreement. 5 13. LIMITATION OF LIABILITY,RELEASE AND INDEMNITY. 13.1 NO PARTY SHALL BE LIABLE FOR, OR BE REQUIRED TO PAY FOR, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES TO ANY OTHER PARTY FOR ACTIVITIES UNDERTAKEN WITHIN THE SCOPE OF THIS AGREEMENT. 13.2 Each party shall be and remain responsible for all liability for losses, claims, damages, demands, suits, causes of action, fines, penalties, expenses and liabilities, including without limitation attorneys' fees and other costs associated therewith (all of the aforesaid herein referred to collectively as "Claims"), arising out of or connected with each such party's ownership or operations, including each such parties' employees, agents, contractors, sub- contractors or other invitees on the Property, no matter when asserted, subject to applicable statutes of limitations. Each such party shall release, defend, indemnify and hold the other parties, their officers, directors, employees, successors and assigns, harmless against all such Claims that arise from its negligence. This provision does not, and shall not be construed to, create any rights in persons or entities not a party to this Agreement, nor does it create any separate rights in parties to this Agreement other than the right to be indemnified for Claims as provided herein. 14. EXCLUSION FROM INDEMNITIES. The indemnities of any party herein shall not cover or include any amounts, which the indemnified party may recoup from any third party, or that for which the indemnified party is reimbursed by any third party. The indemnities in this Agreement shall not relieve any party from any obligations to third parties. 15. NOTICE OF CLAIM FOR INDEMNIFICATION. If a Claim is asserted against a party for which another party would be liable under the provisions of Section 13 above, it is a condition precedent to the indemnifying party's obligations hereunder that the indemnified party give the indemnifying party written notice of such Claim setting forth all particulars of the Claim, as known by the indemnified party, including a copy of the Claim (if it is a written Claim). The indemnified party shall make a good faith effort to notify the indemnifying party within thirty (30) days of receipt of a Claim and shall affect such notice in all events within such time as will allow the indemnifying party to defend against such Claim. 16. REPRESENTATIONS. Each party represents that it has the full right and authority to enter into this Agreement and Developer specifically confirms its capacity to validly execute the rights of way and easements provided for herein. Patina represents that it owns the oil and gas leasehold interest in the Leases as set forth in Recital B under the Property. Patina does not represent and specifically asserts that they do not have the right to bind any other oil and gas leasehold interest owner, mineral owner, lessee or assignee for the Property. 17. SUCCESSORS. The terms, covenants and conditions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, devises, executors, administrators, successors and assigns. This Agreement and all of the covenants herein shall be covenants running with the land. 18. NOTICES. Any notice or other communication required or permitted under this Agreement shall be sufficient if deposited in the U.S. Mail, postage prepaid, with a copy sent via facsimile, addressed to each of the following: 6 If to Patina Oil & Gas Corporation: Patina Oil & Gas Corporation 1625 Broadway, Suite 2000 Denver, Colorado 80202 Attention: Land Department FAX (303) 595-7410 If to Developer: Red Barron Development, Inc. 7507 WCR 39 Ft. Lupton, CO 80621 Attention: Ms. Marilyn Taylor PHONE & FAX: (303) 536-0380 e-mail : mtpval @aol.com Any party may, by written notice so delivered to the other party, change the address, fax number or individual to which delivery shall thereafter be made. 19. SURFACE DAMAGES. In consideration of the parties' respective rights, obligations and benefits, as outlined herein, this Agreement shall constitute a surface use or surface damage agreement provided for under the COGCC's Rules and Regulations or under any oil and gas leases covering the Property. 20. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to its conflict of laws provisions. 21. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding among the Parties regarding the matters addressed herein, and supersedes any previous communications, representations or agreement, whether oral or written. This Agreement shall not be amended, except by written document signed by all parties. 22. HEADINGS. The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 23. TIME OF ESSENCE. Time is of the essence in this Agreement. 24. NON-WAIVER. Waiver by either party or of the failure of any party to insist upon the strict performance of any provision of this Agreement shall not constitute a waiver of the right or prevent any such party from requiring the strict performance of any provision in the future. 25. SEVERABILITY. Any covenant, condition or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this Agreement, but such deletion shall in no way affect any other covenant, condition or provision herein contained so long as such deletion does not materially prejudice a party in its rights and obligations contained in valid covenants, conditions or provisions. In the event that any part of this Agreement would otherwise be unenforceable or in conflict with applicable laws due to the term or period for which such part is in effect, the term or period for which such part of this 7 Agreement shall be in effect shall be limited to the longest period allowable which does not cause such part to be unenforceable or in conflict with applicable laws. 26. NO JOINT VENTURE. This Agreement is not intended to, nor shall it be interpreted to create a joint venture, partnership or any other relationship among the parties. 27. EFFECTIVE DATE. This Agreement shall become effective (the "Effective Date") upon the execution of this Agreement by all parties hereto. 28. COUNTERPARTS. This Agreement may be executed by facsimile and in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute but one and the same instrument. The parties have executed this Agreement as of the day and year first above written. PATINA OIL & GAS CORPORATION - By: � avid W. S' e, Vice President RED BARRON DEVELOPMENT QQ INC. nn b�By: Ys e cZtarl /2.109t1M Name: au i 7«,, Title: 6Z€.42-X,- ACKNOWLEDGMENTS STATE OF COLORADO ) ) ss. CITY& COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this 19th day, , 2004, by David W. Siple, Vice President for Patina Oil & Gas Corporation, a D '1`q'cda�ieicorf3nz , on behalf of that corporation. C•' U .4, Witness my hand and official seal. Notary Public o My Commission expires: 21 p/zoo 9r '�gL ' - FOF co. .c 8 STATE OF COLORADO ) ) ss. COUNTY OF �ti��L� ) The foregoing instrument was acknowledged before me this ,9O1r day of $hcct i , 200 tom ( j, by C, A klr p('oo',A , as Ak C,CLA ()con\-for Red Barron Developmehi Inc., a Colorado corporation,-bn behalf of that corporation. J Witness my hand and official seal. (q\v jheQY-1(\ 01\ Not bli My Commission expires: \-14- ,9 j + �cP�01ARyst2 • d P �TF0 F•00*OP 9 C I 8 t&R—� 060U.-Fit' ��iRi l66• 1 I9 F11L:1 Pee 4 ILI"I — - — - -500'00'00.E 2843.60'— - _ 0 �-` — 363.17' 644.21• LOT 1 7L a7a7 .. LOT 6 I w [. y 195940 SO.FT. NI�I UAI 195939 SOFT. 91 un U 4,50 ACRES +/- . w 4,50 ACRES +/- $ 000: Z 3W LL ~ 300'00'00.11 663,17' I 600'00'00'N 671.63' J 01 i� JQ '!7p a t� —� LOT2 _ _ 7 -S —'vl W O 195940 SO.FT. q@9 LOT 7 II 2teaWCIIR i 4.50 ACRES +/- N . p Q p I 195941 SO.FT, yR a Ir. Q a I` I i 4,50 ACRES +/- II d F a © — 494:01147.6.-6a.041 ._. — 2s•0 Mtn.. - —I W W ' I LOT 3 / \ LOT 6 II Q \ 195939 SOFT. �Ty l� I SB5940 60.FT. // C' ' �' ' 4.F0 ACRES +/- 5 O p x a % 4.50 ACRES +/- // i 9kaki. 46 MEW-4\ � N I S L0T5 C.-4 p„ II A �� , LOT 4 I'i 195940 90.FT. '\ I CO 02 I'� C/1 a ".J.� 195941 SOFT. , 4.50 ACRES +/- \\e6,e41 j 11 Q A W : W W / 4.60 ACRES +/- i \ _ --' 2 p ry ��\ CO r eu ei g(,� Q a Z p I� _ N 00 2 W &-I \ t/ 'iv'4 r (So I 0 0 el W ,.-.- Two u� Icmv M Q �` ME 6 Z /'_ rn C 07 ILI Z /� �" IN Q d W J a < a O I ( ( ( Exhibit"B" Attached to and made a part of that certain Agreement dated February 19th, 2004, by and between Patina Oil & Gas Corporation and Red Barron Development Inc. NOTICE OF OIL AND GAS OPERATIONS PLEASE TAKE NOTICE THAT PATINA OIL & GAS CORPORATION, a Delaware corporation, with an address of 1625 Broadway, Suite 2000, Denver, Colorado 80202, ("Patina") and RED BARRON DEVELOPMENT INC., a Colorado corporation, with an address of 7507 WCR 39, Ft. Lupton, Colorado 80621 ("Developer"), have entered into a Surface Use Agreement (the "Agreement") dated February 19th, 2004 covering the following described lands (the"Property"): Township 2 North, Range 65 West, 6th P.M. . Section 30: E/2SE/4 Weld County, Colorado NOTICE IS HEREBY PROVIDED to all interested parties, including surface owners, their heirs, assignees and successors in interest, that pursuant to the Agreement, Patina, its agents, employees, designees, co-owners, successors and assigns have the right to use and access the surface of the Oil and Gas Operations Area and Pipeline Easements as defined in the Agreement for the purpose of, among other things, DRILLING, DEEPENING, WORKOVER, COMPLETION OR RECOMPLETION OPERATIONS OR CONTINUING ACTIVITIES FOR THE EXPLORATION, PRODUCTION OR TRANSPORTATION OF OIL, GAS, OR OTHER HYDROCARBONS OR PRODUCTS ASSOCIATED WITH THE FOREGOING INCLUDING, BUT NOT LIMITED TO, SURFACE USE, INGRESS TO, EGRESS FROM, AND CONSTRUCTION, MAINTENANCE, REPAIR, REPLACEMENT, AND MONITORING OF WELLS, LOCATIONS, EQUIPMENT, MUD AND RESERVE PITS, WELLHEAD EQUIPMENT, SEPARATORS, TANK BATTERIES, PIPELINES, GATHERING LINES, FLOWLINES, PIPELINE INTERCONNECTIONS, AND ANY AND ALL OTHER REASONABLE OR CUSTOMARY USES OF LAND RELATED TO SAID OPERATIONS OR ACTIVITIES. FURTHERMORE, purchasers of all or any portion of the Property, as successors to Developer, acquire a proportionate interest in Developer's rights and obligations under the Agreement and are subject to the waivers contained in the Agreement, including the waiver of all setback requirements in Colorado Oil and Gas Conservation Commission ("COGCC") Rule 603, or any successor rule or amendment to the COGCC setback rules, and to any other state or local setback requirements or other requirements or regulations that are or become inconsistent with the Agreement or that would prohibit or interfere with the rights of the Oil Companies to explore for and produce oil and gas in accordance with the Agreement. The Agreement has been recorded in the real property records of Weld County, Colorado on , 2004 at Reception Number This notice may be executed by facsimile and in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute but one and the same instrument. PATINA OIL & GAS CORPORATION David W. Siple, Vice President ACKNOWLEDGMENTS STATE OF COLORADO ) ) ss. CITY& COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this day of 2004, by David W. Siple, Vice President for Patina Oil & Gas Corporation, a Delaware corporation, on behalf of that corporation. Witness my hand and official seal. Notary Public My Commission expires: February 9, 2005 FEB. 19.2004 4:02PM KERR_MCGEE N0.458 P.2/2 KERB-MCG►EE ROCKY MOUNTAIN CORPORATION 109E BROADWAY,SUITE 3800 • DFNVFR,COLORADO B0202 February 19, 2004 PRONE: 3o3.2eeaaoo FAX: 903.388•3801 Delivered via Facsimile Ms. Sheri Locicman Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, Colorado 80631 Re: Red Baron Estates Case Number PZ-103 Township 1 North,Ranee 65 West Section 6:E/2E/2NE/4 Section 30: part of the SE/4 Section 31:part of the E/2E/2 Weld County, Colorado Dear Ms.Lockman: This letter is to inform you that Ken-McGee Rocky Mountain Corporation ("KMG")has reviewed the captioned development proposal and finds that there are no conflicts with respect to KMG's interest in the property. If you have any questions, please contact me at 720-264-2627. Very ttuly yours, (Kerr�McGee Rocky Mountain Corporation Cl—uistopher J. Grene�— - Landman cc:Marilyn Taylor—Red Baron Estates r PIPELINE RELOCATION AGREEMENT THIS PIPELINE RELOCATION AGREEMENT ("Agreement") is made and entered into this A day of February, 2004 (the "Effective Date") by and between Red Baron Development, LLC, whose address is 2634 S. Lima Street, Aurora, CO 80014 ("Red Baron Development, LLC") and DUKE ENERGY FIELD SERVICES, LP, whose street address is 1324 North 7TH Avenue, Greeley, Colorado 80631 ("DUKE"). WHEREAS, Red Baron Development, LLC owns that certain parcel of the real property situated in Weld County, Colorado, as more particularly described in Exhibit A attached hereto and by this reference made a part hereof (the "Property"); and WHEREAS, DUKE is the owner in interest to that certain Right of Way Easement recorded under Reception No. 2730098 with the Clerk and Recorder of the County of Weld, State of Colorado ("Right of Way No. 1"); and WHEREAS, Red Baron Development, LLC is desirous of relocating a portion of the existing natural gas pipeline and abandoning in part a portion of the natural gas pipeline located in the easement described in Right of Way No 1 and further diagrammed in Exhibit B (the "General Site Map") so that such pipeline will not cross or affect portions of the Property and other parcels of land owned by Red Baron Development, LLC in the development known as Red Baron Estates; and WHEREAS, in entering into this Agreement with DUKE, Red Baron Development LLC agrees, among other things, to pay the costs associated with the relocation of the pipelines (including those attributable to the Property) on and subject to the terms and conditions set forth in this Agreement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Red Baron Development, LLC and DUKE agree as follows: 1. Route of New Easement. DUKE hereby agrees to the partial relocation and partial removal of that portion of its existing pipeline and easement (under Right of Way No. 1) which is currently located on the Property pursuant to the terms and conditions set forth in this Agreement. The portion of the existing pipeline and easement on the Property under Right of Way No. 1 which is to be relocated, and the locations for the installation of the new pipeline and new easement on the Property (the "New Easement"), are generally depicted on the General Site Plan attached hereto as Exhibit B. Red Baron Development, LLC shall cause a licensed surveyor to stake on the ground the proposed boundaries and centerlines of the New Easement, it being the intent of the parties that the pipeline shall be relocated along the centerline so staked. Red Baron Development, LLC shall further cause a contractor, whose selection must first be approved by DUKE (which approval shall not be unreasonably withheld), to grade the areas of the New Easement within one (1') foot of grade level prior to the • a Page 1 of 6 relocating of the pipeline. Survey staking will indicate any cut or fill of the earth along the entire route of the relocated pipeline. Survey staking will mark street and roadway crossings to allow for additional deepening and/or strengthening of the relocated pipeline. Prior to pipeline relocation, the preliminary survey, upon which the staking is based, shall be submitted to DUKE for its approval and shall be modified and resubmitted to satisfy any reasonable objections that DUKE may raise. During the relocation of the pipeline, Red Baron Development, LLC shall have a representative available to inspect daily the relocation and will "sign-off' as to the accuracy of the pipeline being relocated for the vertical and horizontal accuracy of the pipeline prior to the filling in of the trench. This "sign-off" will release DUKE for any future liability due to the pipeline being relocated inaccurately. Upon installation of the Replacement Pipeline, Red Baron Development, LLC shall add fill so as to cause the Replacement Pipeline to be buried to a depth of between forty-eight (48) inches and seventy-two (72) inches below the proposed finished grade of the surface, or such other reasonable depth as the Parties may agree. All costs incurred in connection with the relocation work shall be paid for by Red Baron Development, LLC. 2. Temporary Easement. In order to facilitate the relocation effort, simultaneously with the execution of this Agreement, Red Baron Development, LLC shall execute and deliver to DUKE the Temporary Pipeline Easement, in the form of Exhibit C attached hereto (the `Temporary Easement") granting DUKE the right of access to and from the New Easement to complete the initial installation of the pipeline on the Property. Upon completion of the preliminary survey and staking described in Paragraph 1, DUKE's approval of the proposed easement route, and upon receipt of the Temporary Easement from Red Baron Development, LLC, DUKE shall, within a reasonable period of time thereafter, subject to potential delays caused by adverse weather conditions, commence the relocation of the existing pipeline described in Paragraph 1 above, and pursue the completion of the relocation of the pipelines as soon as practical. 3. Estimate. Within thirty (30) days from the mutual execution of this Agreement, DUKE shall deliver to Red Baron Development, LLC an estimate of the cost of abandoning and removing the affected portion of the Existing Gathering Line and installing and constructing the Replacement Pipeline (the "Estimate"), which estimate shall include DUKE's administrative fees and legal costs. Red Baron Development, LLC shall promptly raise any objections to the Estimate. If the Parties cannot resolve these objections, this Agreement shall terminate and the Parties shall have no further obligations to each other except as set forth in the Existing ROW. If Red Baron Development, LLC does not object to the Estimate, or upon resolution of any objections, the Estimate shall constitute the agreed estimate of the cost of removing and abandoning the affected portion of the Existing Gathering Line and constructing the Replacement Pipeline. Prior to commencement of the relocation procedures by DUKE, Red Baron Development, LLC shall pay the estimated amount to DUKE. Upon completion of the Replacement Pipeline, DUKE shall advise Red Baron Development, LLC of any differences between the Estimate and the actual costs incurred and the parties shall account to each other for any difference. Page 2 of 6 4. Perpetual Easement. Upon completion of the relocation work by DUKE and receipt by DUKE of final payment from Red Baron Development, LLC under the Pipeline Relocation Agreement, (i) DUKE will prepare and record in the real estate records of Weld County, Colorado, a written document in the form attached as Exhibit E, pursuant to which DUKE terminates or quit claims its right to use that portion of the Existing Easement on the Property under Right of Way No. 1, which is to be abandoned and (ii) Red Baron Development, LLC shall execute and record in the real property records of Weld County, Colorado, the Perpetual Pipeline Easement in the form of Exhibit D attached hereto (the "Perpetual Easement"). Within thirty (30) days of completion of the Replacement Pipeline, Red Baron Development, LLC shall have prepared by a licensed surveyor and shall deliver to DUKE an "as built" survey of the Replacement Pipeline. The Perpetual Easement shall be based upon and refer to this final as-built survey. The Perpetual Easement will also provide that no buildings, structures, or other improvements shall be placed upon over, across or within the Perpetual Easement except landscaping (not to include trees), compatible utility lines located and separated at least ten (10) feet from the Replacement Pipeline and street and related gutter and sidewalk improvements, without DUKE's prior written consent. DUKE shall not, under any circumstances, be obligated to release the relocated portions of the Existing Easement (and Red Baron Development, LLC shall not be obligated to execute the Perpetual easement) until DUKE has determined that the new pipeline has been properly constructed and that gas is successfully flowing through the relocated pipeline. Under no conditions shall DUKE be prevented from flowing gas through the existing pipeline system located upon the Property due to the relocation of the pipelines until all relocated pipelines are completed and operational. 5. Installation of New Pipeline and Removal of Portion of Existing Pipeline. In connection with the relocation of the pipeline, DUKE agrees to install the same, in compliance with all applicable laws and regulations. Upon completion of the relocation of the pipeline, and subject to DUKE's reasonable satisfaction that the new pipeline is successfully flowing gas, DUKE shall cause the removal of that portion of its pipeline to be abandoned which currently cross the Property. 6. Covenant Running with Land. The parties agree that this Agreement and the benefits and burdens hereunder shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns. This Agreement and all of the covenants in it shall be covenants running with the land and shall be binding on all parties who succeed to any interest which Red Baron Development, LLC and/or DUKE has in the Property. Any subsequent sale of the Property shall be subject to the terms of this Agreement. 7. Default. In the event that the operations by either DUKE or Red Baron Development, LLC are not at any time being conducted in compliance with this Agreement or either party commits any other breach of this Agreement, the defaulting party shall be notified in writing, delivered by certified mail or commercial overnight courier, of the facts relied upon as constituting a breach thereof, and that party, if in _ default, shall within thirty (30) days after receipt of such notice, cure such default. Page 3 of 6 In the event the defaulting party does not cure such default within said thirty (30) day period, this Agreement may then be specifically enforced or damages obtained at the election of the non defaulting party and the defaulting party shall pay any and all reasonable attorney's fees of the other party. Notices to parties shall be delivered as follows: A. DUKE: Duke Energy Field Services, LP 1324 North 7th Avenue Greeley, Colorado 80631 Attn: Lew Hagenlock B. Red Baron Development, LLC 2634 S. Lima Street Aurora, CO 80014 9. Integration Clause. Together with the exhibits referenced in this Agreement, this Agreement sets forth the entire understanding among the parties and supersedes any previous communications, representations or agreements, whether oral or written. No change of any of the terms or conditions herein shall be valid or binding on any parties unless in writing and signed by an authorized representative of each party. 10. Indemnification. DUKE shall not be responsible for either the repair or replacement of, or any damages to, any improvements located within the easement area in connection with the relocation, operation and maintenance of DUKE'S pipeline and related facilities. Red Baron Development, LLC hereby agrees to defend, indemnify, and hold DUKE (and its officers, directors, employees, successors and assigns) harmless as to all losses, claims, damages, demands, suits, causes of action, fines, penalties, expenses and liabilities, including, without limitation, reasonable attorneys' fees and other costs incurred by DUKE, arising out of or connected in any way with the relocation of the pipeline, unless DUKE is determined in a judicial or arbitration proceeding to have acted with gross negligence, in material breach of this agreement, or with willful misconduct, in which case no such indemnification obligation shall exist. 11. Recording. Following execution of this Agreement, the new Easement (Exhibit D) and DUKE's Quitclaim (Exhibit E), once executed, shall be recorded in the real property records of Weld County, Colorado, and the parties agree that the recording of such documents is adequate notice to all buyers of land lying within the above described real property of the existence and location of the easement given to DUKE. Page 4 of 6 Further, Red Baron Development, LLC shall ensure that notification shall be made to DUKE and its One-Call system prior to commencement of any activities by him or under his direction, including, without limitation, construction, excavation, maintenance repair or landscaping activities on or over the Existing Easement and/or the New Easement. 12. No Joint Venture. This Agreement is not intended to, nor shall it be interpreted to create a joint venture, partnership or any other relationship between Red Baron Development, LLC and DUKE, other than that of surface owner and easement holder, respectively. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. DUKE ENERGY FIELD SERVICES, LP: LAND OWNER By Ae2/ By �yl.Tl,/y,4I l Lewis D. Hagenlock ,P.,24-Y' .4Cm. yju - Title: Ar j-,.,Co' Title: c2eikr,13ca/ Q 2 ACKNOWLEDGEMENTS State of Colorado )ss. County of v3.*6 The foregoing instrument was acknowledged before me this SIe ' day of February, 2004, by Lrv1.`, 'il s.'•• \oC , as T— E,c t of DUKE ENERGY FIELD SERVICES, LP, known to be the person described in and who executed the foregoing instrument, and who acknowledged to me that he executed the same. WITNESS my hand and official seal. ti • Notanyi ubli My Commission Expires -)t-., �(� h W I Lki N ti Q. 0T a Pi's ssOZy�� i s • i 1,454.'•; OB` Cl/QC V �17TF'.......•pQ.P1 \y Q OF CO Page 5 of 6 State of Colorado )ss. County of a/aD The foregoing instrument was acknowledged before me this ;;c>t" day of February, 2004, by PP ,l.,\c‘ y„roc , as LAND OWNER, a known to be the person described in and who executed the foregoing instrument, and who acknowledged to me that he executed the same. WITNESS my hand and official seal. = N, Nota ''ubli My Commission Expires: 1 - H - cpG0 W�LK�tis h; ••O — G a 4";'°. Vey. .•• •lac OFOM- Page 6 of 6 EXHIBIT "A" PARCEII-1: The East 1/2 of the East 1/2 of the NE 1/4 of Section 6, Township 1 North, Range 65 West of the 6th P.M. , Weld County, Colorado. PARCEL 2: Portions of the SE1/4 of Section 30, and the East 1/2 of the East 1/2 of Section 31, Township 2 North, Range 65 West of . the 6th P.M. , Weld County, Colorado, described as follows: Beginning at the° NE corner of the SE 1/4 of said Section 30; Thence South 0000'00" West on an assumed bearing along the East line of the said SE 1/4, 1197.50 feet to the True Point of Beginning; Thence South 90°00'00" West, 1008.26 feet; Thence South 26°38'00" West, 623.54 feet; Thence South 15°11'50" East, 925.34 feet to a point on the North line of sa_d East 1/2 of the East 1/2 of said Section 31; Thence North 89°45'10." East along said North line, 360.22 feet; Thence South 26°23'40" East, 1077.99 feet to a point 200.00 feet West of the East line of said East 1/2 of the East 1/2 of said Section 31; Thence South 00°20'30" West parallel with the said East line, 3722.86 feet to a point 650.00 feet North of the South line of said East 1/2 of the East 1/2 of said Section 31; Thence South 89°57'35" West parallel with the said South line, 1125.65 feet to a point on the nest line of said East 1/2 of the East 1/2 of said Section 31; Thence South 00 23'20" West along said West line, 650.00 feet to the SW Corner of the said East 1/2 of the East 1/2 of said Section 31; Thence North 89°57'35" East along the South line of the said East 1/2 of the East 1/2 of said Section 31, 1326.18 feet to the SE Corner of the said East 1/2 of the East 1/2 of said Section 31; Thence North 00°20'30" East along the East line of the said East 1/2 of the East 1/2 of said Section 31, 5341.31 feet to the SE Corner of said Section 30; Thence North 00°00'00" East along the East line of said Section 30, 1445.85 feet to the True Point of Beginning. • Red Baron Estates P. U . D . Being a Dart of the Southeast 1/4 of Se[.t. ion 30, the Fast: 1,,P r;f Section _if, in Township 2 North, fanae 65 West of the 6th P.M.. arnd a part of the Northeast 1/4 of Section 6, :. Toyrnship 1 North, Range 65 West of the 6Lh P. M., County of 64g)r), State of Colorado. • SOUTHEAST CORNER SECTION 30. ---- • FOUND 3/4" REBAR WITH 3 1/4" : ALUMINUM CAP LS 13155. —6 RALIttIs TEmPOFIA WITH lr "RED aacro ESTATES CUL-UE SAG �IFLL H -EASE _N1 NTRANCE S[Cill I OCATEION �� e' E* ar. 1S Fl1Ll-Y B1jIL1-- / i� — — -- -- v --------====--- - -- --• •--43 y j��T. ~- •• �r i- - --.-------..ut" . Y B_a9---- - ��. �� —`:_ _.._—' _. ---�--" 17}, 20 f `. _ —1 .c , 1 • ._ .,taoaosii,]6CAT I ON 0 I 643.21' SE ENT / 5)' DUKE ENERGY EASE MEN r ------'rte o _ 62'54-54 } r%; )-. S,dam 0) 1 �: • Or a : — d X H 'ERN 30 195940 SO. F T . " . • ., . _ .-. _ • co 95939 SO. F I PWKI w.c I +moo. -M-I r ' • �; X1. 50 11CRE5 +/ I 4.50 ACRES a /- °` .ff I Soo•00_00 W 663. 17- -- 1 �I °° ---- - �.1.r soo•ao'oo w x71.63_ w � _ 50' CaLPCNE GA— E�� . r LQ C 2 - 4ND ' �'--- --H —I• 'es'!1 r NE�EP1 L0N NO 130640770 • . 's 959Q0 5C� F T . LOT •• . .. w , <V A- Yeti vx 70.[.7 4. •V • 6,-- ' . • a� m 52.• (?5941 SCE.f- fE '`r-�- 4.50 ACRES t/- -� • - _SO2'g _O 8'47"K r 1.._, SOO'24�03"E 699.68L_ /,• O :�� 7 .. - -____-----\i� 'fie. LOT l� / I CDj 1 -st .11 . i 1-01 B _ 4.50 ACRES +/- 2 L Ptatit.nw nsr s n ramie ' I f) --, !.�/ u� jiZ U I � 505'57'1:-C `� �S. W1TM 150' 4 125.81 O 1V CU EASEMENT 4',� 9, LOT 4 LUl 5 �\ � lr, a 195�3dty 5U_F I . :y • to 195941 SOFT . �, 4 .5O ACRES r/- \ .�� 8� SA rn 4.50 ACRES +/- a — • • N i m...(.04„,0--> > Se • EXHIBIT "E" co- QUITCLAIM DEED AND RELEASE THIS DEED AND RELEASE, made this day of ,2004, 10 Ad, between DUKE ENERGY FIELD SERVICES, LP ("grantor"), and whose legal address is: , "(grantee"), WITNESSETH: (1) Whereas grantor is the owner of a pipeline located on an easement recorded in the real property records of County in Book at page , which pipeline is situated in part on the lands described below(the"Existing Right-of-Way"); and (2) Whereas grantor and grantee executed that certain Pipeline Relocation Agreement dated ; and (3) Whereas grantee has executed that certain Easement of even date herewith in accordance with the terms of the Pipeline Relocation Agreement; NOW,THEREFORE,the grantor,for and in consideration of the execution of the Easement,the mutual promises in the Agreement, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold, conveyed and QUITCLAIMED, and by these presents does remise, release,sell, convey and QUITCLAIM unto the grantee, its successors and assigns,forever,all the right, title, interest, claim and demand which the grantor has in and to the portion of the Existing Right-of-Way that is specifically described below, together with all related improvements, if any, situated on this portion of the Existing Right-of-Way, lying and being in the County of and State of Colorado, described as follows: Specifically excluded from this Deed are the rights granted to grantor in the other portions of the Existing Right of Way that are not identified above. TO HAVE AND TO HOLD the same,together with all and singular the appurtenances and privileges attached thereunto belonging or in anywise thereunto appertaining,and all the estate, right,title, interest and claim whatsoever, of the grantor, either in law or equity, to the only proper use, benefit and behoof of the grantee, its successors and assigns forever. E IN WITNESS WHEREOF,The grantor has executed this deed on the date set forth above. s DUKE ENERGY FIELD SERVICES, LP By: Printed Name: Its: STATE OF COLORADO )ss. ( COUNTY OF The foregoing was acknowledged before me this_day of ,2004 by , as of Duke Energy Field Services, LP grantor. My commission expires: Witness my hand and official seal. Notary Public BOARD OF COUNTY COMMISSIONERS' SIGN POSTING CERTIFICATE THE LAST DAY TO POST THE SIGN IS MARCH 16, 2004 THE SIGN SHALL BE POSTED ADJACENT TO AND VISIBLE FROM A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY (ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. I, SHERI LOCKMAN, HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE SIGN WAS POSTED ON THE PROPERTY AT LEAST FIFTEEN DAYS BEFORE THE BOARD OF COMMISSIONERS HEARING FOR PZ-1035 IN THE AGRICULTURAL ZONE DISTRICT. Jacqueline Hatch Name of Person Posting Sign Signgjige-of-Persarr Posting Sign d7� ! tl 4,-,----- 6- STATE OF COLORADO ) )ss. I COUNTY OF WELD ) 1 ,l \,1 The foregoing instrument was subscribed and sworn to me this (day of t , 20 1. WITNESS my hand and official seal. J „l'I JL L �) ) 7gi ' Notary Public 1- My Commission Expires: C, 32 ' }`x-' ti • ;:74, ,. $ 3t a'� ?� 4 q f 3 C i .₹ S Y 4 t ePrr t `a`k 5Y 11 ' VE � *11 � ' \_ � �'a, L (7 lei �/1 [c ( y Weld County School District Re 3(J)/95 West Broadway/P.O.Box 269/Keenesburg,CO 80643 Tel 1303)536-2000/Fax: 303)536-2010 WELD V March 24, 2004 Weld County Planning Department GREELEY OFFICE MAR 2 6 2004 RECEIVED Ms. Sheri Lockman Weld County Department of Planning Services 1555 North 17th Avenue Greeley, CO 80631 Re: Case Number PK-1035 Dear Ms. Lockman: Weld County School District Re-3(J) will designate one location on WCR 39 to serve as the bus pick-up and off-load area for the eight residential lots of this PUD. This arrangement will not require specific accommodations be made by the applicant for pick- up and off-load purposes. Sincerely, Marvin Wade, Ed.D. Superintendent of Schools Weld County School Dist RE-3J EXHIBIT I _ Pt4a RED BARON ESTATES 6900 WCR 39 FORT LUPTON, COLORADO 80621 303-536-0380 February 19,2004 Ms. Sheri Loc{man Department of Planning Services 555 N. 17th Avenue Greeley,CO 80631 Dear Ms. Lockman Please be advised that Red Baron Development LLC, on behalf of Red Baron Estates PZ-1035, does hereby request the vacation of USR-768, fir a recreational train facility. Thank you. Sincerely. Marilyn Taylor Authorized Agent/Red Baron Estates EXHIBIT T }' 4635 Hello