HomeMy WebLinkAbout20041351.tiff Davis Graham & Stubbs 1. LP
May 14, 2003
VIA FACSIMILE
Weld County Planning Department
1555 N. 17 Avenue
Greeley, CO 80631
Attn: Chris Gathman
Re: Distant Thunder P.U.D. S1/2 10-1-67, Weld County
Dear Mr. Gathman:
I am writing to you on behalf of my client, John Zadel, in connection with his pending
application for the Distant Thunder minor subdivision. We want to document for you the
exceptional difficulty Mr. Zadel has been encountering in attempting to obtain a surface use
agreement from K.P. Kauffman Company, Inc. ("KPK"), a lessee of oil and gas rights on the
property. KPK and Mr. Zadel began conversations concerning the proposed Distant Thunder
P.U.D. and a surface use agreement in August of 2001. The discussions have continued
sporadically since that time and KPK forwarded for review a general form of surface use
agreement which was not reflective of the property conditions in September of 2002. Comments
on the form were returned, and we thought we had finally made progress toward a final
agreement at a meeting with KPK representatives on February 14, 2003. We were told to expect
a revised agreement in the next week. However since that time, we have had only telephone and
email contacts reporting that KPK would turn to the surface use agreement soon, or were
reviewing the layout of the Distant Thunder P,U.D, The plat about which KPK is now
professing concern is unchanged from the plat which has been in their hands for months. As of
this date, we have not received the promised surface use agreement for review.
The delays Mr. Zadel has experienced in attempting to obtain a surface use agreement
from 1CPK have delayed the project and caused additional expense. We have come away with
the impression that delay may be a tactic to frustrate the P.U.D. process, since it is the
understanding of the parties that a surface use agreement is a requirement for the approval of the
minor subdivision, although I did not note a reference to surface use agreements in my review of
the Weld County subdivision ordinance. We understand that surface owners have an obligation
to use the surface in a manner which does not interfere with the rights of mineral owners, and we
believe the Distant Thunder plan accomplishes that. Neither, however, should holders of mineral
rights in a property be able to block all improvements to the surface and stop the process merely
by refusing to respond.
_..-_.__.___._._,_. Barbara J.Mueller 303 892 7417.barhar nmeller@dgslaw-cam
---_ EXHIBIT
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2004-1351
Mr. Zadel will be in contact with you soon in order to discuss what avenues he may be
able to pursue to gain approval for the Distant Thunder P.U.D. in the event we are not able to
enter into a surface use agreement with KPK. We very much appreciate your attention and
assistance.
Please feel free to contact me at your convenience if you have any questions I
might be able to answer. Thank you.
Very truly yours,
/ Barbara J. Mueller
for
DAVIS GRAHAM & STUBBS LLP
cc: John Zadel
SURFACE USE AGREEMENT
This Surface Use Agreement ("Agreement") is entered into and made effective this _
day of September, 2002, and is between Kerr McGee Rocky Mountain Corporation ("KMG")
with an address of 1999 Broadway, Suite 3600, Denver, CO 80202,
and ,with an address
of ,herein after referred to as"Surface Owner".
A. Surface Owner owns the surface estate of that certain tract of land more
particularly described on Exhibit "A"attached hereto, being the N/2SW/4 of Section 10,
Township 1 North, Range 67 West, Weld County, Colorado(hereinafter referred to as the
"Property");
B. Surface ownership of the Property is subject to the rights of the oil and gas
mineral leasehold estate,which is now owned by KMG;
C. Surface Owner plans to develop the surface of the Property;
D. ICMG has the right to develop its oil and gas leasehold estate on the Property;and
E. This Agreement sets forth the parties' rigbts and obligations regarding the
relationship between the development of the Property by Surface Owner and KMG's
operation and development of its oil and gas leasehold estate, such rights and obligations
to be binding upon the parties' successors and assigns.
In consideration of the mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. AREAS RESERVED FOR FUTURE WELLS.
Surface Owner shall provide KMG the spaces designated on Exhibit "A" (the "Oil and
Gas Operation Areas"), in its present condition, for any operations conducted by KMG in
connection with Future Wells, including, but not limited to, production activities, workovers,
well deepenings,recompletions, fracturing and replacement wells. Except for the space included
within the Oil and Gas Operations Areas, and including the access roads and all access and
necessary easements associated with flowlines, gathering lines and pipelines as provided in this
Agreement, KMG -hall not occupy the surface of the Property for any Future Wells except in the
event of an emergency or for reasonable incidental,temporary and non-damaging activities, and
KMG shall be strictly and solely responsible for any damages that may occur as a result of
KMG's activity on such portions of the Property.
2. WELL LOCATIONS.
KMG shall have the right to drill replacement wells within the Oil and Gas Operation
Areas, including horizontal and directional wells that produce from and drain lands other than
EXHIBIT
I 5S3
the Property provided such lands are validly pooled with all or any portion of the lands included
in KMG's oil and gas lease covering the Property, and so long as such locations are permitted
locations under the then applicable well spacing regulations of the Colorado Oil and Gas
Conservation Commission ("COGCC") or exceptions granted thereto by the Director of' the
COGCC, and the Surface Owner shall not protest or object to any such exception location.
KMG shall not otherwise have the right to drill new wells on the Property.
3. SETBACK REQUIREMENTS.
The Oil and Gas Operation Areas are more particularly described on the attached
Exhibit"A". Surface Owner will not locate any building or structure within the Oil and Gas
Operation Area. ICMG's operations within the Oil and Gas Operation Areas shall include all
reasonably necessary use of the surface, including access to such Area as shall be mutually
agreed upon by the Parties for use of the surface for maintenance, well deepenings,
recompletions, workovers, fracturing and other production activities required for reasonably
prudent operations of the Existing Well and any replacement well,
Surface Owner understands and acknowledges that the COGCC has rules and regulations
that apply to the distance between a wellhead and public roads, production facilities, building
units and surface property lines, among other things. Surface Owner hereby waives all setback
requirements in the 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 arc or become inconsistent with this Agreement or that would prohibit or
interfere with the rights of KMG its successors and assigns, to explore for and produce the oil
and gas in accordance with this Agreement. Surface Owner understands, and should inform
subsequent owners of the Property or any portion thereof,that KMG or its successors and assigns
may cite the waiver in this paragraph in order to obtain a location requirement exception or
variance under COGCC rules or from a local jurisdiction consistent with the operations within
the Oil and Gas Operations Areas as contemplated by this Agreement. Surface Owner agrees not
to object to the use of the surface in the Oil and Gas Operations Areas consistent with this
Agreement and that it will provide KMG or its successors and assigns with whatever written
support they may reasonably require to obtain permits from the COGCC or any local
jurisdiction.
4. EXISTING PIPELINES.
The current development plans do not include any provisions or the anticipation for the
relocation of any existing pipelines now located on the Property (hereinafter referred to as the
"Existing Pipeline). However, future relocations may be needed in order to complete the future
development of the property. Surface owner shall have the right to make written requests to
KMG to relocate any such lines, provided KMG shall have a reasonable amount of time to
complete such relocations and all costs shall be borne by Surface Owner.
5. ACCESS.
Surface Owner shall provide to KMG all necessary easements for access to the Oil and
Gas Operation Areas. Such access shall be mutually agreed upon by the Parties and shall be of
sufficient scope to allow KMG to conduct at'operations contemplated for the Future Wells.
The access roads to be used by KMG will be those roads either that are in place or those that are
anticipated to be constructed by Surface Owner at Surface Owner's sole cost and expense as part
of Surface Owner's development of the Property.
6. BATTERIES AND EQUIPMENT.
KMG shall have the right to locate, build, repair and maintain tanks, separators,
dehydrators, compressors and other equipment reasonably appropriate for the operation and
production of the Future Wells within the Oil and Gas Operations Areas on Exhibit"A".
With respect to KMG's equipment and facilities other than flowlines:
a. KMG shall install and maintain, at its sole cost and expense, all fences
around Future Wells in compliance with the Rules and Regulations of the COGCC or as
are mutually agreed to by Surface Owner and KMG;
b. KMG ch'll install and maintain, at its sole cost and expense, all gates and
locks necessary for the security of any wells or facilities in the Oil and Gas Operations
Areas. Such gates and locks shall be the standard gates and locks used by KMG ;
c. KMG shall paint any production facilities for any wells, including
wellhead guards,with paint that is approved by the COGCC; and
d Surface Owner shall not inhibit KMG's access to the Oil and Gas
Operation Areas or inhibit KMG's operations within the Oil and Gas Operation Areas by
landscaping or other improvements, unless otherwise agreed upon between Surface
Owner and KMG.
7. FLOWLINES AND PIPELINES
KMG shall have the right to replace any and all flowlines, gathering lines and pipelines
for gas and liquids, including replacement of any future lines as provided herein, necessary in
connection with KMG's production and transportation of oil and gas from any wells on the
Property. All flowlines and pipelines shall be located at a depth of approximately 48 inches from
the surface. The construction and burying of additional flowlines, gathering lines and pipelines
shall be at the sole cost and expense of KMG or its gas purchaser. Should Surface Owner
request any future or additional relocation of existing flowlines or pipelines,or request relocation
of any flowlines or pipelines hereinafter constructed on the Property, and KMG agrees to such
relocation, Surface Owner shall be responsible for any and all relocation costs. Surface Owner
shall maintain a minimum of 48 inches and not more than 72 inches of cover over all pipelines
and flowlines during any of Surface Owner's operations.
8. NOTICE OF FUTURE OPERATIONS.
KMG shall provide at least seven days prior written notice to Surface Owner of any
operations in connection with the reworking, fracturing, deepening or other operation on any
Future Well or any replacement well; provided, however, that KMG shall provide at least 30
days prior written notice to Surface Owner of the initial drilling of any Future Well. Regardless
of the foregoing notice requirements, KMG shall have immediate access in the event of an
emergency.
The notification of operations shall describe the following:
1. The proposed starting date for the proposed activity;
2. The proposed operations to be performed at the site;
3. The approximate duration of the proposed.activities.
Not less than five working days prior to 'CMG's mobilization on the applicable Oil and
Gas Operations Areas, either KMG or Surface Owner may request an on-site meeting. The
purpose of the meeting shall be to informs Surface Owner of the expected activity and to
coordinate site access, hazards, barricades, restoration or any other issues that affect the use of
and the safety of Surface Owner's development.
9. NOTICES TO HOMEOWNERS AND BUILDERS.
Surface Owner shall furnish all buyers of the Property from Surface Owner with a plat or
map showing the Oil and Gas Operation Areas. In addition, Surface Owner shall provide notice
to all builders, homeowners and other buyers of the Property from Surface Owner and the
homeowner associations that:
a. Such buyers are not purchasing and do not own any interest in the oil and
gas mineral estate;
b. There may be ongoing oil and gas operations and production in the Oil
and Gas Operation Areas on the surface of the Property;
c. Future purchasers of all or a portion of the Property, as successors in
interest to Surface Owner, will be acquiring a proportionate interest in Surface Owner's
rights under this Agreement and assuming those obligations undertaken by Surface
Owner pursuant to this Agreement; and
d Homeowner associations and buyers of individual lots or homes, as
successors in interest to Surface Owner, will be acquiring a proportionate interest in
Surface Owner's rights under this Agreement, and will be subject to the waivers
contained in Sections 11 and 12 and the covenants contained in Section 3 prohibiting the
location of any building or structure within the Oil and Gas Operation Area and waiving
objection to any setback rules of the COGCC or any local jurisdiction.
10. DRILLING AND COMPLETION OPERATIONS.
KMG shall endeavor to diligently pursue any drilling operations to minimize the total
time period and to avoid rig relocations or startup during the course of drilling. Surface
Owner waives any objections to continuous (i.e_, 24-hour) drilling operations. Surface
Owner also waives any right to require that wellhead or production equipment be located
in conformance with any setback requirements (including but not limited to those
concerning any"high density" Rules of the COGCC)that are more restrictive than those
specified in Section 9 or as depicted on Exhibit "A". Subject to the waiver of setback
requirements as set forth above, KMG shall conduct its operations in compliance with the
provisions of the Rules and Regulations of the COGCC set forth in Rule 603.
11. GOVERNMENTAL PROCEEDINGS.
Surface Owner shall not oppose KMG in any agency or governmental proceedings,
including but not limited to the COGCC, Weld County or other governing body proceedings,
related to KMG's operations on the Property, including but not limited to drilling, workovers,
well deepenings and recompletions, provided that KMG's position in such proceedings is
consistent with this Agreement.
12. LIMITATION OF LIABILITY,RELEASE AND INDEMNITY.
a. No party shall be liable for, or be required to pay for, special, punitive,
exemplary, incidental, consequential or indirect damages to any other party for activities
undertaken within the scope of this agreement;
b. Fxrnpt as to claims arising out of pollution or environmental damage
(which claims are governed by Section 13 below) or out of other provisions of this
Agreement (which claims shall be governed by the terms of this Agreement), 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 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. 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;
c, KMG shall have the right to file an operator's lien against other owners of
the oil and gas leasehold interest to recover amounts owed to KMG;and
d Upon the assignment or conveyance of a patty's entire interest in the
Property, that party shall be released from its indemnification in Section 12.b. above, for
all actions or occurrences happening after such assignment or conveyance.
13. ENVIRONMENTAL INDEMNITY.
The provisions of Section 12 above, except for Section 12a, shall not apply to any
environmental matters, which shall be governed exclusively by the following, subject to the
limitations of Section 12.a, above:
a. "Environmental Claims" shall mean all Claims asserted by governmental
bodies or other third parties for pollution or environmental damage of any kind, arising
from operations on or ownership of the Property or ownership of the oil and gas
leasehold interest, whichever is applicable, and all cleanup and remediation costs, fines
and penalties associated therewith, including but not limited to any Claims arising from
Environmental Laws or relating to asbestos or to naturally occurring radioactive material.
Environmental Claims shall not include the costs of any remediation undertaken
voluntarily by any party, unless such remediation is performed under the imminent threat
of a Claim by a governmental body or other third party;
b_ "Environmental Laws" shall mean any laws, regulations, rules,
ordinances, or order of any governmental authority(ies), which relate to or otherwise
impose liability, obligation, or standards with respect to pollution or the protection of the
environment, including but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.), the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), the Clean
Water Act (33 U.S.C. §§ 466 et seq.), the Safe Drinking Water Act (14 U.S.C. §§
1401-1450), the Hazardous Material Transportation Act (49 U.S.C. §§ 1801 et seq.), the
Clean Air Act,and the Toxic Substances Control Act(15 U.S.C. §§ 2601-2629); and
c. Environmental Indemnification. KMG shall protect, indemnify, and hold
harmless Surface Owner,homeowners association and any lot owner who purchases a lot
from Surface Owner from any Environmental Claims relating to the Property or oil and
gas leasehold thereunder that arise out of KMG's ownership and operation of the Oil and
Gas Operations Area or KMG's ownership and operation of its pipeline easement or
rights-of-way on the Property. Surface Owner shall fully protect, indemnify and hold
harmrless ICMG and its gas and oil purchasers from any and all Environmental Claims
relating to the Property that arise out of Surface Owner's development of the Property.
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 patty. 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 patty would be liable under the
provisions of Section 12 or 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 five 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.
KMG does not represent that it has rights to settle matters for all of the mineral owners in the
Property, and this Agreement shall only apply to and bind the KMG leasehold interest in 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; provided, as to KMG, successors and assigns shall be deemed to be limited to lessees
under the oil and gas leases which KMG owns.
18. TERM.
This Agreement shall become effective when it is fully executed and shall remain in full
force and effect until KMG's leasehold estate expires or is terminated, and KMG has plugged
and abandoned all wells owned all or in part by KMG and complied with the requirements of all
applicable oil and gas leases pertaining to removal of equipment, reclamation, cleanup and all
other applicable provisions of the leases and existing laws and regulations. When this Agreement
ceases to be in MI force and effect, the parties shall execute any and all releases necessary to
evidence the fact that this Agreement shall no longer apply to the Property.
19. NOTICES.
Any notice or other communication required or permitted under this Agreement shall be
sufficient if deposited in U.S.Mail,postage prepaid,addressed to each of the following:
If to KMG:
Kerr McGee Rocky Mountain Corporation
1999 Broadway, Suite 3600
Denver,Colorado 80202
Attention: Denver Basin Land Manager
If to Surface Owner:
Any party may, by written notice so delivered to the other parties, change the address or
individual to which delivery shall thereafter be made.
20. RECORDING.
This Agreement, any amendment hereto, and any release entered into pursuant to
Section 18 above, shall be recorded by KMG, which shall provide the other pasties with a copy
showing the recording information as soon as practicable thereafter.
21. SURFACE DAMAGES.
In consideration of the parties' rights and obligations, as outlined herein, this Agreement
shall constitute the agreement for surface damages required pursuant to the COGCC's Rules and
Regulations.
22. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be resolved by arbitration conducted in Denver,Colorado and shall be administered
by the American Arbitration Association under its commercial rules, and judgment on the award
rendered by the arbitrator(s)may be entered in any court having jurisdiction thereof
23. 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.
24. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding among the parties hereto 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.
25. EXECUTION AND BINDING EFFECT
This Agreement may be executed in any number of counterparts each of which shall be
deemed an original instrument but all of which together shall constitute one and the same
instrument, and shall be binding upon and inure to the benefit of the parties, and each of their
respective heirs, executors, administrators, successors and assigns and is executed by the parties
as of the Effective Date set forth above.
The parties have executed this Agreement on the day and year first above written.
KERR MCGEE ROCKY MOUNTAIN CORPORATION
By:
JAMES P. WASON
Attorney-in-Fact
SURFACE OWNER?
By:
ACKNOWLEDGMENTS
STATE OF COLORADO )
CITY AND )ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this _day of August 2002, by
JAMES P. WASON, as Attorney-in-Fact for Ken McGee Rocky Mountain Corporation, on behalf
of such corporation.
Witness my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
STATE OF COLORADO )
)ss,
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of August 2002, by
as ,on behalf of said corporation.
Witness my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
•
AGREEMENT THIS AGREEMENT is made and entered into this //dd -t1ay of
2003, by and between JZM, LLC, hereinafter referred to as "Owner," and the CITY F DACONO,
a municipal corporation of the State of Colorado, hereinafter referred to as "Dacono"or"City".
WITNESSETH:
WHEREAS, Owner is the owner of certain real property located in Weld County,
Colorado, with a street address of 4200 Weld County Road 19, Ft. Lupton, CO 80621, and more
particularly described and depicted on Exhibit "A" attached hereto and incorporated herein by
reference (such property is hereinafter referred to as"the Property"); and
WHEREAS, the Property is located within the Urban Growth Area of the City, as
identified in the Interim Coordinated Planning Agreement among Weld County, the City of Dacono
and the Towns of Firestone and Frederick(the"ICPA"); and
WHEREAS, Owner has submitted to Weld County an application for approval of a large-
lot residential subdivision to be located on the Property, which application is pending under Weld
County Case No. S-600; and
WHEREAS, as a condition of any such approval, and pursuant to the ICPA, the Owner is
obligated to execute an annexation agreement with the City; and
WHEREAS, the parties by this agreement desire to set forth their understanding with
respect to annexation of the Property to the City; and
WHEREAS, it is to the mutual benefit of the parties hereto to enter into the following
Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE PREMISES AND
THE COVENANTS AS HEREINAFTER SET FORTH, IT IS AGREED BY AND
BETWEEN THE PARTIES AS FOLLOWS:
1. Incorpnration of Recitals. The parties confirm and incorporate the foregoing recitals
into this Agreement.
2. Purpose. The purpose of this Agreement is to set forth certain terms and conditions
with respect to annexation of the Property to the City. Except as expressly provided for herein to
the contrary, all terms and conditions herein are in addition to any and all requirements concerning
annexation and development contained in the City of Dacono Municipal Code, development
EXHIBIT
11 ( A
regulations, and Comprehensive Plan, and the Municipal Annexation Act of 1965, as amended,
C.R.S. §31-12-101 et seq. This Agreement shall not be construed to preclude further agreements
concerning annexation of the Property to the City or the provision or financing of municipal
services to the Property.
3. Annexation. Owner shall apply for and consent to the annexation of the Property to
the City when requested in writing by the City Council, so long as the Property is eligible for
annexation to the City. The Owner will also sign an annexation petition, or a petition for
annexation election, when requested by the City Council, and will vote for annexation to the City if
an annexation election relating to the Property is held. The City agrees it will not make any request
to Owner under this Paragraph sooner than four years from the date of execution of this Agreement,
unless sooner permitted pursuant to Paragraph 5.
4. Property to he Annexed. The Property the Owner shall annex to the City pursuant to
this Agreement is the Property described on Exhibit A, attached hereto and incorporated herein by
reference, or such portion thereof as the City may request. To facilitate any requested annexation of
a portion of the Property, Owner hereby consents to the division of the Property for annexation
purposes only,to the extent such consent is required by C.R.S. §31-12-105(1). Owner shall execute
additional evidence of such consent upon request by the City.
5. Failure to Annex: Appointment of Attorney-in-Fact. In the event Owner fails to
annex the Property to the City as required by this Agreement the City may, at is sole option and
without otherwise limiting its legal rights, bring an action at law or equity, including an action for
specific performance, to enforce Owner's obligations hereunder. Further, Owner, for themselves,
their successors, transferees, heirs, and assigns hereby irrevocably appoint the City Administrator of
Dacono as Owner's lawful attorney-in-fact for the purpose of signing any annexation petition or
petition for annexation election, for voting in any annexation election, and for executing any and all
other documents determined by the City to be necessary for annexation of the Property to the City.
The City Administrator shall exercise the powers under this appointment only upon written request
of the City Council, and only if the Owner and/or its successors, transferees, heirs and assigns have
not signed a petition for annexation within thirty (30) days after receipt of a written request made
pursuant to Paragraph 3. This power of attorney is granted and intended to be valid for the longest
period of time permitted by state statute. In the event the state statute is amended to shorten the
validity of this power of attorney to a period of less than five years, the City may exercise this
power of attorney at any time prior to the expiration of the validity thereof, even if within the four-
year waiting period set forth in Paragraph 3. The City may also require annexation of the Property
at any time in the event the Property is used for purposes other than a large-lot residential
subdivision as the same is proposed or may be approved by Weld County under Case No. S-600.
2
6. Obligations Enforceable. The parties agree that this Agreement, pursuant to C.R.S.
§31-12-121, constitutes an enforceable obligation upon the Owner, their successors, heirs, and
assigns to annex the Property to the City under the terms hereof.
7. Annexation Documents. When requested by the City, Owner shall provide at its
expense a legal description, annexation petition, annexation maps, surveys, newspaper publications,
and other reports and documents determined by Dacono to be necessary to accomplish the
annexation of the Property to the City. Dacono shall prepare the annexation impact report.
8. Plat Note. Owner shall include on any subdivision plat for the Property a note
stating as follows: "The property platted herein is subject to that certain Agreement regarding
annexation to the City of Dacono which is recorded at Reception No. [Reception No of this
Agreement will he inserted] of the records of the Weld County Clerk and Recorder. Such
Agreement provides that the property platted herein may be annexed to the City of Dacono."
9. Legislative Discretion. The Owner acknowledges that annexation of the Property is
subject to the legislative discretion of the City Council of the City of Dacono. Nothing in this
Agreement is intended or shall be construed to require the City to annex the Property or to initiate
any annexation proceedings relating to the Property.
10. No Other Annexation. Under no circumstances shall the Property be annexed to
another municipality without the prior written permission of the City Council, which may be
granted or denied in the sole and absolute discretion of the City.
11. Covenants to Run with Land/Binding Effect. This Agreement and all covenants
herein touch and concern the real property described in Exhibit A and shall be covenants running
with the land. This Agreement shall be binding upon and inure to the benefit of the Owner and the
City, and their respective heirs, transferees, successors, and assigns. This Agreement shall be
recorded with the County Clerk of Weld County, Colorado,at Owner's expense.
12. No Repeal of Laws. Nothing contained in this Agreement shall constitute or be
interpreted as a repeal of the City's ordinances or resolutions,or as a waiver of the City's legislative,
governmental, or police powers to promote and protect the health, safety, and welfare of the City
and its inhabitants.
13. Severability. The parties agree that if any part, term, portion, or provision of this
Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law of
the State of Colorado, the validity of the remaining parts, terms, portions, or provisions shall not be
affected, and the rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part,term,portion, or provision held to be invalid.
3
14. Future Cooperation. The parties agree that they will cooperate with one another in
accomplishing the terms, conditions, and provisions of the Agreement, and will execute such
additional documents as necessary to effectuate the same.
15. Amendment. This Agreement may be amended only by mutual agreement of the
City and Owner. Such amendments shall be in writing, shall be recorded with the County Clerk of
Weld County, Colorado, shall be covenants running with the land, and shall be binding upon all
persons or entities having an interest in the Property subject to the amendment unless otherwise
specified in the amendment.
16. Entire Agreement. This Agreement embodies the entire agreement of the parties.
There are no promises, terms, or obligations other than those contained herein, and this Agreement
supersedes all previous communications, representations, or agreements, either verbal or written,
between the parties.
17. Owner. As used in this Agreement,the term "Owner" shall include any of the heirs,
successors, transferees or assigns of Owner, which include, but are not specifically limited to,
owners of individual lots within the proposed subdivision of the Property. All such parties shall
have the right to enforce this Agreement and shall be subject to the terms of this Agreement as if
they were the original parties thereto.
18. Amendmentc to Law. As used in this Agreement, unless otherwise specifically
provided herein, any reference to any provision of any City ordinance, resolution, regulation, or
policy is intended to refer to any subsequent amendments or revisions to such City ordinance,
resolution, regulation, or policy, and the parties agree such amendments or revisions shall be
binding upon Owner.
19. Notice. All notices required under this Agreement shall be in writing and shall be
hand-delivered or sent by facsimile transmission or registered or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties herein set forth. All notices by hand
delivery shall be effective upon receipt. All facsimile transmissions shall be effective upon
transmission receipt. All notices by mail shall be considered effective seventy-two (72) hours after
deposit in the United States mail with the proper address as set forth below. Either party by notice
so given may change the address to which future notices shall be sent.
Notice to City: City of Dacono
512 Cherry Street
P.O. Box 186
Dacono, CO 80514
4
With copy to: Light, Harrington&Dawes, P.C.
1512 Larimer Street, #550
Denver, CO 80202
Notice to Owner: JZM, LLC
4200 Weld County Road 19
Ft. Lupton, CO 80621
20. Governing Law. The laws of the State of Colorado shall govern the validity,
performance, and enforcement of this Agreement. Should either party institute legal suit or action
for enforcement of any obligation contained herein, it is agreed that the venue of such suit or action
shall be in Weld County, Colorado.
21. Headings. The paragraph headings in this Agreement shall not be used in the
construction or interpretation hereof as they have no substantive effect and are for convenience
only.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
CITY OF DACONO
BY /That. 77//a4
Wade Carlson, Mayor
ATTEST: ,i'
hit
Nanc Elliotc City Clerk
5
OWNER:
JZM, LLC
By:
John Zadel, Manager
ACKNOWLEDGEMENT
STATE OF COLORADO )
)ss
COUNTY OF )
The above and foregoing signature of John Zadel as Manager of JZM, LLC was
subscribed and sworn to before me this day of , 2003.
Witness my hand and official seal.
My commission expires on:
(SEAL)
08/13/2003 2'.56 PM[kkh]F\Company Shared Folders\Decono\Annex t gmt\Zadd.doc
6
EXHIBIT A
Legal Description
7
MEMORANDUM
Department
To: Chris Gathman
From: David Tuttle .
Date: September 15, 2 03 r L .. If E U
Subject: PZ-600
The sheriff's office recommends the following improvements for this housing sub-division:
1. The sheriff's office requests that builders and developers designate an area by
the entrance of the sub-division in which to place a shelter for school children
awaiting the school bus. This area should also include a pull off for the school
bus which enables it to safely load and unload children out of the roadway in
the event the bus is unable to drive down the street due to road conditions.
This appears to have been done.
2. Either a mail distribution within the sub-division or a central drop off location
within the sub-division should be developed so that residents do not have to
cross a county roadway to obtain their mail. This appears to have been done.
3. The name of the street, "Distant Thunder" is approved by the sheriff's office.
4. A permanent sign should be placed at the entrances to the sub-division
detailing the name of the sub-division, and address. There should be a plan
developed to maintain this sign.
5. If the roadways within this sub-division are not maintained or adopted by the
county, individuals purchasing property in this sub-division should be notified
that the sheriff's office will have limited traffic enforcement powers.
6. A plan should be developed to maintain roadways within the sub-division
especially during inclement weather conditions for emergency vehicles.
7. The sheriff's office is very supportive of homeowner funded homeowners
associations. These associations provide a contact for the sheriff's office and
a means for maintaining common areas.
EXHIBIT
(O13
8. If there is an oil or gas well within this sub-division. This needs to be fenced
off in order to mitigate the potential for tampering. These facilities are known
to create an attractive nuisance for young people. Tampering not only creates
a significant danger to safety but also of environmental damage with extensive
mitigation and clean-up costs.
9. The plans for this sub-division show roadway with no sidewalks. The sheriff's
office requests that sidewalks be provided.
The Sheriff's Office lacks the ability to absorb any additional service demand without the
resources recommended in the multi-year plan provided to the Board of County
Commissioners or as indicated by growth not considered at the time the plan was
developed. I have no other comments on this proposal.
09/10/2003 11: 11 CITY OF DRC0N0 i 1970304649e N0.991 D01
c; City of Dacono
'- 512 Cherry Street • Post Office Box 186
t Dacono, Colorado 80514
�� , ak tla (303) 833-2317 • (303) 833-2319 • (303) 833-5562
(303) 833-4058 • Fax (303) 833-5528
September 10, 2003
Mr. Chris Gathman
Weld County Planning Department
1555 North 171°Ave.
Greeley, Colorado 80631
RE: Distant Thunder Subdivision (Zadel Rezoning)
Dear Chris:
The City's initial response to this referral was sent in August, and there are two current actions
that may provide additional information for the County's consideration.
The current land use designation in Dacono's Comp Plan for this property is Community
Buffer/Rural Residential which specifies one to ten acre lots. However, we have just begun the
process for an overall update to the Comp Plan, and the land uses and future development
potential of the east side properties will be a particular focus. No one knows what will result
from this process, but we anticipate considerable involvement from the property owners. Until
that process plays out, the current comp plan designation is what we live by.
The availability of sewer service is still uncertain. The City is working on a General
Improvement District, but, pursuant to a resolution approved this week, no bonds can be issued
until the Comp Plan update is done, and I think it may be unlikely that sewer service will be
available, at the earliest, before mid 2005. That said, we would, as Ken Dell indicated, always
prefer sanitary sewer over septic systems.
The final piece of updated information is that the City and Mr. Zadel have already signed a pre-
annexation agreement requiring future annexation.
Thank you for your consideration of the City's comments.
Sincerely,
Karen J. Cumbo
City Administrator
•
cc: Ken Dell, City Planner
John Zadel
EXHIBIT
6C—
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