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SURFACE USE AGREEMENT <br />This Surface Use Agreement ("Agreement") is dated and made effective this day <br />of January, 2006, and is between Kerr-McGee Rocky Mountain LLC ("KMG") with an address <br />of 1999 Broadway, Suite 3700, Denver, CO 80202, and <br />"[Gravel Company]") with an address of <br />Whereas: <br />A. [Gravel Company] is the current lessee of a sand, gravel and aggregate mining <br />lease covering that certain tract of land located in the <br />more particularly described on Exhibit "A" attached hereto, being a portion of the <br />Property, County, Colorado (hereinafter referred to <br />as the "Property"); <br />B. Surface ownership of the Property is subject to the rights of the oil and gas <br />mineral leasehold estate, a portion of which is now owned by KMG; <br />C. [Gravel Company] has received a mining permit from the State of Colorado <br />Division of Minerals & Geology ("DMG") for the purpose of <br />known as the The mined <br />out Property is to be reclaimed for use as a water storage reservoir. <br />D. KMG currently operates wells on the Property, (the "Existing <br />Wells") generally located in the described above, and has <br />the right to develop its oil and gas leasehold estate by drilling additional wells (the <br />"Future Wells" and together with the Existing Wells, the "Wells") on the Property; and <br />E. This Agreement sets forth the parties' rights and obligations regarding the <br />relationship between the development of the Property by the [Gravel Company] and <br />KMG's operation and development of its oil and gas leasehold estate underlying the <br />Property, such rights and obligations to be binding upon the parties' successors and <br />assigns. <br />Now Therefore: <br />In consideration of the mutual covenants contained herein, and other good and <br />valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the <br />parties agree as follows: <br />1. AREAS RESERVED FOR THE EXISTING WELLS AND FUTURE WELLS; <br />WELL LOCATIONS. <br />[Gravel Company] shall set aside and provide to KMG that portion of the Property <br />hereinafter referred to as the, "Oil and Gas Operations Areas", such areas being depicted on <br />Exhibit A attached hereto. The Oil and Gas Operations Areas are to be made available to KMG <br />10