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SURFACE USE AGREEMENT <br />This Surface Use Agreement ("Agreement") is effective this 13th day of February, <br />2008, and is between and among Spallone & Schafer Ventures, LLC ("SSV"); the Town of <br />Erie ("Erie"), a political subdivision of the State of Colorado; and Asphalt Specialties Co., Inc. <br />("ASCI") (SSV, Erie and ASCI are collectively referred to as "Surface Owners/Lessees") and <br />Kerr-McGee Oil & Gas Onshore LP ("KMG"), a subsidiary of Anadarko Petroleum <br />Corporation; Noble Energy, Inc. ("Noble") and Foundation Energy Management, LLC <br />("Foundation") (KMG, Noble and Foundation are referred to separately as "Petroleum Lessee" <br />and collectively as "Petroleum Lessees"). Surface Owners/Lessees and Petroleum Lessees are <br />referred to separately as a "party" and jointly as the " ap rties." <br />Whereas: <br />A. SSV owns property currently used for sand, gravel and aggregate mining <br />operations located in portions of the N/2 and SEA of Section 31, Township 2 North, Range 68 <br />West, Weld County, Colorado, more particularly described in Exhibit A attached hereto, and <br />hereinafter referred to as the "Property." ASCI has leased the Property from SSV, with an option <br />to purchase, in order to mine and process sand and gravel and thereafter to develop the reclaimed <br />portions of the Property for residential or other uses. <br />B. Erie will acquire title to a portion of the Property from SSV pursuant to a Contract <br />for Exchange of Property. <br />C. Erie will sublease with the right to purchase from ASCI a portion of the Property <br />pursuant to a Sublease/Purchase Agreement. <br />D. Erie intends to develop a wastewater treatment facility and reservoir on the <br />portions of the Property it presently controls or will control subsequent to the execution of this <br />Agreement and consisting of approximately 107 acres, the majority of which is in the N/2. <br />E. Surface ownership of the Property is subject to the rights of the oil and gas <br />mineral leasehold estate, interests in which are now owned by Petroleum Lessees. <br />F. ASCI has a mining permit from the State of Colorado, Division of Minerals & <br />Geology ("DMG"), to extract sand and gravel from the Property and identified as the Turnpike <br />Mining Resource. Further, following the reclamation of all or portions of the Property, ASCI <br />may develop the reclaimed portions of the Property for residential or commercial development. <br />G. Noble and Foundation currently operate nine oil and/or gas wells on the Property <br />(the "Existing Wells"), and all Petroleum Lessees have the right to drill additional wells (the <br />"Future Wells" and, together with the Existing Wells, the "Wells") on the Property. <br />H. This Agreement provides for the compatible development of the oil and gas estate <br />and the surface estate and sets forth the rights and obligations of the parties with respect to the <br />8711\23\1008866.2