settlement agreement

1

SETTLEMENT AGREEMENT

This Settlement Agreement (the Agreement) is entered into by and between the parties

identified below, and shall be effective as of March __, 2015 (the Effective Date). This

Agreement is a binding contract, the terms of which are delineated below.

1. PARTIES

1.1 Kerr-McGee Gathering LLC (Kerr-McGee);

1.2 City of Longmont, Colorado (The City);

1.3 Kerr-McGee and The City may be collectively referred to herein as the Parties.

2. DEFINITIONS

2.1 The Litigation means the lawsuit styled Kerr-McGee Gathering LLC v. City of

Longmont, Colorado, Case No. 2014CV30895, pending in the Weld County District Court, Weld

County, Colorado.

2.2 Claim or Claims mean any claims, counterclaims, and all theories of

recovery of whatever nature, whether presently known or unknown, recognized by the law of any

jurisdiction, including but not limited to actions, causes of action, demands, liabilities, suits,

administrative proceedings, payments, charges, obligations, and judgments, whether arising by

statute, in express or implied contract or in tort, at law or in equity, or under any theory of

liability that were or could have been asserted in the Litigation.

2.3 Agreement means this Settlement Agreement, including any and all exhibits,

assignments, contracts, and all other documents necessary to consummate this settlement.

2.4 Grant means the November 5, 1984 Right-of-Way Grant that affects a portion

of the Southeast Quarter of Section 29, Township 3 North, Range 68 West, 6th

P.M. in Weld

County, Colorado, to which Kerr-McGee and The City are successor parties. A copy of the

2

Grant is attached as Exhibit A to Kerr-McGees complaint in the Litigation and is recorded at

Reception 01988629 of the records of the Clerk and Recorder of Weld County, Colorado.

2.5 Infrastructure Permit means the permit granted by The City concurrently with

this Agreement, under section 13.04.300 of the Longmont Municipal Code, in response to Kerr-

McGees January 30, 2015 Infrastructure Permit Application. The Infrastructure Permit is

attached as Exhibit 3 hereto.

3. RECITALS

3.1 As the result of a dispute between the Parties concerning the Grant, Kerr-McGee

commenced the Litigation by filing its complaint against The City in the District Court of Weld

County, Colorado on September 22, 2014. Kerr-McGees complaint sought a declaratory

judgment that it was entitled to use the Grant according to its terms and to quiet title to the Grant

on that basis.

3.2 On November 14, 2014, The City filed its answer in the Litigation, specifically

denying all of Kerr-McGees claims, and alleging counterclaims against Kerr-McGee for a

declaration by the Court that the Grant had terminated and that The City would be entitled to

compensation for any further use of the Grant.

3.3 On December 5, 2014, Kerr-McGee filed its reply to The Citys counterclaims,

specifically denying that the City was entitled to any relief under them.

3.4 The Parties have now settled all of their disputes concerning, arising out of, or

relating to the Litigation and the Grant on the terms described in this Agreement.

IN CONSIDERATION of the provisions contained in this Agreement, and other good

and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the

Parties agree as follows:

3

4. SETTLEMENT TERMS AND CONDITIONS

In reliance upon the representations, warranties, payments, and covenants in this

Agreement, the Parties have settled and compromised all of their Claims, and agree and covenant

to the following:

4.1 Through this Agreement Kerr-McGee and The City intend to finally and fully

resolve and settle all of their Claims.

4.2 The Grant was established in 1984. Kerr-McGee is the successor to the

Panhandle Eastern Pipe Line Company, the original Grantee, and The City is the successor to

James P. Hartman, the original Grantor and owner of the affected property. The Grant has no

termination date, but can expire pursuant to its own terms. Kerr-McGees continued use of the

Grant is subject to the terms of the Grant, this Agreement, and the Infrastructure Permit, which is

currently limited by the City charter to a 20-year term. This ongoing requirement that Kerr-

McGee have an infrastructure permit as a prerequisite for the operation of the Grant shall survive

any termination of this Agreement, and cannot be avoided, cancelled, rescinded, discharged, or

otherwise voided or left unperformed for any reason. At the expiration of 20 years from the date

of the Infrastructure Permit, and thereafter at the expirations of any renewed permits, Kerr-

McGee may request that The City renew the Infrastructure Permit. This request shall be made

within a reasonable time, but in any case no less than six months prior to the expiration of the

Infrastructure Permit, and shall include an offer of fair market value compensation for the

additional term of access to the property affected by the Grant. At that time, The City shall

review Kerr-McGees compliance with the terms and conditions of the Grant, this Agreement,

and the Infrastructure Permit. Unless Kerr-McGee has materially breached the terms and

conditions of the Grant during the term of the existing permit, or has materially breached this

4

Agreement or the Infrastructure Permit, the Infrastructure Permit shall be renewed, provided that

the Parties have agreed to the fair market value compensation. Any renewal shall be subject to

and consistent with the City charter and Code then in effect, including provisions affecting the

period and conditions for an Infrastructure Permit; provided, however, that the Infrastructure

Permit shall be renewed for the maximum period allowed by the City charter and Code

applicable at that time if less than or equal to 20 years. The City does not bind itself to renew the

Infrastructure Permit, but shall comply with the terms of this Agreement and shall not otherwise

unreasonably refuse to renew the Infrastructure Permit.

4.3 The renewal shall be subject to the terms and conditions of the Grant, except as

modified or amended by this Agreement and the Infrastructure Permit. The Infrastructure Permit

shall incorporate the terms of the Grant, which provides for a right-of-way no more than fifty

(50) feet wide containing no more than three (3) pipelines. Any future infrastructure permit shall

incorporate all terms in the Infrastructure Permit that limit or condition the operation of the

Grant. In the event of a conflict between this Agreement and either the Grant or an Infrastructure

Permit, the terms of this Agreement shall control.

4.4 Within ten (10) business days following Kerr-McGees receipt of The Citys

signed approval of the Infrastructure Permit, Kerr-McGee shall pay The City the amount

described in Section 4.6 of this Agreement, and the Parties shall sign and cause to be filed a

Joint Motion to Voluntarily Dismiss Plaintiff Kerr-McGee Gathering LLCs Claims and

Defendant City of Longmont, Colorado Counterclaims in a form substantially similar to that

attached hereto as Exhibit 1.

5

4.5 Promptly after the documents described in Section 4.4 herein have been signed,

the Parties shall record a Memorandum of Agreement in the form attached hereto as Exhibit 2

in the records of the Clerk and Recorder of Weld County, Colorado.

4.6 Within ten (10) business days following Kerr-McGees receipt of The Citys

approval of the Infrastructure Permit, Kerr-McGee shall pay a total of $142,530.33 to The City,

calculated as follows:

a. $43,245.30 for the total length of the pipelines on City property (1,441.51

feet x three pipelines x $10/lineal foot = $43,245.30). The amount paid to

The City for the length of the pipelines shall be adjusted based on the as

installed length of the pipelines;

b. $66,185.03 for 1.655 acres used for the initial twenty (20) year period of

the Infrastructure Permit (1.655 acres x $40,000.00/acre = $66,185.03;

c. $16,600.00 for a temporary construction easement (0.83 acres x

$20,000.00/acre = $16,600.00);

d. $16,500.00 for removal and replacement of the cottonwood trees within

the 50-foot right-of-way identified in the Infrastructure Permit (110 caliper

inches = $16,500.00). The City must approve the removal of other trees

by Kerr-McGee, which shall be compensated on the same basis. This

payment satisfies Chapter 13.24 of the Longmont Municipal Code.

Kerr-McGees payment to The City pursuant to this Section 4.6 is a compromise amount

made for the purpose of setting the Litigation and resolving the Parties Claims. The Parties

agree that the amount of this payment shall have no bearing on what is considered fair market

value compensation for any future renewals of the Infrastructure Permit.

6

4.7 Any dispute arising under this Agreement relating solely to the fair market value

of any additional term during which Kerr-McGee is allowed access to and use of the property

affected by the Grant (Arbitrable Dispute) shall be referred to and resolved by binding

arbitration in Denver, Colorado by one arbitrator, in accordance with the rules and procedures of

the Judicial Arbiter Group (JAG). Other disputes will be arbitrated only if the parties agree to

do so in a separate writing. If there is any inconsistency between this provision and any statutes

or rules, this provision shall control. Arbitration shall be initiated within the applicable time

limits set forth in this section and not thereafter or, if no time limit is given, within the time

period allowed by the applicable statute of limitations, by one party (Claimant) giving written

notice to the other party (Respondent) and to JAG, that the Claimant elects to refer the

Arbitrable Dispute to arbitration. The parties shall jointly choose the arbitrator, but if they

cannot agree on an arbitrator within thirty (30) days after the Claimants notice to the

Respondent, such arbitrator shall be appointed by JAG. Claimant and Respondent shall bear

their own attorneys fees and costs and shall each pay one-half of the compensation and expenses

of the arbitrator. The arbitrator must be a neutral party who has never been an officer, director,

contractor, employee or agent of the Parties or any of their affiliates, must have not less than ten

(10) years experience practicing law relating to oil and gas or land appraisal, and must have a

formal legal education in his or her area of expertise. The Parties shall have limited rights of

discovery as determined by agreement of the Parties or the arbitrator. Time shall be of the

essence, and the hearing shall be commenced within thirty (30) days after the selection of the

arbitrator. The Parties and the arbitrator shall proceed diligently and in good faith in order that

the arbitral decision shall be made as promptly as possible, but no later than forty-five (45) days

following the close of any hearing. The interpretation, construction and effect of this agreement

7

to arbitrate shall be governed by the Laws of Colorado. In all arbitration proceedings the Laws

of Colorado shall be applied, without regard to any conflicts of law or principles thereof. All

statutes of limitation and of repose that would otherwise be applicable shall apply to any

arbitration proceeding. The arbitrator shall not have the authority to grant or award damages.

His or her sole role shall be to determine the fair market value of any additional term during

which Kerr-McGee is allowed access to and use of the property affected by the Grant. The fair

market value shall not be reduced due to the fact that the pipelines and related equipment may

have already been installed on the affected property.

4.8 The pipelines allowed by the Infrastructure Permit will transport only oil, gas,

associated hydrocarbons, and water. Kerr-McGee agrees to allow The City or its agents, lessees,

or other designees to transport any oil, gas, associated hydrocarbons, and water from minerals or

property owned by The City in Kerr-McGees pipeline system on commercially reasonable

terms, and in exchange for fair market value compensation for the use of its pipeline system.

4.9 Kerr-McGee shall provide The City with information describing its current

guidelines for the installation, operation, maintenance, inspection, testing and upgrades to or

repairs of its pipeline system, and its current health, safety and environmental guidelines for the

pipeline system. Kerr-McGee agrees to follow such guidelines, and it shall provide a copy of all

inspection, testing and maintenance reports for the pipelines covered by the Infrastructure Permit

to The City upon request.

4.10 Kerr-McGee shall immediately notify The City in the event of any threatened or

actual leak, rupture, or failure of any kind within the pipelines or the areas covered by the

Infrastructure Permit and shall immediately shut down and repair any pipeline that has ruptured,

failed, is leaking, or where rupture, failure or leakage is imminent. Kerr-McGee shall commence

8

clean-up operations within twenty-four (24) hours after it becomes aware of any pipeline leak,

rupture or other pollution created by its operations, and shall complete said cleanup to achieve

actual or substantially pre-contamination conditions, and in conformity with all federal, state,

and local contamination standards with diligence and without unreasonable interruption.

4.11 Kerr-McGee agrees to notify The City in writing at the address shown below at

least ten (10) days prior to any hearing concerning the pipelines approved in the Infrastructure

Permit or Kerr-McGees uses under the Infrastructure Permit before the Colorado Public Utilities

Commission or any other agency, board or authority with jurisdiction over such matters.

4.12 All of Kerr-McGees operations, obligations and uses under the Grant, this

Agreement, and the Infrastructure Permit, whether express or implied, shall be subject to all

applicable and valid laws, rules, regulations, and orders of The City and any other governmental

authority having jurisdiction. Kerr-McGee also agrees to comply with all valid and applicable

city, local, state, and federal laws and regulations governing its operations.

4.13 Kerr-McGee shall not have the right to construct, maintain, or operate any facility

other than those allowed by the Grant, this Agreement, or the Infrastructure Permit.

4.14 Kerr-McGee shall be responsible for and shall indemnify and hold The City

harmless from any losses, claims, damages, demands, suits, causes of action, fines, penalties,

expenses and liabilities, including without limitation attorneys fees and other costs associated

therewith, caused by or resulting from Kerr-McGees ownership, operations, or activities under

the Grant, this Agreement, and the Infrastructure Permit, no matter when or by whom asserted

(collectively referred to as Claims). Kerr-McGee shall defend, indemnify, and hold The City,

its City Council and City Council members, and The Citys officers, employees, agents,

contractors, attorneys, managers, and directors harmless from all Claims. Kerr-McGee shall also

9

indemnify and hold The City harmless for any Claims asserted by governmental bodies or other

third parties for pollution or environmental damage of any kind, caused by or resulting from

Kerr-McGees ownership, operations, or activities under the Grant, this Agreement, and the

Infrastructure Permit, and for all clean-up and remediation costs, fines and penalties associated

therewith, including but not limited to any claims arising from Environmental Laws or relating to

asbestos or naturally occurring radioactive material. Environmental Laws shall mean any

laws, regulations, rules, ordinances, or order of any governmental authorities, 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. 6109 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 et seq.), or other similar laws.

4.15 There shall be no above-ground equipment or appurtenances within the

Infrastructure Permit area after installation of the pipelines, except those provided for therein or

to which The City grants consent in writing prior to their installation.

4.16 Kerr-McGee shall provide no less than thirty (30) days advanced written notice of

any work that would affect the surface of the lands that are subject to the Grant and the

Infrastructure Permit. Kerr-McGee shall create only the minimum amount of surface disturbance

necessary for the construction of facilities allowed by the Grant and the Infrastructure Permit.

Topsoil shall be conserved during excavation, stockpiled, and reused as cover on disturbed areas

to facilitate regrowth of vegetation. Kerr-McGee shall promptly reclaim, reseed, and replant any

disturbed areas to The Citys reasonable satisfaction and in compliance with all City regulations,

10

using vegetation similar to the vegetation on contiguous lands unless otherwise directed by The

City. Kerr-McGee agrees to use its best efforts to complete the installation of any pipelines and

other facilities allowed by the Grant and the Infrastructure Permit, and to reclaim the surface of

any disturbed lands, by June __, 2015. Kerr-McGee shall provide a reclamation bond in a form

and amount acceptable to The City to assure that all required reclamation is completed.

4.17 Kerr-McGee and its contractors and agents shall access the area covered by the

Infrastructure Permit only from Weld County Road 5, and shall obtain any ditch crossing

approvals needed and provide copies of all such approvals to The City.

4.18 Kerr-McGee will schedule and perform construction and maintenance to

minimize crop loss to The City and its tenants and agents. Kerr-McGee shall pay reasonable

damages for crop loss on account of its operations to The City for a period of at least two (2)

years after the completion of any construction or maintenance, and for a longer period if

disturbed crops are not fully restored during those two years.

4.19 The Parties shall, from time to time and upon reasonable request, execute,

acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such

instruments, and take such other action, as may be necessary or advisable, to carry out their

respective obligations and effectuate the transaction contemplated by this agreement.

4.20 The Director or General Manager of The Citys Public Works and Natural

Resources Department may require Kerr-McGee to remove or relocate its pipelines approved in

the Infrastructure Permit at Kerr-McGees expense upon 90 days written notice, for the

following purposes:

a. Change in street grade;

b. Relocation or vacation of the street;

11

c. To improve, repair, construct, reconstruct or maintain the street or utilities;

d. Installation, removal or relocation of utilities or other public apparatus;

e. Burial of above ground utilities or public apparatus; or

f. Public health or safety concerns.

4.21 In case of an emergency, the Director or General Manager of The Citys Public

Works and Natural Resources Department may require Kerr-McGee, at Kerr-McGees expense,

to relocate the infrastructure without providing advance written notice.

4.22 Kerr-McGee shall, at its expense, remove or relocate the infrastructure within a

reasonable time from the date of notification, but no later than three working days before The

City intends to commence its work. In case of emergencies, Kerr-McGee shall, at its expense,

immediately remove or relocate the infrastructure as the Director or General Manager of The

Citys Public Works and Natural Resources Department may require. If Kerr-McGee fails to

remove or relocate the infrastructure, the city may perform such work at Kerr-McGees expense.

Kerr-McGee shall then reimburse the city for all expenses within 30 days after receipt of a

written invoice.

4.23 Under the circumstances described in the foregoing Sections 4.20 through 4.22,

the Director or General Manager of The Citys Public Works and Natural Resources Department

may only require that Kerr-McGee relocate the pipelines permitted under the Infrastructure

Permit to a different depth or to a different location within the property affected by the Grant,

and may not require Kerr-McGee to relocate the pipelines to another property entirely.

12

5. RELEASES AND COVENANTS NOT TO SUE

5.1 Kerr-McGee hereby releases The City and its City Council and all City Council

Members, and all City employees, managers, representatives, agents, attorneys, consultants,

successors and assigns from each and all Claims, whether known or unknown, and whether

foreseen or unforeseen, which Kerr-McGee has ever had, or now has, against The City and The

Citys Council and all City Council Members, and all City employees, managers, representatives,

agents, attorneys, consultants, successors and assigns, arising from or related to the events and

transactions that are the subject matter of the Litigation.

5.2 The City hereby releases Kerr-McGee, as well as any of Kerr-McGees respective

officers, directors, trustees, shareholders, partners, subsidiaries, affiliates, employees,

representatives, agents, attorneys, consultants, successors and assigns from each and all Claims,

whether known or unknown, and whether foreseen or unforeseen, which The City has ever had,

or now has, against Kerr-McGee, or any of Kerr-McGees respective officers, directors, trustees,

shareholders, partners, subsidiaries, affiliates, employees, representatives, agents, attorneys,

consultants, successors and assigns, arising from or related to the events and transactions that are

the subject matter of the Litigation.

5.3 Each Party hereby covenants and agrees not to sue the other Party with respect to

any Claim released in this Agreement. Notwithstanding the foregoing sentence, the Parties may

sue to enforce the terms of this Agreement.

5.4 Kerr-McGee shall comply with all requirements of the Infrastructure Permit as

well as any valid provisions of the Longmont Municipal Code that may apply to Kerr-McGees

operations under the Infrastructure Permit. Upon completion of the activities authorized by the

Infrastructure Permit, Kerr-McGee shall provide The City with an as built schematic of the

13

installed pipelines and final configuration of the Infrastructure Permit. Upon build out of any

pipeline or related facility, Kerr-McGee shall provide physical location markers for all such

pipelines and facilities. The original Infrastructure Permit shall be retained by The City and a

copy shall be provided to Kerr-McGee.

6. CONSIDERATION ACKNOWLEDGED

6.1 The Parties acknowledge that the provisions of this Agreement provide mutually

sufficient consideration for any and all rights, duties, or obligations created in the provisions of

this Agreement. The Parties released under this Agreement do not admit liability of any sort, and

the Parties have made no agreement or promise to do any act or thing not set forth in this

Agreement. The Parties understand that this Agreement is made as a compromise to avoid the

expense and uncertainty of litigation, and to terminate all controversies and claims for injuries,

damages, costs, or losses because of any cause of action that could have been asserted by either

Party against the other.

7. REPRESENTATIONS AND WARRANTIES

7.1 The Parties represent that they have carefully read and fully understand this

Agreement, that they now execute this Agreement voluntarily and with understanding of its force

and effect, and that they execute this Agreement without reliance upon custom, course of

dealing, or other agreements with each other or with third parties.

7.2 The Parties further represent that they have had an opportunity and have the

means to have had this Agreement reviewed by legal counsel of their own choosing, and that

they have in fact had their respective legal counsel review the Agreement on their behalf.

7.3 The Parties further represent that they have not assigned, conveyed, or

encumbered in any way, or agreed to assign, convey, or encumber in any way, any of their

14

interest in the Grant, this Agreement, the Infrastructure Permit or in any of the Claims released

herein, or any of the interests being conveyed under the terms of the Agreement.

7.4 Each Party represents that it has obtained any consent, approval, authorization, or

order of any court, governmental authority, person, or entity that is required for the execution,

delivery, and performance of this Agreement.

7.5 Each Party represents that it has the power and authority to enter into this

Agreement, that all documents delivered pursuant to same, to which it is a party, are valid,

binding, and enforceable upon it, and that the person or entity acting on behalf of the Party in

executing this Agreement has the authority to do so.

8. AGREEMENT BINDING ON PARTIES AND SUCCESSORS AND ASSIGNS

8.1 This Agreement shall be binding upon and shall inure to the benefit of the Parties

and their past and present affiliated companies, parent companies, parent corporations, sister

companies, sister corporations, subsidiaries, shareholders, partners, owners, past and present

attorneys, officers, directors, employees, agents, consultants, representatives, successors, heirs,

and assigns.

9. ENTIRE AGREEMENT

9.1 This Agreement represents the entire agreement between the Parties with respect

to the matters referred to herein, and supersedes all prior agreements, negotiations, or statements

with respect to the matters referred to herein, and shall not be modified or affected by any offer,

proposal, statement, or representation, either oral or written, heretofore made by or for either

Party in connection with the negotiation of the terms hereof. This Agreement may not be

modified except in writing executed by both Parties.

15

9.2 If any provision of this Agreement is held by a court of competent jurisdiction to

be invalid, void, or unenforceable, the remaining provisions shall nevertheless survive and

continue in full force and effect without being impaired or invalidated in any way.

10. EVENT OF BREACH

10.1 Any Party who asserts that this Agreement has been violated or breached shall

inform the other Party of the specifics of any breach, after which the non-notifying Party shall

have thirty (30) days to remedy the alleged breach or violation.

10.2 In any action for breach or termination of this Agreement, or to otherwise enforce

any provision of this Agreement, the prevailing Party shall be entitled to its reasonable and

necessary attorneys fees.

10.3 The City may revoke the Infrastructure Permit for any material breach of this

Agreement by Kerr-McGee.

11. GOVERNING LAW

11.1 This Agreement shall be governed by and construed in accordance with the laws

of the State of Colorado, irrespective of Colorados choice of law provisions. Any litigation

arising out of or relating to this Agreement shall be brought and maintained exclusively in the

courts of Weld County, Colorado.

12. ADDRESSES OF THE PARTIES

12.1 All notices or communications concerning or required by this Agreement shall be

sent to:

City of Longmont

408 Third Avenue

Longmont, CO 80501

and

16

Longmont City Attorney

408 Third Avenue

Longmont, CO 80501

Kerr-McGee Gathering LLC

1099 18th Street, Suite #1800

Denver, CO 80202-1918

Attention: Midstream Surface Land Department

and


1201 Lake Robbins Drive

The Woodlands, TX 77380

Attention: Office of General Counsel

13. COUNTERPARTS

13.1 This Agreement may be executed in any number of identical counterparts, each of

which shall be deemed an original for all purposes, and all of which shall constitute, collectively,

one agreement. For purposes of execution, facsimile signatures and signatures otherwise

transmitted by electronic means shall constitute original signatures.

17

IN WITNESS WHEREOF, the Parties have signed and acknowledged this Agreement

below:

KERR-McGEE GATHERING LLC

A Colorado Limited Liability Company

By:

Name:

Title:

Date:

CITY OF LONGMONT, COLORADO

By:

Name: Harold Dominquez

Title: Longmont City Manager

Date:

By:

Name: Eugene Mei

Title: Longmont City Attorney

Date:

DISTRICT COURT, WELD COUNTY,

COLORADO

901-9th

Avenue

Greeley, Colorado 80631

___________________________________________

Plaintiff: KERR-MCGEE GATHERING LLC,

a Colorado limited liability company

Defendant: CITY OF LONGMONT,

COLORADO.

___________________________________________

Eugene Mei, Esq. City Attorney

Attorney Reg. No.: 33442

E-Mail: [email protected]

Daniel E. Kramer, Assistant City Attorney



City of Longmont

Civic Center Complex

408 3rd Avenue

Longmont, CO 80501

Telephone: 303-651-8616

Facsimile: 303-651-8914

Phillip D. Barber, Esq.

1675 Larimer Street, Ste. 620

Denver, Colorado 80202

Telephone: (303) 894-0880

Facsimile: (720) 904-5755

E-mail: [email protected]


COURT USE ONLY

______________________________

Case No.: 2014 CV 30895

Division: 5

JOINT MOTION TO VOLUNTARILY DISMISS PLAINTIFF KERR-MCGEE

GATHERING LLCS CLAIMS AND DEFENDANT CITY OF LONGMONT,

COLORADOS COUNTERCLAIMS

mailto:[email protected]:[email protected] Text

lyonslTypewritten TextExhibit 1

Plaintiff Kerr McGee Gathering LLC (Kerr-McGee) and Defendant City of Longmont,

Colorado (City of Longmont) have entered into an agreement settling and compromising Kerr-

McGees claims against the City of Longmont and the City of Longmonts claims against Kerr-

McGee. The parties therefore file this Joint Motion and ask this Court to dismiss Kerr-McGees

claims against the City of Longmont with prejudice pursuant to Colo. R. Civ. P. 41(a)(2), and to

dismiss the City of Longmonts counterclaims against Kerr-McGee with prejudice pursuant to

Colo. R. Civ. P. 41(a)(2). The parties respectfully request that this Court enter an Order in the

form attached hereto, and dismiss all claims and counterclaims asserted in this case with prejudice.

Each party shall bear its own costs and attorneys fees.

DATED this _____ day of March, 2015.

Respectfully submitted,

KERR-MCGEE GATHERING LLC

DAVIS GRAHAM & STUBBS LLP

/s/ Jonathan W. Rauchway

Jonathan W. Rauchway, No. 34,786

ATTORNEYS FOR THE PLAINTIFF


Eugene Mei

City Attorney

Daniel E. Kramer

Assistant City Attorney

PHILLIP D. BARBER, P.C.

By: _____________________________

Phillip D. Barber

ATTORNEYS FOR THE DEFENDANT

This document was filed electronically pursuant to C.R.C.P. 1-26. The original signed document

is on file at the offices of Phillip D. Barber, P.C.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing JOINT MOTION

TO VOLUNTARILY DISMISS PLAINTIFF KERR-MCGEE GATHERING LLCS

CLAIMS AND DEFENDANT CITY OF LONGMONT, COLORADOS

COUNTERCLAIMS, was served this _____ day of March, 2015, by ICCES File and Serve on

the following:

Michael J. Gallagher, Esq.

Jonathan W. Rauchway, Esq.

John M. Bowlin, Esq.

Davis Graham & Stubbs, LLP

1550-17th Street, Ste. 500

Denver, CO 80202

______________________________________

DISTRICT COURT, WELD COUNTY,

COLORADO

901-9th

Avenue

Greeley, Colorado 80631

___________________________________________

Plaintiff: KERR-MCGEE GATHERING

LLC, a Colorado limited liability

company

Defendant: CITY OF LONGMONT,

COLORADO.

___________________________________________

Eugene Mei, Esq. City Attorney



Daniel E. Kramer, Assistant City Attorney



City of Longmont

Civic Center Complex

408 3rd Avenue

Longmont, CO 80501

Telephone: 303-651-8616

Facsimile: 303-651-8914

Phillip D. Barber, Esq.

1675 Larimer Street, Ste. 620

Denver, Colorado 80202

Telephone: (303) 894-0880

Facsimile: (720) 904-5755

E-mail: [email protected]


COURT USE ONLY

______________________________

Case No.: 2014 CV 30895

Division: 5

ORDER GRANTING JOINT MOTION TO VOLUNTARILY DISMISS ALL CLAIMS

OF PLAINTIFF KERR-MCGEE GATHERING LLC

AND DEFENDANT CITY OF LONGMONT, COLORADO

mailto:[email protected]:[email protected]

The Court, having considered the Joint Motion to Voluntarily Dismiss Plaintiff Kerr-

McGee Gathering LLCs Claims and Defendant City of Longmont, Colorado, Counterclaims, is of

the opinion that such motion should be GRANTED.

It is therefore ORDERED that this action, including all claims and counterclaims, is

DISMISSED with prejudice, and each party shall bear its own costs and attorneys fees.

DATED this _____ day of March, 2015.

_______________________________________

DISTRICT COURT JUDGE

1

MEMORANDUM OF SETTLEMENT AGREEMENT

1. This Memorandum of Settlement Agreement (hereinafter called Memorandum) shall be

effective commencing March__, 2015, and is by and between Kerr-McGee Gathering LLC

(Kerr-McGee) and the City of Longmont, Colorado (The City). Kerr-McGee and The

City are collectively referred to herein as the Parties.

2. The Parties have entered into a Settlement Agreement providing for the resolution of their

dispute and for the continuation of that certain November 5, 1984 Right-of-Way Grant that

is recorded at Reception 01988629 of the records of the Clerk and Recorder of Weld

County, Colorado, which affects a portion of the Southeast Quarter of Section 29, Township

3 North, Range 68 West, 6th P.M., Weld County, Colorado (Grant). The Parties have

agreed that use of the Grant may continue for an initial period of twenty (20) years from

__________, in accordance with and subject to the terms of the Grant, the Settlement

Agreement, and Kerr-McGees Infrastructure Permit on file with The City.

3. Among other things, the Settlement Agreement provides terms and conditions relating to

continuation and termination of the use of the rights conferred by the Grant. Should any

person or firm desire additional information regarding the Settlement Agreement or wish to

inspect a copy of the Settlement Agreement, said person or firm should contact The City.

4. In the event of termination or expiration of the Grant, the Settlement Agreement, or the

Infrastructure Permit, The City shall file of record a release and termination on behalf of all

parties concerned.

5. It is understood and agreed by the Parties that if any part, term, or provision of this

Memorandum is held by a court exercising valid jurisdiction to be illegal or in conflict with

any law of the State of Colorado, the validity of the remaining portions or provisions shall

not be affected, and the rights and obligations of the Parties shall be construed and enforced

as if the Memorandum did not contain the particular part, term, or provision held to be

invalid.

6. This Memorandum shall be binding upon and shall inure to the benefit of the Parties and to

their respective heirs, devisees, legal representatives, successors, and assigns. The failure of

one or more persons owning an interest in the Grant to execute this Memorandum shall not


2

in any manner affect the validity of the Memorandum as to those persons who have executed

this Memorandum.

7. A party having an interest in the Grant can ratify this Memorandum by execution and

delivery of an instrument of ratification, adopting and entering into this Memorandum, and

such ratification shall have the same effect as if the ratifying party had executed this

Memorandum or a counterpart thereof. By execution or ratification of this Memorandum,

such party hereby consents to its ratification and adoption by any party who may have or

may acquire any interest in the Grant.

8. This Memorandum may be executed or ratified in one or more counterparts and all of the

executed or ratified counterparts shall together constitute one instrument. For purposes of

recording, only one copy of this Memorandum with individual signature pages attached

thereto needs to be filed of record.


By:______________________________

Name:____________________________

Title:_____________________________

KERR-McGEE GATHERING LLC

By:_______________________________

Name:_____________________________

Title:______________________________

3

STATE OF COLORADO )

)

City and County of Denver )

Subscribed and sworn to before me this _____ day of March, 2015, by

______________________, ______________________ of the City of Longmont, Colorado.

_______________________________

Notary Public

My commission expires: _______________

STATE OF COLORADO )

)

City and County of Denver )

Subscribed and sworn to before me this _____ day of March, 2015, by

______________________, ______________________ of Kerr-McGee Gathering LLC.

_______________________________

Notary Public

My commission expires: _______________

Public Works & Water Utilities Transportation Engineering and Construction Inspection 408 Third Avenue Longmont, CO 80501 (303) 651-8304 Fax (303) 651-8696 http://www.ci.longmont.co.us

Term Restriction:

INFRASTRUCTURE PERMIT APPLICATION NO. 15-15

This permit will expire twenty years from the date of issuance. The applicant must reapply to the City of Longmont for a right to use the public right of way beyond this date. (City Charter- Section 12.4)

Applicant Infonnation:

Name of Applicant:

Name of Contact:

Business Address:

Business Phone:

Relation to Other Documents


Trevor Payne

1099 18th Street, Suite 1800 Denver, CO. 80202

Direct: (720) 929-644

This Infrastructure Permit is granted concurrently with the execution of the Settlement Agreement between the City of Longmont and the Applicant (''Settlement Agreement'') and is subject to its terms.

This Infrastructure Permit hereby incorporates the terms of the Right-of-Way Grant, to which the City and the Applicant are successor parties, and which is recorded at Reception No. 01988629 of the records of the Clerk and Recorder of Weld County, Colorado (''Grant''). Specifically, the right-of-way on which infrastructure is permitted shall not exceed fifty feet in width and shall contain no more than three pipelines total.

Any future infrastructure permit shall be subject to the terms of the Settlement Agreement, and shall incorporate all terms herein that limit or condition the operation of the Grant.

The City may revoke this Infrastructure Permit for any material breach of the Settlement Agreement by the Applicant.

Location of Improvements

City of Longmont Lot B AMD RE-459 (Crossing of Weld County Road 5)

SE 1/4 of Section 29, T3N-R68W 6TH PM, Weld County, Colorado

Description of Improvements

Installation of a 20" HOPE water pipeline, 20" steel gas pipeline and 12" steel oil pipeline

lyonslTypewritten Text





Permit Requirements:

The owner and contractor shall comply with all laws, regulations, codes and ordinances applicable to the current City of Longmont Design Standards and Construction Specifications. General requirements as listed under section 100, specifically sub-section 112.00 Trench Backfill & Compaction requirements (see attached). In addition to requirements listed in section 100, the applicant will have on site and available additional top soil to backfill any trench settlement that may occur over the warranty period.

Reseeding restoration within construction I easement areas (see attached native seed mix)

Required Documents to be submitted with Application:

Construction Plan: Plans approved with the following conditions

A "Work in the R-0-W permit and traffic control plan is required prior to start of work including any pothole locations.

Work notification to area residents and businesses shall be in place 48 hours prior to start of work.

Unless otherwise approved, all proposed utility installations must maintain a minimum horizontal clearance of 5 feet and a minimum vertical clearance of 18" inches from the existing water mains, sanitary sewer mains and manholes.

Veritv vertical depth of the existing utilities. water mains and sewer mains with pothole detection.

See any additional attachments included within City of Longmont R-0-W permit. Traffic control plans must be provided to indicate all levels of construction including

pothole locations within the street right-of-way. Repair any disturbed landscaping. All work in the right-of-way shall be in accordance with City of Longmont Municipal Code

13.04 "Work in City Property", including section 13.04.300 "Infrastructure Permit" and in accordance with the City of Longmont Public Improvement Design Standards and Construction Specifications.

Utility Locates: Utility locates to be performed through:

Utility Notification Center City of Longmont Water/Wastewater City of Longmont Storm Drainage

1-800-922-1987 (303) 651-8468 (303) 651-8416

Insurance Reauirements: Certificate of Liability of Insurance, listing the City of Longmont as additionally insured.

Work In Right of War Permit Required For Construction: Contractor must obtain a Work in the Right of Way Permit prior to start of construction. Permit fees will be charged in accordance with City of Longmont Municipal Code chapter 13.04.

13.37.180 Penalty-Civil remedy.

A. The court shall fine any person violating this chapter by conducting an unauthorized activity or use upon public property without a required permit, or otherwise in violation of this chapter, up to five hundred dollars. B. The city attorney may also seek any appropriate remedy for damages or equitable relief to secure compliance with this chapter and to preserve the municipal interest in public property. (Ord. 0-94-61 9 (part): amended during 1993 recodification; Ore/. 0-86-59 1

12.4. - Term, compensation, restriction.

No franchise, lease, or right to use the streets, or the public places or property of the city, shall be granted for longer than 20 years. Every grant of a franchise shall fix the amount and manner of payment of the compensation to be paid by the grantee for the use of the same, and no other compensation of any kind shall be exacted for such use during the life of the franchise. This provision shall not exempt the grantee from any lawful taxation upon his or its property, nor from any license, charges, or other impositions levied by the council, not levied on account of the use granted by the franchise.

Infrastructure Permit fees:

Total $ ____,T-=8=-D-

I APPUCANT: DATE:

PERMIT APPROVED:

Nick Wolfrum - City Engineer

CITY OF LONGMONT LOT 8 AMD RE -459

SE1/4 SECTION 29 T3N R68W 6TH PM

P.O.B.

L1 ~~~~f:e-- Al.UII. CAP

PI.S 18982 SURVEY TIE TO P.O.B. s 89'10'54" w 114.04') I-- 60' R.O.W.

"' a: ~

I

I . N "! It)

City of Longmont 3N-68W

Cq:>yri!Jlt 2011 Weld County Gc:M!mrrent All rights resaved. Ttu May 29 2014 07:42:29 AM

Lease/ Name: MS Longmont Reinforcement West (1-25 West) ID: 8413059W TWN: 3N RNG: 67W SEC: 27

Land Use: Agric/Pasture Inspection Date:

Runoff Risk: Low Install

- - Incomplete - -Pipe Gathering Une StockPile - Dirt Road 181m 0 PcMtoo-let - Paved Road ~Separator Topographic ._

~ c::::::J CUlvert Slope Aflr er-Mlltch

Spray on Water c::::::J 111111111 Adlloslvo Sump

e Wollhead ~ cattleguard

Hay Bale

Benn

Windrow Straw

wattle Slit Fence Equipment

Storage

AFE# 2087655.PCE

Receiving Waters: Various Bore Locations and Ditches

Site will be Re-Graded & ISe1adEtd Where Appropriate

Construction Activity Is Completed

wattle

Area of disturbance defined by BMP

placement. Construction boundary approx. 10'

outside of BMP placement.

NOT TO

sc~

Engineer, cleanup must be performed within 600 linear feet of pipe installation. NO TRENCH SHALL BE LEFT OPEN OVERNIGHT WITHOUT PROPER PROTECTION AND APPROVAL OF THE ENGINEER. These requirements apply for all mains and service lines. Backfilling of trenches shall comply with these specifications, and with applicable design and soils reports.

112.05 BACKFILL MATERIAL

All backfill material shall be free from debris, cinders, ashes, refuse, vegetable or organic material, boulders, rocks or stones, frozen material, broken bituminous or concrete materials, or other material that in the opinion of the Engineer is unsuitable. Material containing stones up to six (6) inches in their greatest dimension may be used, unless otherwise specified.

Use of rocks, stones or boulders within the allowable size limits is subject to their not interfering with proper compaction.

Masses of moist, stiff clay and washed rock shall not be used as backfill material.

1. Use of excavated material as backfill

When the type of backfill material is not indicated on the drawings or specified, the Contractor may backfill with the excavated material, provided that such material consists of loam, clay, sand, gravel, or other materials that, in the opinion of the Engineer, are suitable for backfilling. If excavated material is indicated on the drawings or specified for backfill, and there is a deficiency due to a rejection of part thereof, the Contractor shall furnish the required amount of sand, gravel, or other approved material.

2. Use of imported material as backfilll

If imported backfill is not required on the drawings, and In the opinion of the Engineer should be used In any part of the work, the Contractor shall furnish and backfill with approved material as directed by the Engineer. All material shall be free from frozen matter, stumps, roots, brush, other organic matter, cinders or other corrosive material, debris, broken asphalt and concrete, and any other material that is not suitable in the opinion of the Engineer. Trench backfill material shall be free from any rocks or stones which are larger than six ( 6) Inches, in any dimension. Rocks or stones which are larger than three (3) inches, in any dimension, shall not be placed within one foot of pavement subgrade, or within one foot of the finished surface of unpaved areas. Rocks or stones larger than two (2) Inches in diameter may not be used for trench backfill of irrigation lines.

3. Non-shrinkable trench backfill (such as Flowfill, Flashfill, or other approved material).

Non-shrinkable trench backfill shall meet the following requirements:

Minimum (twenty) 28 day strength: 60 psi

Maximum (twenty) 28 day strength: 100 psi

Non-shrinkable trench backfill shall be adequately vibrated to ensure consolidation.

General - 36 - Effective July 1, 2007

112.06 BACKFILLING IN FREEZING WEATHER

Backfilling shall not be done in freezing weather except by permission of the Engineer, and it shall not be made with frozen material. No fill shall be made where the material already in the trench is frozen.

112.07 COMPACTION REQUIREMENTS AND TESTING

It is the responsibility of the Contractor to provide the proper means and equipment for obtaining compaction within the specified ranges. If the Engineer feels that the means or equipment is not adequate to obtain the desired results the Engineer may require specific measures to insure the desired results. One such measure may be the use of flow fill non-shrink trench backfill.

The Contractor shall retain a private, approved testing agency regularly involved in soils testing to perform required proctor and compaction tests at the Contractor's expense. Two copies of all Proctor curves and test results showing exact location of sample collection and test sites must be furnished to the Engineer for approval. Only actual test information will be submitted, estimated values will not be accepted. The Engineer shall be informed before any tests are performed and may designate areas to have checked for compaction. The results of the tests must be given to the Engineer before any compaction will be accepted.

1. Standard Proctor Tests (A.S.T.M. D698): The Contractor shall provide Standard Proctor results for compaction testing. A sufficient number of Proctor tests shall be taken so as to, in the opinion of the Engineer, adequately represent all types of soil encountered along the trench. Said tests are intended only to aid the verification of the quality of the work. Acceptable test resuHs shall not relieve the Contractor from correction or repairing of any substandard work before or during the warranty period.

2. Field Density Tests: The Contractor shall provide field compaction tests conforming to A.S.T.M. D2922 and 03017 every one (1) foot of trench depth for every two hundred (200) lineal feet of pipe installation unless otherwise specified by the Engineer. The Contractor shall provide one field compaction test per every one hundred (100) lineal feet of curbwalk and shall demonstrate that the subgrade will pass a wheel test. The Contractor shall provide two field compaction tests for each water and sewer service line. For the sewer service, the tests shall be at varying depths as required by the Inspector and located ten (10) feet from the end of the service line. For the water service, the test shall be taken when the fill is at a level of two (2) feet below the final grade; one test shall be located five (5) feet from the water main and one test shall be located two feet from the curb stop (between the curb stop and the sidewalk. The Contractor may be required to dig up portions of the trench to afford access for compaction tests below the top surface of the backfill material.

Unless otherwise required on the plans, or by the Engineer to prevent settlement or damage to existing or proposed public or private improvements, trench backfill compaction shall be to the following minimum densities indicated below:

COMPACTION ZONES

All compaction within the right-of-way shall be 95%.

All driveway areas, water and sewer service lines shall be compacted at 95%.

General - 37 - Effective July 1, 2007

No pending or jetting of trenches, or use of a hydro-hammer or any Impact type compaction Is allowed. Compaction shall be done by mechanical methods.

All material shall be compacted within plus or minus 2% of the optimum moisture content. The Contractor shall be responsible for providing a stable non-pumping subgrade. If, in the opinion of the Engineer, any portion of the subgrade is suspected of not being stable, the Engineer may require that the subgrade be proof-rolled. Proof-rolling shall be performed with equipment and in a manner acceptable to the Engineer. The Contractor shall provide any equipment required for proof-rolling. Areas found to be weak and those areas which failed shall be corrected and brought into compliance with these specifications by the Contractor.

112.08 CONSTRUCTION WATER

All water needed for approved construction use must be obtained from either a private supply or an approved tank loading facility. In no case shall construction water be obtained from a fire hydrant, unless approved by the Engineer. If the use of water from a fire hydrant is approved, the Contractor shall obtain from the City of Longmont, all required permits, materials, and equipment needed to monitor and control water use prior to accessing a fire hydrant, and shall be limited to only using the designated fire hydrant.

112.09 COMPACTION TEST FAILURE

If the required compaction is not obtained, it shall be the responsibility of the Contractor to recompact the material. In cases where there is a failure to achieve the required compaction, the Engineer may require that the backfill be removed and replaced with City approved backfill material.

A hydrostatic retest shall be required on water lines after recompaction if the hydrostatic testing had been performed prior to recompaction.

A retest of utility lines shall be required after recompaction if the testing had been performed prior to recompaction.

113.00 STORMWATER QUALITY REQUIREMENTS

113.01 GENERAL

These standards are written to establish methods for controlling the introduction of pollutants into the municipal separate storm sewer system as required by the National Pollutant Discharge Elimination System (NPDES) permit process.

The intent of this section is to present minimum requirements for the implementation and use of Best Management Practices (BMP's) for stormwater quality control within the City of Longmont. The following pages refer to the information and design guidelines presented in the Urban Storm Drainage Criteria Manual (USDCM), Volume 3, "Best Management Practices" and COOT erosion control manual.

Introduction - The City is an operator of a phase II regulated small Municipal Separate Storm Sewer System (MS4) and is required by the State of Colorado to obtain a permit to discharge stormwater. In order to comply with the permit, the City reviews and approves a Storm water Management Plan (SWMP) for sites disturbing land of one (1) acre or more (see Appendix).

General - 38 - Effective July 1 , 2007

All construction activity shall be responsible for the preservation and protection of the stormwater collection systems and other natural and developed drainage ways, which may be affected by the construction.

113.02 DEVELOPMENT PROCESS

Any construction activity that disturbs one or more acres of land and any construction activity that disturbs less than one acre but is part of a larger common plan of development as determined by the City, must obtain a Public Works Development Permit from the City and a Storm water Discharge Permit Associated with Construction Activity from the Colorado Department of Public Health and Environment (CDPHE). The Colorado Department of Public Health and Environment, Water Quality Control Division, can be reached at 303-692-3500 (htto:/lwiNw.cdohe.state.co.uslwg/PermitsUnitJwgcdpmt.html ).

Prior to any construction activity, applicants must have an approved SWMP which is a condition of issuance of the Public Works Development Permit from the City, and a Storm water Permit Associated with Construction Activities application from the Colorado Department of Public Health and Environment (CDPHE).

113.03 STORMWATER MANAGEMENT PLAN- DESIGN CRITERIA

The City shall evaluate the adequacy and appropriateness of the proposed BMP's based on their fulfillment of the previously stated guidelines and compliance with the Best Management Practices (BMP's) included in the Urban Storm Drainage Criteria Manual (USDCM), Volume 3, and CDOT erosion control manual:

1. The contents of the Storm water Management Plan shall be in accordance with the requirements of the Colorado Department of Public Health and Environment. (see appendix)

2. The design shall minimize the overall land disturbance, and maintain stormwater quality in a condition similar to historic levels.

3. Design construction phasing, to minimize soil disturbance and avoid erosion. Effective phasing should be used to minimize soil exposure between overlot grading and final grading or installation of improvements.

4. Manage stormwater flows to minimize erosion and sediment movement. This objective would include diverting concentrated flows from disturbed slopes, minimizing the length and steepness of disturbed slopes, keeping runoff velocities low, and preparing or reinforcing drainage ways and outlets to receive runoff flows.

5. Do not allow increased sediment movement off of the site. All sediment disturbed on site should be contained and either re-deposited in a more stable location, or removed from the site to the Maximum Extent Practicable.

113.04 CONSTRUCTION ACTIVITIES REQUIREMENTS

The Contractor shall satisfy all environmental quality standards imposed by law and take reasonable steps to minimize the environmental impact of the work. In compliance with applicable City, state and federal law:

General - 39 - Effective July 1 , 2007

The native seed mix for the restoration of the Kerr McGee pipeline easement.

For native areas seed mix: 20% Switchgrass 20% Big Bluestem 20% Yellow lndiangrass 10% Alkali Sacaton 10% Western Wheatgrass 10% Streambank Wheatgrass 10% Slender Wheatgrass

20 lbs. pure live seed per acre, drilled or twice as many lbs. per acre if hand broad casted

Native Grass Mulch, Required Weed Free:

Apply at a rate of two (2) tons per acre. Crimp into seed bed with disk set straight forward and two inch (2") deep. Disk mulch across slopes to prevent erosion. Mulch seed beds within 24 hours after seeding.

or

Hydromulching:

Wood cellulose fibers must become evenly dispersed when agitated in water. When sprayed uniformly on the soil surface, the fibers shall form a blotter like ground cover, which readily absorbs water and allows infiltration to the underlying soil. Cellulose fiber mulch shall be added with the proportionate quantities of water and other approved materials in the slurry tank. All ingredients shall be mixed to form a homogenous slurry. Using the color of the mulch as a metering agent, spray apply the slurry mixture uniformly over the seeded area. Apply with the specified tackafier at a rate of 120 lbs. per acre. Unless otherwise ordered for specific areas, fiber mulch shall be applied at the rate of 2000 pounds per acre.

SettlementAgreement FINALEx 1Ex 2Ex.3

settlement agreement

Documents

city of longmont

settlement agreement

llc kerrmcgee

weld county district

district court of weld

recorder of weld county

kerrmcgees complaint

kerrmcgees claims