HomeMy WebLinkAbout954683fitter Kecoromg please return to:
Ruby Pipeline LLC
2 N Nevada Ave 5th Fir ACCESS ROAD EASEMENT AGREEMENT
Colorado Springs. CO 80903
'C{:'535
Tt'f
THIS AGREEMENT is made and entered into this of July, 2010, between
JIMMY LEE WHITTAKER and JOYCE ANN WHITTAKER whose address is P.O. Box 536,
Kemmerer, WY 83101 -0536 "Whittaker and RUBY PIPELINE, L.L.C., a Delaware limited
liability company, authorized to do business in Wyoming, whose address is 2 North Nevada Avenue,
Colorado Springs, CO 80903, with a corporate mailing address of 1001 Louisiana Street, Houston, TX
77002 "Ruby Together Whittaker and Ruby are the "Parties."
WHEREAS, Whittaker owns real property located in Lincoln County, Wyoming; and
WHEREAS, on Whittaker's property is an existing private road approximately thirty
(30') feet in width that is commonly referred to as the Wagon Wheel Road (the "Road that
traverses the following described lands located in Lincoln County, Wyoming:
Southeast Quarter of Section 30, Township 21 North, Range 114 West. The road
is depicted on the map attached to this agreement as Exhibit A (hereinafter "the
Road and made a part hereof by this reference; and
WHEREAS, Ruby is planning to install a forty -two (42) inch natural gas high pressure
pipeline (the "Pipeline and a compressor station consisting of three (3) motor driven
compressors as originally proposed which are facilities related to the Pipeline (the "Facilities in
areas near the Road or which can be most efficiently accessed by use of the Road; and
WHEREAS, Ruby desires to use the Road to access the area where construction of the
Pipeline and related Facilities specifically described herein (together defined as "the Project
will be installed; and
WHEREAS, to access the location where the Facilities will be built and installed and the
locations where the forty -two (42) inch Pipeline will be constructed to complete the Project,
Ruby and its contractors and subcontractors have a desire to use the Road; and
WHEREAS, Ruby desires to use the Road after the Project is constructed for the
continuous operation and maintenance of the Project; and
WHEREAS, Ruby desires to enter into a non exclusive Road Agreement (the
"Agreement with Whittaker so Ruby may use the Road only for the purpose described and
pursuant to the terms and conditions of this Agreement for access to the Pipeline and Facilities;
and
WHEREAS, Whittaker is willing to enter into a non exclusive Agreement with Ruby
upon the terms and conditions set forth in this Agreement
NOW, THEREFORE, in consideration of Ten Dollars ($10.00 and more) in hand paid and of the
promises and mutual covenants set forth herein below, Whittaker does hereby grant, sell and
convey to Ruby, its successors and assigns a perpetual non exclusive right of way and easement
for the use of the Road, subject to the extinguishment clause and other promises and mutual
covenants set forth herein below:
1. It is understood and agreed that this Agreement does not and shall not extend generally
for the use of this Road by the public. This Agreement grants to Ruby, its employees,
contractors, agents, and persons, as well as firms and corporations who are actively
engaged in doing or performing work for Ruby on the Project, the right to utilize the
Road for purposes of these specific construction, operation and maintenance activities.
That shall include using the road for mobilization of all equipment necessary for the
construction, erection and installation of a compressor station at the Roberson Creek
compressor site. Said compressor station originally consists of three (3) motor driven
compressors and all related buildings, pipes, valves, and equipment attached to and part
of that compressor station. This Agreement also grants to Ruby, its employees,
Whit taker Ruby \Ruby- WagonWheelRoad 7.8.10 FINAL
Page 1 of 6
RECEIVED 8/4/2010 at 10:10 AM
RECEIVING 954683
BOOK: 751 PAGE: 535
JEANNE Wi
roil :ni ni rni 'MTV r.1 FRK KFMAAFRFR \Ary
contractors, agents, and all persons, as well as firms and corporations who are doing work
for Ruby on this Project the right to utilize the Road to access the locations where the
forty -two (42) inch natural gas high pressure pipeline is being constructed. That access
shall include the right to use the road to mobilize the equipment necessary to excavate,
construct, weld, install, and bury the Pipeline, to transport the pipe that will be used in the
construction of the Pipeline, and to rehabilitate the areas disturbed in the construction of
the Pipeline. This Agreement also grants to Ruby, its employees, contractors, agents, and
all persons, as well as firms and corporations who are doing work for Ruby on the
operation and maintenance of this Project the right to utilize the Road to access the
Project. The right described above does not grant or give to Ruby, its employees,
contractors, agents, and persons any right to use the Road at any time unless they are
acting within the scope of their employment or agency relationship on the Project.
2. Should Ruby determine the need to expand its Project by adding additional compression
at the Facility or looping this specific pipeline described above, Ruby agrees to pay
Whittaker a $400 per month construction use fee during the construction period.
Paragraphs 9 through 11 shall apply to such expansion. The amount paid shall be
adjusted annually based on the Consumer Price Index (CPI).
3. The permitted use as described above does not include use of the Road to install, access
or service any "man camp," employee housing, pipe yards, or the installation of
telephone lines, optic fibers, or any other item other than that specifically described as
allowed herein above except those telephone lines, optic fibers or other items that are
directly associated with the operation and maintenance of the Project. Ruby, its
employees, contractors, agents and persons, as well as firms corporations and their
employees, contractors, agents and person who are doing work for Ruby shall not have
the right to use this Road for personal use, recreation, or access.
4. While using the Road, Ruby, its employees, contractors, agents and persons, as well as
firms and corporations who are doing work for Ruby shall not interfere or impede with
Whittaker in the operations of the ranch. Whittaker retains the right to use the Road for
transportation or mobilization of ranching equipment including but not limited to tractors,
wagons, balers, swathers, and livestock trailers. Whittaker specifically retains the right to
utilize the Road for herding or gathering livestock without notice to Ruby. By entering
into this Agreement, Ruby specifically agrees to advise all its employees, contractors,
agents and persons as well as anyone doing work for Ruby to stop any vehicle being
operated if Whittaker or Whittaker's agents are herding any livestock on the Road
and to not interfere with any herding or gathering operation.
5. Ruby and all its agents, employees and contractors shall not operate a vehicle on
said Road at any speeds in excess of twenty (20) miles per hour.
6. Whittaker has notified Ruby that it has entered into other non exclusive agreements for
others to use the Road during the term of this Agreement. Whittaker and their successors
and assigns retain the right to enter into additional agreements to allow others to use the
Road. Ruby shall be responsible for coordinating its use and safety while using the Road
with all other users.
7. Ruby agrees to cooperate with Whittaker and all other permitted users of the Road should
Whittaker or any other permitted user wish to implement a gate, security, or entry system
to control use of and access to and across the Road. Pending installation and
implementation of a security gate, Ruby agrees to have its employees, contractors,
agents, and persons, firms and corporations who are utilizing said Road in
association with the Project, clearly display some identifying mark on their vehicle
such as a sign, placard or label of a specific color and /or design that can be easily
recognized and distinguished from all others who use the Road from a reasonable
distance. Ruby agrees to advise Whittaker prior to use of the Road what that
unique identifying flag or label is for identification purposes.
Whittaker Ruby \Ruby- Wagon W heelRoad 7.8.10 FINAL
Page 2 of 6
37
8. Ruby is aware that Whittaker alone or Whittaker in conjunction with other road users
may install a security gate on the Road that will limit use to only those who are
authorized or invited. Upon installation of the security gate by Whittaker, it is anticipated
that anyone, including but not limited to Ruby, who has authority to use the road, will be
required to enter a code or use an encoded card to proceed either direction on the Road.
It is understood and expected that the access code(s) and /or cards required will be
updated and change from time to time. Whittaker may control those code(s) and /or cards.
It is also understood and expected that Whittaker will be entitled to enforce the teens and
conditions of this easement by being able to receive a list from Ruby of who is authorized
to use said Road or who Ruby has given access code(s) and /or cards to. To facilitate this
clause of the Agreement, Ruby shall provide to Whittaker a person who shall act as the
liaison between Ruby and Whittaker and who Whittaker shall contact in advance to
notify of the activation of the security gate and provide an access code or codes and /or
cards for use by Ruby's employees, agents and contractors. The following person is
designated by Ruby to act as that liaison: Tony Savageau; (303) 249 -2633 through
construction. After Project construction the liaison shall be the Ruby Land Manager at
(877) 598 -5263 and Whittaker may be contacted at (307) 877 -4722. The contact person
may be changed upon notice given to the other Party in writing at the address listed
below for notice. Ruby shall be responsible for properly providing the code(s) and /or
cards to only people who are duly authorized to use the Road pursuant to this Agreement
in the completion of this Project. Providing code(s) and /or cards to unauthorized
individuals or failing to retrieve code(s) and /or cards from individuals whose authority
has been revoked and to notify Whittaker of such revocation shall be deemed a material
breach in violation of this Agreement and may result in the revocation of the Lease by
Whittaker upon providing notice and proof of such a violation.
9. Ruby shall be solely liable and responsible for maintaining and repairing the Road and all
cattle guards as a result of the construction activities of the Project. Ruby shall also be
solely liable and responsible for assuring all cattle guards are clean so cattle and livestock
cannot exit any fenced area by walking across a mudded, frozen, or filled cattle guard as
a result of Ruby's construction activities.
10. During construction of the Project, Ruby shall be solely responsible for all dust control,
snow removal, plowing and maintenance which may include but is not limited to running
a road grader over the road to smooth it and depositing and appropriately distributing or
spreading road base or gravel on the Road as a result of Ruby's construction activities.
Such maintenance shall occur when the Road or any part thereof has wash boards form
on it, the Road becomes slick, muddy, rutted, or there is an accumulation of mud holes.
11. Ruby shall be responsible for fixing or assuring the restoration, maintenance and repair of
the road as a result of its construction activities to as good condition as of the date of this
Agreement. The road work is to be completed within thirty (30) days after construction is
completed, weather permitting, Ruby shall be responsible for performing the following:
a. If any cattle guard, concrete base or area surrounding a cattle guard is damaged as
a result of or during construction, they will be repaired or replaced by Ruby.
Ruby shall raise and clean any dirt, mud and/or accumulation of debris from any
existing cattle guards currently located in the Road as a result of its construction
activities; and
b. After construction, Ruby shall repair the Road. This repair shall include grading
and, if necessary, applying road base in those areas (if any), as required. The road
will be graded so that the base is appropriately distributed, and the road base shall
be compacted so that it will remain in place and so that the road is smooth. If
necessary, any cattle guards shall be raised or replaced if damaged so that vehicles
are able to smoothly cross the cattle guards and so the cattle guards will be
effective in keeping livestock in an enclosed area.
12. All rights granted in the Agreement are subject to all existing agreements, rights -of -way,
Whittaker \Ruby \Ruby- WagoiWheelRoad 7.8.10 FINAL
Page 3 of 6
easements, leases, licenses or other agreements previously granted by Whittaker and are
further subject to the continuing right of Whittaker to extend or renew any or all of said
rights -of -way, easements, leases, licenses or other agreements and enter into additional
Agreements, rights -of -way, easements, leases, license or other agreements for use of the
Road.
13. Ruby and all its agents, employees and contractors shall not operate a vehicle on said
Road nor be present on said Road at any time while possessing any firearm, alcohol
beverage, or controlled substances unless that controlled substance is possessed pursuant
to a valid prescription nor shall Ruby or its agents, employees or contractors use said
Road while under the influence of any alcoholic beverage or controlled substance unless
pursuant to a valid prescription. As part of Ruby's safety training, all agents, employees
and contractors will be instructed that while on the Whittaker property they are prohibited
from possessing, selling or being under the influence of illegal drugs or alcohol and are
further prohibited from possessing firearms while on Whittaker property. All Ruby
agents, employees and contractors are required to complete safety training prior to
beginning any work on a Ruby project. Violation of this condition by an individual
otherwise authorized to use this Road pursuant to this Agreement shall result in Ruby
prohibiting that person from the Project area. Failure of Ruby to take such action shall be
deemed a material breach in violation of this Agreement.
14. Ruby shall be responsible for the negligence of all Ruby's employees, agents,
contractors, and all other persons arising from the use of the Road on behalf of Ruby in
association with this easement.
15. Ruby acknowledges and agrees that it is responsible for damages, if any, to the Road,
livestock, property or person of Whittaker occasioned by Ruby's use of the Road
16. Ruby shall work to prevent the spread of noxious weeds on the land adjacent to the
roadway. Any vehicles or equipment that has been operated recently in areas where leafy
spurge or other noxious weeds exist shall be power washed prior to entry upon the Road.
Ruby shall work diligently to eliminate any noxious weeds, including leafy spurge that
can reasonably be inferred to have been introduced to the premises by Ruby's operations
and shall cooperate with the other permitted road users to eliminate any noxious weeds
growing adjacent to the roadway.
17. Ruby agrees to hold Whittaker, including their partners, officers, and employees free and
harmless from any and all liability caused by Ruby's use of the Road and bridge or the
use of the Road and bridge by its employees, contractors, agents, persons, and films and
corporations who are utilizing the Road and bridge on behalf of Ruby in association with
this easement. Ruby further agrees to indemnify and hold harmless Whittaker as to all
actions, claims, or suits including but not limited to attorney fees and costs arising from
Ruby's use of the Road or the use of the Road by Ruby's employees, contractors, agents,
persons, and firms and corporations who are utilizing the Road and bridge on behalf of
Ruby in association with this easement. Whittaker retains the right to chose their
attorney in such action and manage any and all litigation associated therewith.
18. Ruby may not assign or otherwise transfer Ruby's rights and interests herein or hereunder
without prior written consent of Whittaker or their heirs, which consent shall not be
unreasonably withheld. Any assignment or transfer prior to obtaining the written consent
of Whittaker shall void this easement and the right of Ruby or any assignee to use the
Road and Whittaker shall be entitled to retain all monies paid by Ruby and utilize all
remedies available to Whittaker pursuant to this Agreement.
19. Construction will be deemed to have ended for the purposes of this easement at the
completion of restoration of the initial Project in that area between mile post 1 of the
pipeline at the King Compressor Station to mile post 20 of the pipeline at State Highway
412. Construction for any expansion will be deemed to have begun once a certificate is
issued by the Federal Energy Regulatory Commission and construction related activities
Whittaker \Ruby \Ruby- WagonWheelRoad 7.8.10 FINAL
Page 4 of 6
are undertaken and will be deemed to have ended at the completion of restoration related
to that expansion project.
20. All rights and privileges granted herein shall terminate if Ruby fails to complete initial
construction of the Pipeline and Facilities by December 31, 2012 or fails to maintain and
operate said Pipeline and Facilities by transporting product therein for a period of more
than twenty -four (24) consecutive months. Ruby may at any time permanently abandon
said right -of -way upon approval of abandonment by the Federal Energy Regulatory
Commission. Upon such abandonment, Ruby shall execute and record a reconveyance
and release hereof, whereupon this right -of -way and easement and all rights and
privileges herein mutually granted shall be fully canceled and terminated except those set
forth in paragraphs 14, 15, and 17 above. On the termination of the rights granted herein,
whether as set forth under this section or otherwise, Ruby shall execute and deliver to
Whittaker, within forty five (45) days after service of a written demand therefore, a good
and sufficient quitclaim deed to all rights hereby granted. Should Ruby fail or refuse to
deliver such deed to Whittaker, a written notice by Whittaker reciting the failure or
refusal of Ruby to execute and deliver such deed, and terminating this grant, shall, after
thirty (30) days from the date of recording of such notice, be conclusive evidence against
Ruby and all persons claiming under Ruby of the termination of this grant.
21. Should either party be required to retain an attorney to enforce any provision of this
Agreement, the prevailing party, whether litigation is initiated or not, shall be entitled
to receive reasonable attorney fees from the other party.
22. This Agreement embodies the entire understanding of the parties and there are no further
or other agreements or understandings, written or oral, in effect between the parties,
relating to the subject matter hereof. This instrument may be amended or modified only
by a written agreement signed by both parties.
23. Notice as required in this Agreement shall be deemed given three (3) days after any
written notice is deposited in the United States Mail, postage prepaid, certified mail,
return receipt requested to the party at the address below:
a. If to Whittaker: Jimmy Lee Whittaker and Joyce Ann Whittaker, P.O. Box
536, Kemmerer, WY 83101.
Whittaker \Ruby Ruby- W agon W heelRoad 7.8.10 FINAL
[The remainder of this page is intentionally blank.]
Page 5 of 6
b. If to Ruby: Ruby Pipeline, L.L.C., Attn: Land Manager, 2 North Nevada
Avenue, Colorado Springs, Colorado 80903
Executed this
MY LEE WHITTAKER,
Whittaker /Landowner
P.O. Box 536
Kemmerer, WY 83101
rg-
day of July, 2010.
STATE OF WYOMING
ss.
COUNTY OF LINCOLN
On this q Eh day of July, 2010, before me personally appeared Jimmy Lee Whittaker and
Joyce Ann Whittaker, known to be the person described in and who executed the foregoing
instrument, and acknowledged that they executed the same as their own free act and deed.
DLU A A. ilANSEN NOTARY PU C
COUNTY OF
LINCOLN
Fr 1y CC. ":'.SSl0P3 EffiRE S ,15
Executed this
WITNESS my hand and official seal.
;ATE OF
day of July, 2010.
RUBY PIPELINE, L.L.C.,
By CIG Pipeline Services ompany, LLC
Acting as Construction Manager and Agent
WITNESS my hand and official seal.
,0 �(t1E 1
Hg4 A
r
PUBUG O
�o Expo
Whittaker \Ruby \Ruby-Wagon WheelRoad 7.8.10 FINAL
Page 6 of 6
JOY ANN WHITT
Whittaker /Landowner
P.O. Box 536
Kemmerer, WY 83101
.9o.Z (7 ofiu
L aikkL.
NOTARY PUBLIC
My Commission Expires: :;3 /may
540
STATE OF Coto ruclo
ss.
COUNTY OF G! Paso
On this day of July, 2010, before me personally appeared LS di lam 4 -0 tat Jr;
the Vt c Q. 'Oros i cLyv for RUBY PIPELINE COMPANY, known to be the
person described in and who executed the foregoing instrument, and acknowledged that he /she
had the requisite authority to execute such agreement. And that he /she executed the same as the
free act and deed of Grantee, RUBY PIPELINE COMPANY.
NOTARY PUBLIC
My Commission Expires: 21-11
Exhibit
WAGON WHEEL ROAD
WIER
PEI FA'
1
19
541