|
qj r� #,a
<br />�tCl1�Ol�
<br />+gF�at
<br />reuse of reclaimed wastewater through leases to others for use at locations other than Aurora,
<br />Colorado, including, but not limited to, challenges to retained dominion and control, C) acts of
<br />God, D) sudden actions of the elements such as floods, earthquakes, hurricanes, or tornadoes, E)
<br />sabotage, F) vandalism beyond that which can be reasonably prevented by the party, 0)
<br />terrorism, H) war, 1) riots, J) fire, K) explosion, L) severe cold or hot weather, M) snow, N)
<br />drought (a condition more severe than that which occurred in 2002 in the South Platte River
<br />Basin or any basin from which the Reclaimed Wastewater originates, O) other extreme weather
<br />conditions, O} blockades, Q) insurrection, R) strike, slow down or labor disruptions.(even if such
<br />difficulties could be resolved by conceding to the demands of a labor groups S) actions by
<br />federal, state, municipal, or any other government or agency (including but not limited to, the
<br />adoption or change in any rule or regulation or environmental constraint imposed by federal,
<br />state or local government bodies) but only if such requirements, actions, or failures to act prevent
<br />or delay performance, T) inability, despite due diligence, to obtain required licenses, permits or
<br />approvals, and, U) changes of law relating to financial obligations, revenues and budgetary
<br />matters concerning Colorado local governments and their enterprises. In the event a force
<br />majeure event or condition prevents Aurora from delivering all or part of the agreed upon
<br />amounts of Reclaimed Wastewater to Lessee, Aurora shall refund all advance payments made for
<br />that water not delivered within sixty days of the conclusion of the force majeure event or the
<br />cancellation of the Agreement pursuant to the remaining provisions of this Paragraph. In no
<br />event will any delay or failure of performance caused by any conditions or events of force
<br />majeure extend this Agreement beyond its stated term. In the ovent any delay or iaihrre of
<br />performance on the part of the party claiming force majeure continues for an uninterrupted
<br />period of more than one hundred twenty (120) days from its occurrence or inception as noticed
<br />pursuant to this Paragraph, the party not claiming farce majeure may, at any time following the
<br />end of such one hundred twenty (120) day period, terminate this Agreement upon written notice
<br />to the party claiming force majeure, without further obligation except as to costs and balances
<br />incurred prior to the effective date of such termination.
<br />13. SUbordination Clause, This Agreement shall be made expressly subordinate to any
<br />present or future city use of effluent for purposes of augmentation, exchange, or any other use
<br />which is or wil l be of greater direct benefit to Aurora and the users of its water delivery system,
<br />as well as to the water supply obligations which Aurora has incurred or will incur through any of
<br />the following. (a) the March 2, 1981, Water Agreement with the City of Arvada, Colorado and
<br />any renewals thereof; (b) the October 25, 1993, Effluent Agreement with the State of Colorado,
<br />Division of Parks and Outdoor Recreation and any renewals thereof; (c) its obligation pursuant to
<br />the Substitute Water Supply Plan for Upper Cherry Creek Management Association approved
<br />March 19,1998 and any renewals thereof; (d) its obligations pursuant to Water Division 1, Can
<br />Nos. 95CW226 & 227, Case No. 99CW 158, Case No. 01 CW284 and Case No. 02CW341; (e)
<br />the April 23, 2001 Agreement for Agreement of Reclaimed Wastewater with Calpine
<br />Corporation; (f) the May 20, 2003 Water Rights Purchase and Sale Agreement with the City of
<br />Thornton, Colorado; (g) the May 19, 2006 Reusable Water Agreement with the Central Colorado
<br />Water Conservancy District, and (h) any and all obligations resulting from any firm delivery
<br />annual lease or delivery contract of Reclaimed Wastewater executed prior to the date of this
<br />Agreement. The foregoing subordination does not, in and of itself, create an excuse for Aurora's
<br />failure to deliver the Reclaimed Wastewater under this Agreement, however, Aurora and Lessee
<br />agree that the purpose and effect of the foregoing subordination is to establish a priority among
<br />and between Aurora's obligation under this Agreement and Aurora's other obligation with respect
<br />5
<br />94r 113115Z15�,t
<br />
|