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(b)Brannan shall have the right to enter upon the Easement Property and the Temporary
<br /> Easement Area to access, survey, construct, reconstruct, operate, use, maintain, repair,
<br /> replace, upgrade, and/or remove the Improvements, and to remove objects interfering
<br /> therewith, including but not limited to those items placed on the Easement Property under
<br /> Section 3(a) hereof. In addition, Brannan shall have the right to use so much of the
<br /> Temporary Easement Area during surveying, construction, reconstruction, operation, use,
<br /> maintenance,repair,replacement,upgrade,and/or removal of the Improvements as may be
<br /> reasonably required; provided, however, that such activities shall not interfere
<br /> unreasonably with Grantor's, its successors' or assigns', use and enjoyment of the
<br /> Henderson Properly. Brannan and its assignees and licensees shall repair any damage
<br /> caused to the Henderson Property and the improvements thereon, and shall be liable for
<br /> any injury to person or damage to property, to the extent arising out of Brannan's, its
<br /> assignee's or licensee's,use of the Easement Property or the Temporary Easement Area.
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<br /> (c)Brannan shall have and exercise the right of subjacent and lateral support to whatever extent is
<br /> necessary for the construction, reconstruction, operation, use, maintenance, repair,
<br /> replacement, upgrade, and/or removal of the Improvements.It is specifically agreed between
<br /> Grantor and Brannan that, except as provided in this Agreement, the Grantor, its successors
<br /> and assigns,shall not take any action which would impair the lateral or subjacent support for
<br /> the Improvements, whether on the Easement Property or the Henderson Property. The
<br /> Grantor, its successors and assigns, shall have and exercise the right of subjacent and lateral
<br /> support to whatever extent is necessary for the operation and maintenance of any
<br /> improvements on property adjoining the Easement Property so long as such support does not
<br /> impair in any way the subjacent or lateral support of the Improvements. It is specifically
<br /> agreed by and between the Grantor and Brannan that,except as provided in this Agreement,
<br /> Brannan shall not take any action which would impair the lateral or subjacent support for such
<br /> improvements.
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<br /> (d) If at any time after sixty (60)days after the Improvements are installed and operational, the
<br /> water level at the upstream end of the Pipeline, as described in Recital A above,exceeds the
<br /> elevation of 5000.22' (relative to the elevations shown on Exhibit B) (the "Elevation Max")
<br /> as a result of flow from the Improvements,Brannan,at its sole cost and expense,agrees to be
<br /> solely responsible for performing and completing all requisite upgrades to the Pipeline
<br /> necessary to eliminate any such exceedance of the Elevation Max in the future and agrees,
<br /> after receiving written notice of the elevation' exceedance, to investigate, design, and
<br /> .perform the upgrade as quickly as reasonably practicable (but in no event later than 180-
<br /> days after receipt of written notice). Grantor hereby agrees to provide the necessary access to
<br /> do so and the specific location and details to be agreed upon by the Parties at the time it is
<br /> needed. By way of example but not limitation, Brannan shall not be responsible for any
<br /> Pipeline upgrades if the elevation exceedance of the Elevation Max is caused,in whole or in
<br /> part,by high water and/or overbank flow of the South Platte River.Grantor may monitor the
<br /> water level at the upstream end of the Pipeline periodically, at its sole discretion. Brannan's
<br /> failure to comply with this paragraph as well as any other terms, covenants or agreements
<br /> contained in this Agreement within 180 days after written notice of such failure will result in
<br /> Grantor's right to immediately terminate this Agreement.
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