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Aurora will bear the responsibility for delivery of the Reclaimed Wastewater to these Delivery <br />Points, and in its sole discretion may determine which of the Delivery Points it will use at any <br />given time. Once Aurora has completed its delivery of the Reclaimed Wastewater hereunder, <br />Lessee shall assume sole liability for any loss, damage, or injury that may occur to persons or <br />property as the direct or indirect result of the control and/or use of said Reclaimed Wastewater by <br />Lessee. The amount of Reclaimed Wastewater reflected in the Delivery Schedule was calculated <br />by Lessee to include any transportation losses, or "shrinkage," from Hite to Lessee's Point of Use <br />downstream. Lessee also acknowledges the travel time between the alternate Delivery Points and <br />Lessee's Point of Use varies, but that the timing for Aurora's delivery obligations as provided for <br />under the Delivery Schedule shall remain the same regardless of Aurora's use of alternative <br />Delivery Points. <br />(b) Credit for Avoided Transit Loss. Aurora's obligations with respect to the volume of <br />Reclaimed Wastewater to be delivered under this Agreement are deemed to be satisfied if Aurora <br />makes deliveries in such amounts as if delivered at Hite. Thus, if Aurora elects, in its sole <br />discretion, to make its delivery of any Reclaimed Wastewater under this Agreement at a Delivery <br />Point other than Hite, and if delivery at such alternative Delivery Point(s) results in reduced transit <br />loss, Aurora shall be entitled to retain such avoided transit loss with no credit to Lessee in water, <br />money or otherwise. Aurora shall maintain and provide to Lessee a monthly accounting and report <br />of daily deliveries at the Delivery Point(s). If Aurora elects to deliver some or all of the Reclaimed <br />Wastewater at alternative Delivery Point(s), then the foregoing reports shall include the calculated <br />amount of avoided transit loss and the amount of water physically delivered at such alternative <br />Delivery Point(s). For purposes of calculating any such avoided transit loss, the Parties hereby <br />agree that the volume of Reclaimed Wastewater required to be delivered by Aurora in accordance <br />with the Delivery Schedule shall be discounted by an amount equal to one-half of one percent <br />(0.5%) of such volume during the April through September irrigation season, or one-fourth of one <br />percent (0.25%) of such volume during the October through March non -irrigation season, for each <br />river mile in distance between Hite and such alternative Delivery Point(s) (such distance calculated <br />to the nearest one-tenth of a mile), or by such other amount as determined by the Division Engineer <br />for Water Division No. 1 (such office or its replacement the "Division Engineer") or as specified <br />in an applicable statute or decree from a court of applicable jurisdiction. The product of this <br />calculation shall represent the amount of avoided transit loss in acre-feet, which Aurora shall be <br />entitled to retain. <br />4. Source and Quality of Reclaimed Wastewater. The Reclaimed Wastewater to be provided <br />by Aurora under this Agreement shall, at Aurora's discretion, consist of Aurora's reusable <br />municipal return flows to the South Platte River, any fully consumable portion of changed <br />irrigation water rights owned by, or available to Aurora, fully consumable water diverted pursuant <br />to decrees entered in 03CW414, 03CW415 and 06CW104, and any other legal source of <br />Reclaimed Wastewater available to Aurora. Under no circumstances shall this Agreement be <br />interpreted to mean that Aurora must supply potable water should the sources set forth in this <br />paragraph be unavailable. Aurora does not warrant or guaranty any water quality standards with <br />respect to the Reclaimed Wastewater to be delivered as provided for under this Agreement and <br />Lessee hereby waives any such warranty or guaranty. <br />5. Use of Reclaimed Wastewater. Lessee shall have the right to use and reuse to extinction <br />the Reclaimed Wastewater delivered under this Agreement for water supply purposes, including <br />009411\0310\11688512.6 3 <br />