Laserfiche WebLink
6 <br />dewatering at the Derr Pit. If there is a question as to <br />whether dewatering at Derr Pit is the proximate cause of <br />the reduction in groundwater levels that require the <br />mitigation plan described in this paragraph, then BAI <br />and Koehler agree to work together in good faith to <br />resolve such question. If they are unable to resolve such <br />question between themselves, they agree that the <br />Colorado State Engineer Office (“SEO”) is the state <br />agency with expertise in determining such matters and <br />both BAI and Koehler shall seek the determination of <br />whether the groundwater level declines in the monitoring <br />wells are proximately caused by the dewatering activities <br />at Derr Pit. <br /> <br />c. If, after performing the reasonable mitigation efforts described in <br />3(A)(4)(b)(iii) above, and after the upgrades to the Koehler <br />Irrigation Well as shown in Exhibit B have been completed, Koehler <br />fails to produce a crop yield, on a per acre basis, that is within 10% <br />of the average yield on the 70 acres historically irrigated on the <br />Koehler Property, as substantiated by the crop records in Exhibit D <br />hereto, then BAI shall pay Koehler that amount that represents the <br />difference between the actual yield for the year in question and the <br />average yield as shown in Exhibit D. This provision is invoked only <br />if the failure to produce an average yield is directly related to a lack <br />of water available at the Koehler irrigation well, which is the result <br />of dewatering at the Derr Pit and does not extend to cover assurances <br />for causes in decreased yield that are outside the control of BAI and <br />the Companies, such as, but not limited to, dewatering activities <br />associated with operations conducted pursuant to mining operations <br />at other locations under different mining permits, pests, intentional <br />fallowing or crop rotations, extreme drought, mechanical failure <br />within the irrigation sprinkler system, and water quality issues. <br /> <br />d. BAI shall install a slurry wall liner around the existing Derr Pit. BAI <br />shall, in accordance with the terms and conditions of Revision No. <br />AM01, install a slurry wall liner around the area to be mined within <br />the Amendment Area prior to exposing groundwater within the <br />Amendment Area. Upon completion of the slurry wall liners <br />described in the previous sentence, BAI shall continue to have <br />access to the Koehler Wells for purposes of gathering water level <br />data, which monitoring data shall continue to be collected and <br />reported monthly until the data shows that the water level is gaining <br />for three consecutive months, at which point the monitoring data <br />described in 3(A)(4)(b)(ii)shall be collected quarterly until such <br />time as the DRMS releases the bond associated with the Derr Pit <br />mining permit.