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12-U-2004 05:26pm From-ALSTON AND BIRO 4048817777 T-728 P.003/006 F-643 <br /> 4. Operation of the McCann Ditch. Grantor shall be responsible for the day to day <br /> operation of the McCanne Ditch, headgates and check structures, Grantee shall be <br /> responsible for delivery of its water through the headgate or other structure, and the day <br /> to day operation of any structures needed for subsequent release, storage or recharge. <br /> Grantee shall notify Grantor 24 hours in advance of its intent to begin running water. i <br /> 5. Cost of Carriaze. Grantor shall not look to Grantee for the payment of any carriage cost <br /> for the Foreign Water. Instead, Grantor agrees to negotiate with Brighton in good faith <br /> for Brighton's direct payment of such carriage costs. <br /> b. Measurement of Forei&n Waters. Measurement of the waters carved in the McCanne <br /> Ditch by Grantee shall be at any measuring structure where the water is delivered into <br /> and out of the McCann Ditch to storage into the Kenneth Mitchell Lakes. Grantee <br /> shall be entitled to claim all recharge credits for Grantee's water which seeps out of the <br /> McCanne Ditch between the point at which water is delivered to McCann Ditch and <br /> the release point or any storage or recharge sites. <br /> 7. Grantor's Rights to Use Ditch. Grantee's rights granted herein are subordinate to the <br /> primary right of Grantor to use the McCann Ditch for the diversion of the water rights <br /> now decreed to the McCann Ditch or a change to augmentation of up to 900 acre-feet <br /> per year pursuant to the application filed Case No.96CW197, District Court, Water <br /> Division No. 1. Grantee may use carriage capacity that is excess to the seeds of <br /> Grantor whenever it is available in the water year, and Grantee shall have a first and <br /> prior right to such carriage capacity to the extent of the rights granted herein. In the j <br /> event that Grantor desires or intends to sell or assign, all or part of its interest in the <br /> McCanne Ditch (or in the Henderson Water Company), the parties hereto agree to i <br /> determine the quantity of water,in acre-feet,to which grantee shall be entitled to carry <br /> through the McCanne Ditch to satisfy its obligation to satisfy the Brighton to carry <br /> water to its Kenneth Mitchell Lakes in accordance with the MOU and Tri-Party <br /> Agreement described above. Once so determined, Grantee shall have a first and prior <br /> right to such capacity notwithstanding sale or assignment of Grantor's interest in the <br /> McCann Ditch. <br /> S. Dispute Resolution. If any disagreement should anise between the parties with respect <br /> I <br /> to their respective rights and obligations under this Agreement, such disagreement shall <br /> be decided by binding arbitration before a single arbitrator experienced in Colorado <br /> water law pursuant to the Construction Rules of the American Arbitration Association. <br /> The fees and costs of the arbitrator, and any other costs of the proceeding, shall be paid <br /> one-half by Grantor and one-half by Grantee; provided, however, that the arbitrator <br /> shall award attorneys' fees and costs to the substantially prevailing parry, which shall <br /> be determined in the sole discretion of the arbitrator. <br /> I <br /> 9. Term. The term of this Agreement shall be perpetual_ <br /> 10. Relocation of Ditch. Grantee shall be entitled to relocate any portion of the McCann <br /> Ditch located on the property of Grantee or its affiliates as necessary to facilitate or <br /> assist its mining operations. Grantee shall provide its plans and specifications, which <br /> i <br /> 2 <br />