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• • AGREEMENT <br />L G. Everist, Inc and <br />Lupton Bollom Ditch Company <br />viii. EVERIST will ensure the potential capability of water flow through the PERMANENT <br />DITCH. When there is water flow, EVERIST will measure the water flow upstream <br />and downstream in the PERMANENT DITCH, to ensure there are no leaks. <br />ix. EVERIST will be responsible for repairs and maintenance to the MAINTENANCE <br />ROAD, the PERMANENT DITCH, and the EMBANKMENT, except in the case of <br />damage done by an employee of, or a person working for, LUPTON BOTTOM, or <br />any third party. In which case, EVERIST will make the repairs, and charge the <br />responsible party for the cost of the repairs. <br />x. EVERIST will bond the construction of the PERMANENT DITCH and the <br />EMBANKMENT to the specifications that are standard to the canal lining industry; <br />and will inspect the work at all phases of construction to ensure that these <br />specifications are being met. <br />6. At the completion of the WARRANTY PERIOD, EVERIST will release its construction bond <br />on the PERMANENT DITCH and the EMBANKMENT, and LUPTON BOTTOM will provide <br />reasonable cooperation to help EVERIST in the release of its bond. <br />7. At the completion of the WARRANTY PERIOD, LUPTON BOTTOM will take responsibility <br />for the maintenance and repair of the PERMANENT DITCH and two (2) feet on the west and <br />east sides of the DITCH. <br />8. EVERIST is not responsible for the functioning of the Lupton Bottom Ditch outside of the <br />EVERIST PROPERTY, nor for the management of the flow of water through the headgates <br />to or from other properties. <br />9. For as long as they own the EVERIST PROPERTY: <br />a. EVERIST will maintain the MAINTENANCE ROAD and the EMBANKMENT. EVERIST <br />will be responsible for repairs and maintenance to the MAINTENANCE ROAD and <br />EMBANKMENT, except in the case of damage done by an employee of, or a person <br />working for, LUPTON BOTTOM, or any third party. In which case, EVERIST will make <br />the repairs, and charge the responsible party for the cost of the repairs. <br />b. EVERIST will accept liability for any damage caused to the PERMANENT DITCH by <br />EVERIST employees and will either make the repairs or reimburse LUPTON BOTTOM <br />for the cost of the repairs to the PERMANENT DITCH. <br />c. EVERIST will maintain perimeter security to exclude any use by third parties. <br />10. By entering into this Agreement, the parties do not intend, either expressly or implicitly, to <br />create a joint venture or partnership. Except as provided herein, neither party shall have the <br />right or authority to act for, or on the behalf of, or to enter into any obligations binding on the <br />other party to this Agreement. <br />11. FORCE MAJEURE - The failure of either party to perform any of its respective obligations <br />hereunder by reason of acts of God, strike, or acts of any governmental agency or authority <br />having jurisdiction over matters set forth herein shall excuse timely performance of such <br />obligations, but shall not excuse the performance of such obligations as soon as reasonably <br />practical. The parties may, however, mutually consent or excuse a party from performing <br />any obligation, in whole or in part, upon a showing that performance has been rendered <br />impracticable by reason of FORCE MAJEURE. <br /> <br />