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11(-ZQ73- ft/dr~ ; L RECEIVED SEP 131004 Division at Minerals and Geolo /AGREEMENT TO MODIFY DITCH AND DITCH EAS~MENT SMITH AND EMMONS DITCH COMPANY and LAFARGE WEST, INC. 1. PARTIES. The parties to this Ageement to Modify Ditch and Ditch Easement ("Agreement") aze the SMITH AND EMMONS DITCH COMPANY ("Ditch Company"), a Colorado mutual ditch company, and LAFARGE WEST, INC. ("Lafarge"), a Delaware corporation. The Ditch Company and Lafarge are jointly referred to as "the Parties." 2. RECITALS. 2.1. Mineral Reserves, lnc. ("Mineral Reserves") owns and Lafarge West, Inc. operates a gavel mine on real property in Weld County, Colorado described in EXHIBTT A ("Lafarge Property"). The Ditch Company owns the Smith and Emmons Ditch {"Ditch") and its appurtenant easement for the operation, maintenance, repair and replacement of the Ditch {"Ditch Easement"). A portion of the Ditch and the Ditch Easement occurs on the Lafarge Property. 2.2. To facilitate the extraction of sand and gravel from the Lafarge Property, Lafarge desires to relocate approximately one thousand three hundred and fifty (1350} feet of the Ditch and to install a one thousand two hundred and fifty (1250} foot long concrete-lined ditch; three (3} drop structures; six (6} underdrains; one (1) concrete culvert; and one (1 } diversion structure (collectively "Installations"). WHEREFORE, THE DITCH COMPANY AGREES TO ALLOW LAFARGE TO RELOCATE THE DITCH AND TO INSTALL THE INSTALLATIONS, SUBJECT TO THE TERMS, CONDITIONS AND COVENANTS SET FORTH IN THIS AGREEMENT. ACCORDINGLY, IN CONSH)ERATION OF THE MUTUAL PROMISES SET FORTH IN THIS AGREEMENT, THE PARTIES COVENANT AND AGREE AS FOLLOWS: 3. CONDITIONS PRECEDENT. 3.1. SUBORDINATION AGREEMENT. Prior to construction of the Installations and to modification of Ditch Company's Ditch Easement, Lafarge shall provide the Ditch Company with a Subordination Agreement, the form of which is attached hereto as EXHIBIT B, from any person and/or entity holding a lien, mortgage and/or deed of trust to the Property described in EXHIBIT A. The Subordination Agreements} shall be recorded in the real property records of Weld County, Colorado, at Lafarge's expense. If any person and/or entity holds a lien, mortgage and/or deed of trust to the Property described in EXHIBIT A, then this Ageement shall not become effective unless and until the executed Subordination Ageement(s) is/are delivered to the Ditch Company. 3.2. CONVEYANCE OF EASEMENT DEED. Prior to construction of the Installations and to modification of Ditch Company's Ditch Easement, Lafarge shall provide the Ditch Company with a permanent, non-exclusive easement for the operation. maintenance, repair and replacement of the Ditch upon, over and across the Lafarge