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entitled to such sand, gravel and other material in the berm to the property line. Buyer shall be entitled to the additional storage made available below the level of the original mining plan at no additional cost. If Buyer determines between January 1, 2006 and December 31, 2007 to remove the berm, and Seller is unable to remove such sand, gravel and other material, Seller shall be paid a royalty for the sand and gravel removed at the then-prevailing rate for such minerals. Representatives of Seller and Buyer will cooperate to determine the then-prevailing rate. If they are unable to agree on such rate, they will jointly select a qualified independent third-party consultant who will make a binding determination of the rate. 7.5 Overburden. With the exception of top soil, all overburden presently on site will be used exclusively on the site first for reclamation and next for lining, unless waived by Buyer. Sufficient top soil will be retained on site to meet the reclamation plan requirements. Buyer will not unreasonably withhold such waiver if after analysis, the overburden is determined to be in excess of the amount needed for reclamation and lining, or if the quality of overburden is determined to be inappropriate for lining purposes. 7.6 Lining of Water Storage Reservoirs. The Buyer will prepare specifications for the fining of the water storage reservoirs. The Seller will have the opportunity to pre-qualify to bid the lining project, along with other bidders. The project will be awarded to the Seller, if the Buyer determines that the Seller is the lowest responsible bidder. To the extent it does not interfere with Seller's mining of the Property, Buyer may commence lining the reservoir site and construction of appurtenant facilities during the mining period, with Seller's consent. Seller shall not unreasonably withhold its consent to such activities. Buyer will secure all necessary permits and approvals for such activities, including, but not limited to amendment of the mined land reclamation plan and special use permit. If such improvements are installed in whole or in part, Seller shall conduct its mining activities so as to not damage or interfere with the integrity of such improvements. Damage to such improvements caused by Seller's negligence will be repaired by Buyer at Seller's sole cost. 7.7 Annexation. Seller will cooperate with Buyer in the annexation of the Property, including the 10-acfe batch plant, into Commerce City in a manner which allows continuation of the existing uses. Seller and Buyer will cooperate to obtain vacation of the 16' road easement which runs in a westerly direction from Old Brighton Road, a distance of approximately 1275 feet as shown on the subdivision plat for Road Runner's Rest dated November 6, 1973. 7.8 Temporary and Permanent Access. The description of the Property described and depicted in Exhibit A includes a fee strip, 50 feet wide, which runs along 14