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Colorado, under the name of SW TKO Joint Venture, LLC, et al., v. Edith <br />Chavers and Andrew Chauers and the Colorado D~artment of <br />Transportation (the "Pending Action"). Assignors agree to continue to <br />prosecute the Pending Action in a diligent manner to completion at their <br />sole cost and expense, and shall promptly construct any improvements <br />required to be constructed pursuant to any Court Order or Stipulation in <br />the Pending Action. <br />3.2 If the Assignors are not successful in obtaining the access for the <br />discharge of water sought in the Pending Action, the Assignors shall <br />immediately undertake to acquire such easements as may be required to <br />construct an alternative point and place for the discharge of water from the <br />Property to the South Platte River. In such case, the Assignors shall, at <br />their cost, (a) acquire all required easements and permits necessary for Ure <br />dischazge of water from the Property to the South Platte River in a <br />location approved by the Assignee and by LaFazge West, Inc.; (b) <br />construct all pipelines, swales or other facilities for such alternative <br />access, the capacity of which will be subject to review and approval by <br />Assignee and LaFazge West, Inc, which approval will not be <br />unreasonably withheld; and (c) prepaze and process to completion <br />amendment to all permits for mining or water discharge as may be <br />necessary to reflect the change in point of diversion. <br />3.3 I3r lieu of prosecuting the Pending Action to completion, the Assignor may <br />utilize the provisions of 3.2 above, subject to the same conditions set forth <br />therein. <br />It is the intenfion of the parties that the Assignor shall be required' to provide one <br />access point to the South Platte River for the dischazge of water, pursuant to the <br />Pending Action, or pursuant to 3.2 or 3.3 above, and that such access shall be <br />provided in any event prior to the fime that an access for the discharge of water is <br />required by LaFazge West, Inc., under the mirring lease, or as may be required <br />under any Permits. <br />4. Fort Lupton Permit. Assignors shall continue to be responsible for and covenant <br />to complete all obligations under clause (m) of the Fort Lupton Permit, all of which shall be <br />completed at such time as required by Fort Lupton. <br />5. Indemnification -Assignor. Assignor shall indemnify and hold harmless <br />Assignee from and against any and all liabilities, obligations, claims, costs and expenses, <br />including reasonable attorneys' fees, related, dsectly or indirectly, all liabilities and obligations <br />arising under the Permits prior to the date of this Assignment and breach of any of the <br />obligations of Assignor under this Assignment. <br />6. Indemnification - Assignee. Assignee shall indemnify and hold harmless <br />Assignor from and against any and all liabilities, obligations, claims, costs and expenses, <br />including reasonable attorneys' fees, incurred under the Permits after the date of this Assignment <br />(00335250 / 3 J - 2 - <br />