2009-03-06_REVISION - M1987049 (19)

Home Browse Search

12-29-2004 05:26pm From-ALSTON AND BIRD 4048817777 T-729 P-002/006 F-643 CARRUGE AGR EMENT THIS AGREEMENT, made and entered into effective as of the 13th day of Septemb cr, 2004, is by and between the M-,Cann Ditch and Reservoir Company, hereinafter referred to as "Grantor" and the Ready Mixed Concrete Company, a Colorado corporation, hereinafter referred to as (1fGrantee!) WITNESSE'IH: WHEREAS, Grantor holds legal title to, manages and operates the McCann Ditch-, WHEREAS, Grantee desires to divert waters and water rights, appropriated, unappropriated, owned or leased through the McCann Ditch far subsequent release, storage, recharge and augmentation purposes; WHEREAS, there is capacity in the McCann Ditch to carry "Foreign Water" over and beyond that diverted by the Grantor's shareholders under the water rights decreed to the McCann Ditch; and WHEREAS, Grantee has entered into a "Memorandum of Understanding," dated March 16, 1999, with the City of Brighton (' Bri on")(the "IvIOU") to allow Brighton to use the McCann Ditch to convey water to the City of Brighton's Kenneth Mitchell Lakes (formerly known as Bromley Lakes) located in Section 13, Township 1 South, Range 67 West of the 6" P.M. in Adams County, Colorado and Grantee has also entered into a Tri-Parry Agreemerrt? dated December 23, 2003, between Sprat-Platte Ranch Co., the Grantee and Brighton (the "Tri-Party Aareeinetit') in the same regard and the essential purpose of this Carriage Agreement is to allow the Grantee to comply with those agreements now that the Grantor and Grantee are not affiliated companies. NOW, THEREFORE, for and in consideration of the premises and the mutual promises and covenants of the parties hereto, IT IS AGREED AS FOLLOWS: 1. Use of Carriage Capacity. Grantor agrees that Grantee may use the McCann Ditch to divert, convey, carry and transport such waters and water rights as provided in the MOU and Tri- Parry Agreement, whether appropriated, unappropriated, owned or leased in excess of any water currently decreed to the meCanne Ditch (the "Foreign Water'. 2. Structures. Any headgates, check structures or measuring structures on the banks of the McCann Ditch as are necessary to accomplish the purposes of this Agreement shall be installed by Grantor after good faith negotiations between Grantor and Brighton have determined the need for the structures and Brighton's responsibility for paying for the same. . To the extent necessary to install such structures, Grantee shall provide, and shall cause its affiliates to provide, Grantor, its employees and contractors with all rights of ingress and egress to the McCann Ditch for the purposes described above. 3. Ownership and Responsibility for Structures. Any device or structure so installed in the McCanne Ditch by Grantor shall remain the property of Grantor. Grantor shall be responsible for the maintenance and repair of any device or structure. AJF241ov4