2009-10-29_REVISION - M1987049 (4)

Home Browse Search

12-29-2004 05:26pm From-ALSTON AND BIRD 4048817777 T-729 P:0031006 F-643 4. Operation of the McCanne Ditch. Grantor shall be responsible for the day to day operation of the McCanne Ditch, headgates and Check structures. Grantee shall be responsible for delivery of its water through the headgate or other structure, and the day to day operation of any structures needed for subsequent release, storage or recharge. Grantee shall notify Grantor 24 hours in advance of its intent to begin running water. S. Cost of Carriage. Grantor shall not look to Grantee for the payment of any carriage cost for the Foreign Water. Instead, Grantor agrees to negotiate with Brighton in good faith for Brighton's direct payment of such carriage costs. 6. Measurement of Forei Waters. Measurement of the waters carried in the McCanne Ditch by Grantee shall be at any measuring structure where the water is delivered into and out of the McCann Ditch to storage into the Kenneth Mitchell Lakes. Grantee shall be entitled to clairn all recharge credits for Grantee's water which seeps out of the McCanne hitch between the point at which water is delivered to McCanne Ditch and the release point or any storage or recharge sites. 7. Grantor's Rights to Use Ditch. Grantee's rights granted herein are subordinate to the primary right of Grantor to use the McCanne Ditch for the diversion of the water rights now decreed to the McCanne Ditch or a change to augmentation of up to 900 acre-feet per year pursuant to the application filed Case No. 96CW197, District Court, Water Division No. 1. Grantee may use carriage capacity that is excess to the needs of Grantor whenever it is available in the water year, and Grantee shall have a first and prior right to such carriage capacity to the extent of the rights granted herein. In the event that Grantor desires or intends to sell or assign all or part of its interest in the McCann Ditch (or in the Henderson Water Company), the parties hereto agree to determine the quantity of water, in acre-feet, to which Grantee shall be entitled to carry through the McCann Ditch to satisfy its obligation to satisfy the Brighton to carry water to its Kenneth Mitchell Lakes in accordance with the MOU and Tri-Party Agreement described above. Once so determined, Grantee shall have a first and prior right to such capacity notwithstanding sale or assignment of Grantor's interest in the McCann Ditch. Dispute Resolution. If any disagreement should wise between the parties with respect to their respective rights and obligations under this Agreement, such disagreement shall be decided by binding arbitration before a single arbitrator experienced in Colorado water law pursuant to the Construction Rules of the American Arbitration Association. The fees and costs of the arbitrator, and any other costs of the proceeding, shall be paid one-half by Grantor and one-half by Grantee; provided, however, that the arbitrator shall award attorneys' fees and costs to the substantially prevailing party, which shall be determined in the sole discretion of the arbitrator. 9. Terns. The term of this Agreement shall be perpetual- 10. Relocation of Ditch. Grantee shall be entitled to relocate any portion of the McCanne Ditch located on the property of Grantee or its affiliates as necessary to facilitate or assist its mining operations. Grantee shall provide its plans and specifications, which j 2