2009-11-03_HYDROLOGY - M1977036 - Laserfiche WebLink

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I 3. Transfer and Leaseback of Boyd and Freeman Ditch Water Rights. As j frill consideration and rent for the permanent lease of the Augmentation Water described in Section 1 (subject to an assignee's possible obligation to pay the storage and pumping fee upon assignment described in Section 2), Lafarge agrees to transfer, convey and assign by bargain and sale deed, stock assignment and irrevocable stock power to Greeley all of its right, title and interest in water rights decreed to the Boyd and Freeman Ditch and associated with its 550 shares of stock in the Boyd Irrigation Company (the "Boyd`: and Freeman Ditch Water Rights") within 15 days of the effective date of this Agreement. Lafarge shall also execute covenants prohibiting irrigation of its 35th Avenue Pit Site with any water available under shares of stock in the Boyd Irrigation Company; except as may temporarily be required to allow Lafarge to meet its reclamation obligations under the mining permit for the 35th Avenue Pit Site. In partial satisfaction of Greeley's Augmentation Water lease obligation in Section 1 hereof, Greeley may elect to make Augmentation Water available to Lafarge under the Boyd and Freeman Ditch Water lights for use in Lafarge's Substitute Water Supply Plan to rcplace evaporative water losses or other water depletions occurring, at Lafarge's 35th Avenue Gravel Pit Site, or other sand and gravel mining sites located between the headgates of Greeley Canal No. 3 and the Ogilvy Ditch (the "Adjacent Sites") during the April-October period.. Lafarge agrees to use best efforts to continue to obtain any necessary approvals related to the use of water available under the Boyd and Freeman Ditch Water Rights it any renewals of such Substitute Water Supply Plan; provided, however, that nothing herein shall affect Greeley's obligation to deliver Augmentation Water from other sources in the event that a Substitute Water Supply Plan using the Boyd and Freeman Ditch Water Rights is not approved by the State Engineer's Office. Unless otherwise required by law, absent Greeley's written approval, Lafarge agrees not to seek court adjudication of any plan for augmentation involving Augmentation Water to be released from Greeley during the April-October period until the later of a) ten full Lease Years j after the effective date of this agreement. or b) completion of all required mine = j reclamation activities on the 35th Avenue Pit Site and the Adjacent Sites. Lafarge shall give Greeley prompt written notice of any such legal requirement for Lafarge to seek such court adjudication prior to the times specified above, and shall not file an application seeking such count adjudication for a minimum of 90 days following the sending of such notice unless such ninety (90) day period is waived by Greeley in its sole discretion. Upon receipt of such notice, Greeley and Lafarge shall confer with respect to what specific Greeley water supplies, consistent with Greeley's other obligations under: this Agreement including without obligation its obligation to provide Augmentation Water, Greeley shall allow to be included as supplies from which Greeley will make water available to Lafarge in such application. If, prior to the time specified in subsections a) and b) of this Section, the State Engineer's Office denies a Substitute Water Supply Plan submitted by Lafarge that relies in whole or in part upon the Boyd and Freeman Ditch Water Rights, Greeley may request that Lafarge file and prosecute an administrative or judicial appeal of such denial; proceedings at the initial level of any such appeal shall be at Lafarge's expense, while proceedings at any further level of appeal, if any, shall be at Greeley's expense. 3