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05/24/2010 09:10 17193365031 <br /> <br />R M HINER CONST CO I PAGE 04 <br />or, if required by Lessee, daily basis. Lessee shall have the right, upon prior reasonable notice, to verify <br />the accuracy of the measuring devices utilized by Lessors. The fully consumable portion of said <br />deliveries shall be determined by multiplying the measured deliveries by 47.5%, or by some other factor <br />as required by the State Engineer. <br />4, Term. The term of this agreement shall be from the date of execution of this Agreement until <br />October 31, 2010. Upon expiration of this Agreement, Lessee shall have the right to negotiate terms for <br />extending the lease for another year. <br />5. U w. Lessee shall be entitled to use the Graham Ditch Water Leased pursuant to this agreement <br />for any and all beneficial uses, including, but not limited to, fully consumable augmentation and <br />replacement. <br />0. AgmEoy81, Lessee shall have the right, at its sole cost and expense, to seek and obtain State <br />Engineer approval of a SWSP, using the Graham Ditch Water as a source of augmentation or <br />replacement water, during the term of this Agreement. Lessor shall not oppose Lessee's SWSP and shall <br />fully cooperate with Lessee In connection with the request(s) by providing such information and <br />assistance as Is reasonable requested by Lessee, its water rights counsel, Its engineering consultants or <br />the Division Engineer. <br />7. Warranties and eoresentations, <br />7.1 Indeoencint Investigation and Review. Lessee acknowledges that it has <br />investigated, obtained and reviewed to its satisfaction whatever Information or <br />documents it deemed necessary which relate to or affect the yield and operation of <br />the Graham Ditch and its use of Graham Ditch Water, and it enters into this <br />Agreement based solely in reliance upon its own Investigation as to the yield and <br />suitability of the Graham Ditch Water for its purposes. Lessor makes no <br />representations, warranties, agreements or promises with respect to the yield to <br />lessee or suitability of the Graham Ditch Water for Lessee's purposes. <br />7.2 Full Authgrkv. The undersigned represent that they have full authority to enter into <br />this Agreement on behalf of the respective parties. The parties have taken all <br />actions required and secured the necessary approvals to enter Into this Agreement. <br />8. Assionabillty. This Agreement shall be binding upon and Inure to the benefit of the Lessor and <br />Lessee and their respective successors and assigns. <br />9. EhUrs Aareeme?. This Agreement constitutes the entire agreement between the parties and <br />supersedes all other prior and contemporaneous agreements, representations, and understandings of the <br />parties regarding the subject matter of this Agreement. No supplement. modification or amendment of <br />this Agreement shall be binding unless executed In writing by the parties. No representations or <br />warranties whatever are made by any party to this Agreement except as specifically set forth in this <br />Agreement or in an instrument delivered pursuant to this Agreement. <br />10. Defeg Remedles. A default shall be deemed to have occurred If either party breaches its <br />obligations hereunder and fells to cure such broach within 30 days of written notice from the non- <br />breaching party specifying the breach. Waiver or failure to give notice of a particular default or defaults <br />shall not be construed as condoning or acquiescing to any continuing or subsequent default. In addition <br />to other legal remedies available to It, Including specific performance and damages, the non-breaching <br />party shall also have the right to cancel the Agreement for noncompliance with any provision hereunder <br />by giving written notice of cancellation; provided that such party has previously given the other party <br />written notice of such noncompliance and the other party has not cured such noncompliance. <br />11. Enforcement, This Agreement shall be construed and governed in accordance with the laws of <br />the State of Colorado, and shall be deemed performable in Weld County, Colorado. This Agreement may <br />2of3 <br />Received Time May.24. 2010 9:14AM No.2702