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1 'r• <br />3. Transfer and Leaseback of Boyd and Freeman Ditch Water 1Zight : As4?3 <br />full consideration and rent for the permanent lease of the Augmentation Water describe <br />in Section 1 (subject to an assignee's possible obligation to pay the storage and pumping <br />fee upon assignment-described in Section 2), Lafarge agrees to transfer, convey and 8" <br />assign by bargain and sale deed, stock assignment and irrevocable stock power to Gre4y <br />all of its right, title and interest in water rights decreed to the Boyd and Freeman Ditch <br />and associated with its 550 shares of stock in the Boyd Irrigation Company (the "Boyd F <br />and Freeman Ditch Water Rights') within 15 days of the effective date of this F <br />Agreement. Lafarge shall also execute covenants prohibiting irrigation of its 35th Avefiim <br />Pit Site with any water available under shares of stock in the Boyd Irrigation Company`p <br />except as may temporarily be required to allow Lafarge to meet its reclamation' <br />obligations under the mining permit for the 35th Avenue Pit Site. • In partial satisfaction' <br />of Greeley's Augmentation Water lease obligation in Section 1 hereof, Greeley may eldct <br />to make Augmentation Water available to Lafarge under the Boyd and Freeman. Ditch <br />Water Rights for use in Lafarge's Substitute Water Supply Platt to replace evaporat ve? <br />water losses or other water depletions oeeurring, at Lafarge's 35th Avenue (kavei Pit <br />Site, or other sand and gravel mining sites located between the headgates of Greeley s <br />Canal No. 3 and the Ogilvy Ditch (the "Adjacent.Sites') during the April-October ` <br />period.. Lafarge agrees to use best efforts to continue to obtain any necessary approvals'; <br />related to the use of water available under the Boyd and Freeman Ditch Water Rights 4 <br />any renewals of such Substitute Water Supply Plan; provided, however, that nothing' <br />herein shall affect Greeley's obligation to deliver Augmentatioii Water from other <br />sources in the event that a Substitute Water Supply Plan using the-Boyd and Freeman <br />Ditch Water Rights is not approved by the State Engineer's Office. Unless otherwise <br />requiredby law, absent Greeley's written approval, I;afarge agrees not to seek court <br />adjudication of any plan for augmentation! involving Augmentation Water to be released` <br />from Greeley during the April-October period until the later of a) ten full Lease Years .:.•; . ' <br />after the effective date of this agreement. or b) completion of 0 required none . <br />reclamation activities on the 35th Avenue Pit Site and the Adjacent Sites. Lafarge shall <br />give Greeley prompt written notice of any such legal requirement for Lafarge to seek <br />such court adjudication prior to the times specified above, and shall not file an i . <br />application seeking such court adjudication for a minimum of 90 days following the <br />sending of such notice unless such ninety (90) day period is waived by Greeley in its sole <br />discretion. Upon receipt of such notice, Greeley and Lafarge shall confer with respect t6 <br />what specific Greeley water supplies, consistent with Greeley's other obligations under;• <br />this Agreement including without obligation its obligation to provide Augmentation <br />Water, Greeley shall allow to be included as supplies front which Greeley will make <br />water available to Lafarge in such application. If; prior to the time specified in <br />subsections a) and b) of this Section, the State .Engineer's Office denies a Substitute <br />Water Supply Plan submitted by Lafarge that relies in whole or in part upon the Boyd and <br />Freeman Ditch Water Rights, Greeley may request that Lafarge file and prosecute an <br />administrative or judicial appeal of such denial; proceedings at the initial level of any <br />such appeal shall be at Lafarge's expense, while proceedings at any further level of appeal, if any, shall be at Greeley's expense. <br />3