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Water Lease Agreement <br />Page 2 <br />may decline Lessee's request for Tier 2 Water within the time periods <br />outlined above. A failure by the City to respond within the time period shall <br />be assumed to be a declination by the City to lease Tier 2 Water. <br />C. TIER 3 WATER. In addition to the Tier 1 and Tier 2 Water specified in <br />paragraphs 4.A. and 4.B., at any time during the term of this Agreement, <br />Lessee may request to lease up to an additional one hundred (100) acre -feet <br />of water (Tier 3 Water) by delivering notice of such request to the City. The <br />notice shall specify the number of acre -feet of Tier 3 Water that Lessee <br />desires to lease. Within thirty (30) days of the City's receipt of Lessee's <br />notice, the City shall provide notice to the Lessee of the amount, if any, of <br />Tier 3 Water that the City will lease to Lessee. Within thirty (30) days of the <br />Lessee's receipt of the City's notice that the City will lease Tier 3 Water, <br />Lessee shall pay to the City an additional lease fee equal to Five Hundred <br />Dollars ($500) per acre -foot. The City is not guaranteeing or providing any <br />priority for any Tier 3 Water and may decline Lessee's request for Tier 3 <br />Water within the time periods outlined above. A failure by the City to <br />respond within the time period shall be assumed to be a declination by the <br />City to lease Tier 3 Water. <br />5. LESSEE'S RESPONSIBILITY. The City shall make the City's Water available <br />each year from the City's storage account in Trinidad Reservoir on an "as is" basis. <br />The City's Water will be made available each year between April 1St and March 31St, <br />which is the City's water year. The water to be released was the subject of a change <br />of water rights in Case No. 88CW61, District Court, Water Division No. 2, State of <br />Colorado. It shall be the responsibility of the Lessee to obtain any additional <br />approvals necessary to use the leased water for Lessee's intended purposes, <br />including but not limited to approvals by the Colorado Division of Water Resources. <br />The City shall cooperate with Lessee in obtaining any required additional approvals <br />from any entity. The City makes no warranties or guarantees that such approvals <br />can be obtained. <br />6. RELEASE OF WATER. The City's Water will be made available for release <br />from Trinidad Reservoir upon the request of the Water Commissioner or Division <br />Engineer. It is the responsibility of Lessee to coordinate and contact the Water <br />Commissioner and /or the Division Engineer to arrange the release of water for <br />Lessee's benefit. <br />7. NO GUARANTEE. Because of the possibility of drought, mechanical failures <br />at Trinidad Reservoir or other extraordinary circumstances beyond the parties' <br />control, the City cannot guarantee delivery of the City's Water. In any year the City <br />cannot deliver the leased water to Lessee, the City shall refund to Lessee the fee for <br />any water requested and paid for but not delivered as requested by Lessee. Such a <br />refund shall be Lessee's sole and exclusive remedy against the City for any breach <br />or non - performance of any obligation under this Agreement. <br />