Exhibit 10.4
AGREEMENT
THIS AGREEMENT dated this 8/th/day of December, 1998, between
the [deletion] and Eldorado Artesian Springs, Inc. ("Eldorado") is as
follows.
WHEREAS, Eldorado desires to acquire a reliable source of
replacement water which is suitable for the purpose of replacing
depletions attributable to uses of water in Eldorado's operations in
Eldorado Springs, Colorado; and
WHEREAS, [deletion] has facilities and rights which are suitable
for storing, exchanging, and effectuating the delivery of such
replacement water to replace depletions arising from Eldorado's
operations; and
WHEREAS, [deletion] is presently negotiating an agreement with
the [deletion] through which [deletion] anticipates that it will acquire
one unit of the [deletion] from the [deletion];
NOW, THEREFORE, in consideration of an initial payment by
Eldorado to [deletion] of $[deletion], the mutual promises set forth
below and other good and valuable consideration, receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows;
1. [deletion] will conclude its negotiations with the [deletion]
through which [deletion] anticipates it will be entitled to acquire the
[deletion] Unit (equating up to 100
acre-feet of fully consumable water) and the right to deliver the [deletion]
Unit water through an existing pipeline and a proposed new pipeline spur into
[deletion] Reservoir.
2. Any such agreement between [deletion] and the [deletion] must be
concluded within ninety (90) days of this Agreement, unless such time period is
extended by mutual agreement of the parties. The terms of the [deletion]
Agreement must be fully acceptable to Eldorado; or the [deletion] initial
payment will be refunded to Eldorado and this Agreement will terminate.
3. Upon execution of an acceptable [deletion] Agreement, Eldorado shall
secure the funds for the payment of [deletion] to the [deletion] pursuant to the
terms of the [deletion] Agreement. Such payment shall be made at the time of the
conveyance of the [deletion] Unit after entry of an acceptable decree as
described in paragraph 5., below. The said [deletion] shall be consideration for
the [deletion] Unit and consideration for [deletion] right to use the new
delivery pipeline to deliver water attributable to the [deletion] Unit into
[deletion] for the benefit of Eldorado.
4. Immediately upon execution of this Agreement, [deletion] and Eldorado
will cooperate in obtaining any necessary approvals, authorizations from, and
inclusions into the [delete] and the Municipal Subdistrict which will enable use
of the [deletion] Unit by Eldorado for replacement purposes.
5. Prior to final action on inclusion of Eldorado into the [delete] and
Municipal Subdistrict, the parties shall jointly seek the consent of the
[delete] to the filing of an application by Eldorado in the District Court,
Water Division No. 1, whereby injurious out-of-
priority depletions attributable to Eldorado's uses of water will be fully
replaced by exchange or direct release of water stored pursuant to the
[deletion] Unit in [deletion]. If such consent is not forthcoming, such
application will be withdrawn and all amounts paid by Eldorado to [deletion]
shall be returned. Eldorado will be the sole applicant in the case, but the
parties will cooperate in all significant case management decisions and on the
terms and conditions included in any proposed decree submitted to the Court for
consideration.
6. Within thirty (30) days after obtaining a final decree approving a
mutually acceptable plan for augmentation:
A. [deletion] or Eldorado shall exercise the option to purchase
the [deletion] Unit pursuant to the terms of the [deletion], Eldorado
shall make the [deletion] payment described in paragraph 3 to [deletion]
and [deletion] shall pay [deletion] to [deletion];
B. Eldorado shall pay [deletion], payable as follows: [deletion]
down and the balance of [deletion] payable in ten (10) equal annual
installments, including principal and interest at the rate of nine
percent (9%) per annum. This amount shall include consideration for the
operation of the exchange of water within the [deletion] System so as to
make water attributable to the [deletion] Unit available at the
headworks of the Community Canal at Eldorado Springs, Colorado and/or to
make direct releases of such water from [deletion] to replace otherwise
out-of-priority depletions attributable to Eldorado's use of water at
Eldorado Springs, Colorado, pursuant to the terms and conditions set
forth in the decree described in paragraph 5., above.
7. [deletion] agrees that it will operate its system so as to make water
available at the headworks of the Community Canal at Eldorado Springs, Colorado
and/or to make direct
releases of such water from [deletion] to replace otherwise out-of-priority
depletions attributable to Eldorado's use of water at Eldorado Springs,
Colorado, pursuant to the terms and conditions set forth in the decree described
in paragraph 5., above.
8. [deletion] and Eldorado further agree that if Eldorado's future
augmentation requirements shall extend beyond the 100 acre-feet of water, which
is the subject of this Agreement, the parties will negotiate in good faith for
additional water which may be added to the Eldorado augmentation plan pursuant
to terms and conditions similar to those set forth herein.
Dated the day and date above written.
[deletion] ELDORADO ARTESIAN
SPRINGS, INC.
By:_______________________________ By:____________________________
_______________________, President ____________________, President
STATE OF COLORADO )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this 8/th/ day
of December, 1998, by _________________, President, [deletion].
WITNESS my hand and official seal.
My Commission Expires:_________________________
________________________
NOTARY PUBLIC
________________________
________________________
Telephone:______________
STATE OF COLORADO )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this 8/th/ day
of December, 1998, by Xxxx Xxxxxx, President, Eldorado Artesian Springs, Inc..
WITNESS my hand and official seal.
My Commission Expires:______________________
_______________________
NOTARY PUBLIC
_______________________
_______________________
Telephone:_____________
