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Priola and Lena Vander Laan, a representative of Defendant, Al Frei, Jr., marked the <br />Memorial Pole to ratify and reconfirm the Fill Elevation Amendment. A photograph <br />of the Memorial Pole bearing the mark and Al Frei, Jr.'s signature is attached hereto <br />as Exhibit 5 and incorporated herein by reference. <br />28. At that same time and place, Al Frei, Jr. placed his signature to the <br />Memorial Pole memorializing Defendant's agreement to a further amendment of the <br />Contract requiring Defendant to install a 1 percent grade, descending from west to <br />east in areas to which it imported fill material, by bringing in additional fill. <br />29. Despite demand, Defendant has failed and refused to reclaim and <br />restore the Property by importing sufficient fill material to reach the Fill Elevation, <br />nor otherwise finish reclamation to the specifications contained in the Final Drainage <br />Plan, including the installation of the 1 percent grade. <br />30. Despite demand, Defendant has failed and refused to: <br />a. Remediate or remove noncompliant fill Defendant imported to the <br />Property; <br />b. Compensate Plaintiff for the damaged well; <br />c. Pay Plaintiff for sand and gravel removed from the Property at the <br />Contract rates. <br />31. Plaintiff has performed all conditions precedent to its right to bring <br />this action. <br />First Claim For Relief <br />(Breach of Contract) <br />32. By this reference, Plaintiff repeats and incorporates each and every <br />averment contained in Paragraphs 1 through 31 of the Complaint as though set forth <br />herein verbatim. <br />33. Plaintiff and Defendants entered into the Contract, and amendments <br />thereto as described above. <br />34. Defendants breached the Contract by, inter alia, failing to pay <br />appropriate amounts for removed materials; failing to import the amount and type of <br />fill required under the ADCO Permit and MLR Permit; failing to import sufficient fill <br />to reach the Fill Elevation required by the Fill Elevation Amendment; failing to finish <br />reclamation of the Property according the specification contained in Final Drainage <br />Plan; failing to compensate Plaintiff for damage to the Well per the Reimbursement <br />Agreement; and failing to complete the mining operations and reclamation in a <br />timely manner. <br />5 <br />