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<br />(e) Subject to the requirements of Section 3.2 hereof, payments <br />for additional capacity will be made annually by Buyer <br />commencing on or before December 15, 1999. Between <br />September 30 and November 30 of each year, a <br />determination of the then existing capacity of the pit steal! be <br />made. Until such time as the final engineering design has <br />been completed for the finished water reservoir and <br />necessary permits obtained by Buyer, finally determining the <br />high water level, the elevation of high water level set forth in <br />Section 3.1(d) hereof shall be used for such calculations. <br />Payment shall be made for the additional capacity at the rate <br />of $921.92 per acre-foot, escalated at 6% per year which shall <br />be based on a beginning date of December 15, 1998 as <br />described in Exhibit C attached hereto. Seller shall also keep <br />accurate records of the material excavated from the pit, either <br />in terms of tons across the scale or volume added to the <br />stockpile. Buyer may elect to base any annual payment upon <br />such ton or volume records, which payment shall be <br />calculated based upon 1.50 tons of material per cubic yard. <br />The equivalency of weight to volume is an average and is <br />intended to be used regardless of the composition of the <br />material removed. The annual payment for the period ending <br />December 15, 1999 will be based upon records of removal <br />starting November 15, 1998. If Seller elects, it may, at its own <br />expense, survey the site and calculate the additional capacity. <br />Seller will provide such calculations to Buyer. If the parties <br />are unable to agree as to the additional capacity, they will <br />jointly select a qualified independent third party consultant <br />who will make the binding determination of the then-existing <br />capacity. Buyer and Seller will share the cost of the qualified <br />consultant. <br />(f) Final payment shall be based on an appropriate detailed <br />survey of the final reservoir capacity completed at Buyer's <br />cost on or before December 31, 2006. The operational <br />capacity for the Tina! payment will be based upon the volume <br />of reservoir space below the high water level with 1.875 feet <br />of freeboard, with side slopes completed to the slope required <br />by the mined land reclamation permit. Such survey shall <br />specify the elevation of high water level which was utilized to <br />4 <br />