2010-02-11_REVISION - M2000158 (6)

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3. Modification of June 2001 Agreement and August 2008 Agreement. 3.1 At the time of the Closing identified in paragraph 8.1 below, Platte shall deposit with Land Title Guarantee Company, as escrow agent (the "Escrow Agent"), $75,000, which shall be distributed to Western in accordance with an agreement between Platte and the Escrow Agent. 3.2 Western agrees to modification of that certain agreement between Western and Platte, Platte Sand & Gravel LLC and Tom Sharkey dated June 26, 2001 ("June 2001 Agreement") and that certain agreement between Western and Platte Sand & Gravel LLC dated August 12, 2008 ("August 2008 Agreement), to cancel Platte's responsibility for installation of any measuring devices, weirs, and/or clocks set forth in the June 2001 Agreement and the August 2008 Agreement. Western may or may not install and maintain the measuring devices at its own expense. 3.3 In the event that Western determines to install the measuring devices called for by the June 2001 Agreement and the August 2008 Agreement, and Western's costs for the installation of these measuring devices exceed the $75,000 to be paid under paragraph 3.1 above, Western shall submit detailed invoices to Platte reflecting the entire cost of such installation and Platte shall, within 30 days, pay such costs in excess of $75,000 to Western, except in no event shall the total amount to be paid to Western by Platte under sections 3.1 and 3.3 exceed $100,000. Western shall be responsible for costs in excess of $75,000 associated with the installation of any measuring devices not specifically required by or contemplated in the June 2001 Agreement or the August 2008 Agreement. 3.4 Western acknowledges that Platte's 24 shares of stock in the Western Mutual Ditch Company and the 7 efs Right are not encumbered by or are a part of the June 2001 Agreement and that the June 2001 Agreement and the August 2008 Agreement permit any losses of water to Western as a result of mine dewatering to be made up from any suitable replacement source. 3.5 Western agrees that so long as ? gravel mining activity is conducted on the Property solely within areas that have been lined for storage, where such lined storage meets the design and performance standards referenced in the State Engineer Guidelines for Lining Criteria for Gravel Pits (August 1999), as such may be amended, and is otherwise in compliance with the applicable standards of the Colorado Division of Water Resources, then no water losses attributable to mine dewatering shall be deemed to occur, and no replacement of losses shall be required to offset activities occurring within the boundaries of the certified liner. The parties acknowledge that the provisions contained in this paragraph 3 control over any contrary provision contained in the June 2001 Agreement or the August 2008 Agreement. 3.6 This Agreement shall be signed and affirmed by Platte Sand & Gravel, LLC in order to effectuate and make binding the modification contained in this section 3 to the June 2001 Agreement and the August 2008 Agreement on Platte Sand & Gravel LLC, as a party to those agreements.