2011-03-30_REVISION - M1977493 (16)

Home Browse Search

J ' r t .r (f) Both the Reservoir Company and Climax shall execute and deliver to each • other the Chalk Mountain Interceptor Operating Agreement in the form attached hereto as Exhibit L, which Chalk Mountain Interceptor Operating Agreement includes a guarantee that all out of priority diversions of water into or the collection of water by the Chalk Mountain Interceptor that is tributary to Ten Mile Creek will be fully replaced and balanced using water rights owned by Climax pursuant to any final decree, not subject to appeal, in Division No. 5 Case Nos. 92CW233 and 336. 7. Amendment to 1993 Agreement. (a) The 1993 Agreement contemplated that the Eagle Park Reservoir Project would be owned by a mutual ditch and reservoir company to be formed and called the Fremont Pass Water Company, and that rights to firm yield from the Project would be allocated based on the ownership of shares in such company. Simultaneously with the execution of this Agreement, VA and Climax shall execute a Third Amendment to the 1993 Agreement in the form attached hereto as Exhibit M. The Third Amendment provides that (i) the name of the mutual ditch and reservoir company is now the Eagle Park Reservoir Company; (ii) if the Closing does not occur hereunder, and should VA nevertheless exercise the VA Conversion Option, VA or its assigns will be conveyed preferred stock in the Eagle Park Reservoir Company equating to the first 500 acre feet annually of the firm yield of Eagle Park Reservoir; (iii) the terms of the VA Conversion Option, Climax Conversion Option, 600 AF Option and Storage Conversion Option are extended by a period 30 days beyond the dates provided in paragraph 5 above; (iv) if the Closing does occur hereunder, the parties shall have no obligation to enter the operating agreement contemplated by the first sentence of paragraph • 3.4(b) of the 1993 Agreement; and (v) if the Closing does occur hereunder, Climax will not be in violation of, and shall have fulfilled its obligations under, paragraph 3.3 of the 1993 Agreement, and shall have no liability to VA or the Reservoir Company for failure to satisfy the Climax Contingencies as such term is defined in the 1993 Agreement. (b) In the event this Agreement terminates without a Closing, then the parties shall have no further rights or obligations hereunder. It is expressly acknowledged and agreed, however, that in the event of such termination, the 1993 Agreement, including all of VA's Existing EPR Rights and AW Water Rights, shall remain in full force and effect in accordance with the terms and conditions contained therein, except as amended in the Third Amendment described in Paragraph 7(a) above. (c) Regardless of whether or not there is a Closing hereunder and whether or not this Agreement is terminated, VA shall retain the Enlargement Option. 8. The East Fork Pumpback Option. Climax may, in its sole discretion, elect to permit, construct and make operational a diversion, pump and pipeline facility that can divert 6 cfs of water from the East Fork of the Eagle River and deliver such water to storage in Eagle Park Reservoir (the "East Fork Pumpback Facility"). In consideration of the terms and conditions of this Agreement, the Reservoir Company hereby grants Climax the option to obtain the Retained AW Water in exchange for the East Fork Pumpback Facility on the terms and • fd2669 -6-