|
<br />• expense, of whatever kind or nature, arising out of the use of, or access to, Eagle Park Reservoir
<br />for any type of recreational purpose.
<br />11. Five Year Warranty. (a) Climax shall have a duty and obligation to pay all
<br />reclamation, permitting, modification, repair and construction costs associated with Eagle Park
<br />Reservoir, the Chalk Mountain Interceptor, and the Delivery Facilities (the "Warranted
<br />Facilities") for a period of five years from the conveyance of the respective facilities to the
<br />Reservoir Company (the "Five Year Warranty"). The Five Year Warranty shall include, without
<br />limitation, any and all costs associated with correcting problems with the quality of water in the
<br />reservoir such that the water quality meets all standards for the East Fork of the Eagle River as
<br />determined by the Colorado Department of Health, or preventing seepage from the reservoir.
<br />(b) Any and all reclamation, construction, and repair of the Warranted
<br />Facilities either before Closing or during the period of the Five Year Warranty, shall be made by
<br />Climax in accordance with applicable federal, state and local dam safety, environmental,
<br />permitting and inspection requirements. Climax hereby agrees to indemnify and hold the
<br />Reservoir Company and its shareholders harmless for any loss, cost, liability or expense resulting
<br />from the reclamation, construction, or repair of the Warranted Facilities by Climax, its agents,
<br />employees or contractors, or from failure of any such facilities resulting from such activities.
<br />(c) Climax shall bear all costs and expenses associated with the reclamation,
<br />design, construction, and procurement of any necessary-governmental approvals or permits in
<br />• connection with the Warranted Facilities through the Five Year Warranty period.
<br />(d) Climax shall, at its sole cost and expense, obtain, comply with and keep in
<br />full force and effect all permits necessary for the reclamation, construction, operation, and
<br />repair of the Warranted Facilities through the Five Year Warranty period.
<br />12. Representations and Warranties of Climax. Climax represents and warrants to
<br />the Reservoir Company that:
<br />(a) Climax is a corporation duly formed, validly existing and in good standing
<br />in the State of Colorado:
<br />(b) At the Closing, the Project Rights will be free and clear of all liens,
<br />encumbrances, leases, contracts, assessments, charges, interests or adverse claims of any person
<br />or entity, except for the Existing VA Rights;
<br />(c) Climax has good and marketable title to Eagle Park Reservoir and the real
<br />property to be affected by the East Fork Pumpback, Robinson Reservoir Pumpback, and
<br />Delivery Facilities and the Chalk Mountain Interceptor easement;
<br />(d) Other than the litigation set forth in paragraph 10(c) above, to the best of
<br />Climax's knowledge after reasonable investigation, there is no action, suit, investigation or
<br />• proceeding by or before any court, arbitrator, administrative agency or other governmental
|