2011-03-14_REVISION - M1977493 (41)

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h? a CM0000886 (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 conditions set forth herein (the "Pumpback Conversion Option"). The Pumpback Conversion Option shall have a term of, and shall expire if not exercised within, 89 years from the date of X ` this Agreement. The Pumpback Conversion Option may only be exercised if all of the following have occurred: (a) a Closing of the Project Rights has or simultaneously occurs as set forth in ' paragraph 6 above; (b) Climax has successfully permitted, constructed and made operational the East Fork Pumpback Facility in compliance with the specifications set forth on Exhibit N attached hereto; (c) Climax is not in breach of any of its obligations under this Agreement or any document executed at Closing; (d) Climax and the Reservoir Company have obtained a final decree, not subject to appeal, adjudicating the East Fork Pumpback Facility as an alternate point of diversion for the water rights decreed in Case No. 92CW340; and (e) Climax and the Reservoir Company have obtained a final decree, not subject to appeal, designating the East Fork Pumpback Facility as an alternative point of diversion for the exchange rights decreed in Case C, No. 95CW348.. The Pumpback Conversion Option must be exercised, if at all, by written notice r delivered to the Reservoir Company within the term of such option. At the closing upon exercise of such option, (a) the Reservoir Company shall convey the Retained AW Water to Climax by special warranty deed, free and clear of all liens, encumbrances, leases, contracts, assessments, charges or interests, using the form of deed attached hereto as Exhibit O, and (b) Climax shall convey the East Fork Pumpback Facility to the Reservoir Company, together with easements and rights of ingress and egress thereto adequate for operation of the facility, all by special warranty deed, free and clear of all liens, encumbrances, leases, contracts, assessments, charges or interests, together with all permits thereto. 9. , eepap Pumpback Facilities. (a) Climax has constructed and maintained a pond located approximately 300 feet below the toe of Dam 4 which captures groundwater, seepage or other water escaping from Eagle Park Reservoir. Water from this pond is pumped back to Robinson Reservoir or Climax's industrial process water system by means of an existing pipeline. The foregoing pond, pipeline and pumpback system are hereinafter collectively referred to as the "Dam 4 Seepage Pumpback Facility." The Dam 4 Seepage Pumpback Facility is not included among the Project Rights being purchased pursuant to this Agreement, and Climax shall be solely responsible for the operation and maintenance of the Dam 4 Seepage Pumpback Facility. Climax further agrees that it shall continue to operate and maintain the Dam 4 Seepage Pumpback Facility at any time that water captured by any component of the Dam 4 Seepage Pumpback Facility does not meet the water quality standards of the East Fork of the Eagle River as determined by the Colorado Department of Health; provided, however, that with f fd2669 "7" 1, 1111111 IIIII 1111111 IIII IIIIIlIIIII Ilill III Illll IIII IIII 666203 08/17/1998 03:10P 23 Sara Fisher 7 of 112 R 361.00 D 0.00 N 0.00 Eagle CO 0 4 Nm? OD =_ ?NS• mC? s, vm? m?- ao? aa- z oo 601 Nr N ? m a? o A x