2011-03-14_REVISION - M1977493 (60)

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CM0001040 PUMPBACK FACILITY & RESERVOIR ENLARGEMENT AGREEMENT This AGREEMENT (the "Agreement") is executed and effective this -L-41 day of January, 2007, by and between the CLIMAX MOLYBDENUM COMPANY, a Delaware corporation, whose address is Climax Mine, Hwy 91, Climax, CO 80429 ("Climax"), and the EAGLE PARK RESERVOIR COMPANY, a Colorado mutual ditch and reservoir company, whose address is 846 Forest Road, Vail, CO 81657 (the "Reservoir Company"). Collectively these entities are also referred- to as the "Parties." RECITALS A. Climax and the Reservoir Company ace Parties to the Purchase and Sale Agreement dated June 17, 1998., recorded in the real property records of Eagle County, Colorado at Reception No. 666203, and recorded in the real property records of Lake County, Colorado on August 28, 1998, at Reception No. 317835 (the "1998 Agreement"); B. Pursuant to paragraph 8 of the 1998 Agreement,. Climax has the option to permit, construct and make operational the East Fork Pumpback Facility (the "Facility") in accordance with the specifications set forth in Exhibit N of the 1998 Agreement. Upon completion of the Facility and the satisfaction of all other conditions set forth in said paragraph 8, Climax has the option to exchange the Facility for the Retained AW Water, as that term is defined in the 1998 Agreement. The option to exchange the Facility for the Retained AW Water is referred to in the 1998 Agreement and this Agreement as the "Pumpback Conversion Option"; C. Climax desires to exercise the Pumpback Conversion Option. To that end, Climax has obtained a dredge and fill permit from the U.S. Army Corps of Engineers (the "404 Permit') to construct the Facility to a capacity of 6 cfs in accordance with the specifications contained in the attached Exhibit 1. D. The Reservoir Company desires to enlarge the capacity of Eagle Park Reservoir by approximately 155 acre feet by raising the existing spillway by an additional 2.5 feet. To enable the Reservoir Company to accomplish this reservoir enlargement, the Reservoir Company needs to obtain from Climax approximately (i) 0.348 acres of additional land that will be inundated by the reservoir enlargement more particularly described in the attached Exhibit 2; (ii) 0.627 acres of land that will be inundated during a maximum precipitation event more particularly described in the attached Exhibit 3; and (iii) 1.009 acres of land required to develop wetlands as mitigation for the reservoir enlargement more particularly described in the attached Exhibit 4 (collectively the "Reservoir Enlargement Lands"). E. The Reservoir Company owns 1.987-acres of land in the vicinity of Eagle Park Reservoir that is not required for the operation, maintenance and repair of Eagle Park Reservoir more particularly described in the attached Exhibit 5 (the "Surplus Lands"). MOM Exhibit 33