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CMC001042 <br />lie <br />completion of any curative construction, whereupon the Reservoir Company shall have 21 days <br />from the date when the flow of the East Fork of the Eagle River at the diversion point is 7.5 cfs <br />or greater in which to inspect, operate and retest the Facility and provide Climax with written <br />notice of any remaining defects in the Facility. The requirement that Climax construct the <br />Facility in accordance with the Facility Specifications and all requirements of the 404 Permit, as <br />well as Climax's warranty that the Facility will operate without any leakage at a capacity of 6 <br />cfs, shall be deemed fully satisfied if the Reservoir Company does not provide written notice of <br />alleged defects within either of said 21 day periods. Prior to that period of time, Climax shall be <br />responsible for maintaining the Facility. Any disputes under this subparagraph 2(a) about the <br />adequacy of the construction and operational capacity of the Facility shall be governed by the <br />arbitration provisions of paragraph 4.9 and the subparagraphs thereunder of the April 9, 1993 <br />Purchase Agreement between Climax and Vail Associates, Inc. (the "1993 Agreement" ). <br />(b) Climax shall assign to the Reservoir Company at the Closing all <br />manufacturer and contractor warranties for the construction of and the personal property <br />comprising the Facility, and provide the Reservoir Company the opportunity to purehase at the <br />Reservoir Company's expense an extension of all such warranties. <br />(c) Provided that Climax constructs the Facility in accordance with the <br />requirements of the 404 Permit as provided in subparagraph 2(a), Climax's permitting <br />obligations for the Facility shall be satisfied upon Climax's assignment to the Reservoir <br />Company at the Closing of the 404 Permit and all remaining rights in and to the "1041 Permit" <br />issued by the Board of County Commissioners for Eagle County on July 27, 1988, nunc pro tunc <br />July 13, 1998 (File No. 1041-0015). <br />3. Document Escrow. (a) Simultaneous with the execution of this Agreement, the <br />Reservoir Company shall place into.escrow a deed in the form of the attached Exhibit 6 for the <br />conveyance to Climax of the Retained AW Water as provided for in paragraph 8 of the 1998 <br />Agreement. Exhibit 6 is identical to the form of the deed attached to the 1998 Agreement as <br />Exlubit O. The Reservoir Company shall also place into escrow: (i) a deed in the form of the <br />attached Exhibit 7 for the conveyance to Climax of the AW Delivery Easement as defined in <br />Article 2.6 of the 1993 Agreement, and (ii) an amendment in the form of the attached Exhibit 8 <br />of the September 16, 1998 Grant of the Chalk Mountain Interceptor Easement, which ' <br />amendment shall release the term in the first numbered paragraph of the easement that provides <br />for the delivery of Arkansas Well water through the easement. The escrow agent shall be an <br />entity mutually acceptable to the Parties. In the event this Agreement terminates pursuant to <br />paragraph 12 below and the closing of the Pumpback Conversion Option does not occur pursuant <br />to paragraph 4 below, the escrowed documents set forth in this paragraph 3 (a) shall be returned <br />to the Reservoir Company. During the period that the aforementioned documents are.in escrow, <br />the Reservoir Company shall have the exclusive use of the Retained AW Water and non- <br />exclusive use of the AW Delivery Easement. <br />(b) Simultaneous with the execution of this Agreement, Climax shall place <br />into escrow (i) a bill of sale in the form of the attached Exhibit 9 for the transfer of title to the <br />Reservoir Company of the personal property comprising the Facility; (ii) a deed to the Reservoir <br />Company in the form of the attached Exhibit 10 for the land beneath the pumphouse, diversion <br />fd10287 3 <br />