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33. Destruction of the Improvements would be a violation of the United States and <br />Colorado Constitutions. <br />34. Destruction of the Improvements by DMG contrary to the wishes of MidCon is in <br />contravention of the Colorado Surface Coal Mining Reclamation Act, C.R.S. § 34 -33 -101, et seq. <br />36. DMG's mine reclamation activity in Coal Basin is expressly subject to the <br />provisions of the Liquidation Plan which incorporates the Reclamation Plan. <br />37. In carrying out the reclamation activities under the Reclamation Plan, DMG is <br />acting pursuant to a contract entered into by, among others, DMG, MCR and MCR's creditors who <br />are all a parties to and bound by the Liquidation Plan which was approved by the bankruptcy court. <br />38. As owner of property upon which some of the reclamation activities have taken <br />place and will occur in the future, MidCon is a third -party beneficiary of the Reclamation Plan. <br />39. DMG has stated its intention to perform reclamation in Coal Basin such that it will <br />exhaust all funds available to it under the Bankruptcy Liquidation Plan before completing all <br />reclamation. Further, some of the reclamation that DMG has performed on MidCon's property has <br />been substandard and in breach of the Reclamation Plan's requirements. <br />40. MidCon has been damaged by DMG's failure to comply with the Reclamation <br />Plan for reclamation already performed on MidCon's land and will be further damaged should <br />DMG exhaust all the reclamation funds without completing reclamation on MidCon's property. <br />42. MidCon owns certain real property in Garfield County, Colorado known as <br />the "Coal Load Out Facility ". The Coal Load Out was purchased by MidCon from MCR which <br />used the Coal Load Out as part of its mining operations and consequently it is included as part of <br />the Reclamation Plan. <br />CIVIL No. 97 cv 131 -3 <br />SECOND CLAIM FOR RELIEF <br />(Breach of Contract for Reclamation Work) <br />35. MidCon hereby incorporates all previous averments as if set forth in full. <br />THIRD CLAIM FOR RELIEF <br />(Declaratory Judgment regarding Coal Load Out) <br />41. MidCon hereby incorporates all previous averments as if set forth in full. <br />43. MidCon is in the process of completing all reclamation on the Coal Load Out. <br />-6- <br />MIDCON REALTY, LLC'S <br />THIRD -PARTY COMPLAINT <br />