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THIRD CLAIM FOR RELIEF <br /> (Breach of Contract for Re-Revegetation) <br /> 35. MCR and Creditors'Trustee hereby incorporate all previous averments as set forth in <br /> full. <br /> 36. As part of its reclamation activities, DMG has reclaimed and re-vegetated certain <br /> benches and roads that provide access to some of the mine portals in Coal Basin. <br /> 37. DMG has caused and in the future will cause work to be done on and near mine <br /> portal areas accessed by the re-vegetated roads which will require significant motorized vehicle traffic <br /> over the re-vegetated roads such that once the work is completed, the roads will have to be reclaimed <br /> and re-vegetated a second time. <br /> 38. No where in the Reclamation Plan is there authority for re-disturbing and re- <br /> vegetating roads for a second time. <br /> 39. DMG has breached the Liquidation Plan contract by taking actions to spend <br /> reclamation funds for activities not authorized in the Reclamation Plan. <br /> 40. MCR and Creditors'Trustee have been damaged by the actions of DMG because less <br /> money will be available to pay residual claims under Section 4.3.5 of the Liquidation Plan. The amount <br /> of damages will be proven at trial. <br /> FOURTH CLAIM FOR RELIEF <br /> (Breach of Duty of Good Faith and Fair Dealing <br /> 41. MCR and Creditors'Trustee hereby incorporate all previous averments as set forth in <br /> full. <br /> 42. All contracts entered into within the state of Colorado contain an implied covenant of <br /> good faith and fair dealing. <br /> 43. DMG's reclamation activities in Coal Basin since 1994 have been carried out in a <br /> manner that has incurred expenses far in excess of what is reasonable. <br /> 44. DMG has wasted money by, among other things, engaging in experimental steep <br /> slope vegetation attempts and re-vegetating areas more than once as detailed above. In addition, DMG <br /> has accepted bids far higher than are reasonable for the work performed. <br /> AMENDED <br /> -7- <br /> ClVv.No. 97 cv 131-3 THIRD-PARTY Cots LAINT <br />