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M-2008-078,SO-04 February 4,2022 Page 2 protected by a structure agreement would not be protected after release of the original Operator due to non-assignability or failure to assign,but there is no other obvious reason under Rule 1.12.1 that Rule 6.4.19 would be applicable, categorically or presumptively, in any other condition. o In Colorado, as with many jurisdictions in the United States,executory(i.e., promise-for-promise) contracts are generally assignable. The Prospective Operator included certain transactional documents for the specific purpose of showing that structure agreements in place with the current Operator were systematically and specifically identified, assigned and assumed. The Division indicates that it reviewed transactional documents only as to their ability to convey right of entry; however, Rule 1.12.1 indicates that the Division should make factual and legal findings if the transactional documents are inadequate to transfer responsibility for protecting structures to the Prospective Successor. Again, the Prospective Successor is engaged in the Rule 6.4.19 process by default, but we object to the Division's categorical, presumptive rejection,without any analysis, of structure agreement assignments. o Brannan stipulates that its Prowers County agreement was not assignable. We are in the process of obtaining a new agreement with Prowers County; for this reason, a form structure agreement and mailing was not included in the February 1 transmittal. Thank you for your attention to this application. We appreciate your feedback if it is possible to expedite the SO- 04 review based on any of the above clarifications, and will update the Division as other information becomes available. As noted above and previously, with SO-04 deemed complete, Brannan expects to obtain and post a new Financial Warranty shortly. Please contact Josh Oliver or me(303-853-5161,aschatz@brannanl.com)with any questions or further comment. Sincerely, BRANNAN SAND AND GRAVEL COMPANY, LLC Alex Schatz encl: Original SO application form Original Performance Warranty executed by the Prospective Operator Copy of documents transmitted to the Division electronically on February 1, 2022 Postmarks and copies of notarized letters sent to structure owners Return receipts received for certain structure letters: (1) Lamar Light& Power; City of Lamar; (2) Floriberto Rueda/Rosa Maria Rueda; (3)Atoms Energy; (4) Lower Arkansas Water Management Association; (5)Sutphin Petroleum, LLC; (6) David and Robin Rasmussen; (7) Lamar Canal; (8) Milford and Daniel Rasmussen; (9) Gary Henson and Edward Coberly; (10) Brian and Karen Nunnery Copy of structure letters returned as undeliverable: (1) Southeast Colorado Power Association Signed structure agreements: (1) Lamar Canal; (2) Lower Arkansas Water Management Association; (3) GP Aggregates, LLC; (4) Southeast Colorado Power Association