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McStone Aggregates LLC to DPMS,19 May 2008 <br />Page 3 <br />structures of Way administrator for Region 5. <br />Only two types of utilities were identified by their owners as being located in or <br />near the SH-160 right-of-way: <br />a. Empire Electric Association has overhead power lines along the inside <br />edge of the right-of-way. <br />b. Mancos Rural Water District has a buried water line approximately six <br />feet deep and approximately six feet inside the McStone property. <br />We are in the process of obtaining damage agreements with these <br />organizations. Until such time as those agreements are obtained and filed with <br />DRMS, we commit to maintaining setbacks from those structures (identified as <br />H in Exhibit S, Map S-1) at all times during operations in the proposed pit such <br />that the horizontal distance from the toe of any slope excavated in the mining <br />operation to any structure to be protected is at least twice the depth of the <br />excavation. We further commit to excavating no deeper than 12 inches (1 foot) <br />below the existing grade and to filling no more than three feet (36 inches) above <br />the existing grade, within 200 feet of the right-of-way fence, under the same <br />conditions. <br />As regards the CDOT structures, which consist of the fill', subgrade and actual <br />highway pavement itself, we find ourselves in a quandary. CDOT personnel do <br />not believe that their Department can sign a notarized damage agreement, due <br />to statutory limitations on CDOT. They realize that this is a legal conflict <br />between the two statutes, and suggested several alternatives. First, CDOT <br />suggested a unilateral agreement, in which McStone Aggregates would issue a <br />signed, notarized letter indemnifying CDOT for any damage caused by McStone <br />Aggregates' operations to CDOT property along the frontage and within 200 feet <br />of the access, stating that if CDOT does not respond to the contrary within a <br />reasonable time (such as 30 days) the agreement would go into effect <br />automatically. Secondly, CDOT suggested that the CDOT permit would itself be <br />construed as a notarized agreement between CDOT and McStone Aggregates, <br />and it does specify that McStone Aggregates is responsible for repair of any <br />damage to CDOT property caused by the construction and use of the access. <br />We are willing to do either of these, if they would meet DRMS's requirements. <br />In the meantime, we suggest that the commitment to limit cut and fill as stated <br />above serves the same purpose as option #2 of Mr. Sorenson's memorandum. <br />Please note that the right-of-way fencing, the log, stone, and concrete gate, that <br />portion of the paving behind the right-of-way line, and the fence along the east <br />side of the existing driveway all belong to the McStone Aggregate <br />principals/landowners and are their responsibility to maintain, according to <br />county ordinance, CDOT, and the deed. Therefore, they would be covered by <br />the damage agreement to which we committed in #6c above. <br />We will respond separately to the concerns addressed by Ms. Nancy Segel's letter of 28 April 2008 <br />and Ms. Catherine Neva's letter of 30 May 2008. While we recognize that many of these issues are not <br />within the purview of the Division, we wish to address them all as appropriate, in order to meet Ms. Segel's <br />request that these issues be considered. We would appreciate knowing the exact time and location of the