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(c) Notwithstanding any other provision of this Agreement to the contrary, <br />Applicant shall not be liable to LBDC or to LBDC's customers for any damages caused by the <br />gross negligence or willful misconduct of LBDC or its employees, agents or contractors. <br />6. Applicant's Mining Operations. <br />. (a) LBDC recognizes Applicant's full right as the owner and/or lessee of all or <br />any portion of the Site Location to conduct Mining Operations and Reclamation Activities, as <br />well as to use, sell and/or lease the reclaimed Site Location, or portions thereof, for water <br />storage purposes, or any other purposes, subject to the provisions of this Agreement. <br />(b) During the Mining Period, and except as otherwise expressly provided <br />herein, Applicant shall not conduct any future Mining Operations in a manner that results in <br />the crest of the pit being located closer than thirty-three feet (33 ft.) from the current centerline <br />of the LBDC's Structure as specified above. <br />(c) During the Mining Period, and except as otherwise expressly provided <br />herein, Applicant shall establish and maintain any future excavated slopes within the Setback <br />Area in accordance with the engineering design criteria set forth on the Slope Stability Analysis <br />for Fort Lupton Sand and Gravel Mine, dated August 31, 2004, prepared by TetraTech Rocky <br />Mountain Consultants, a copy of which is attached hereto as Exhibit B and made a part hereof. <br />(d) Following completion of Mining Operations and as part of its Reclamation <br />Activities, Applicant shall design and construct final reclaimed slopes within the Setback Area <br />in accordance with the engineering design criteria set forth on Exhibit B, and the owner of the <br />Site Location shall thereafter maintain said slopes and other Permanent Improvements in <br />accordance with the engineering design criteria set forth on Exhibit B. <br />(e) LBDC understands that LGE intends to develop the excavated Site Location <br />into one or more water storage facilities in accordance with the criteria set forth by the <br />Division of Minerals and Geology ("DMG") and by the Office of the State Engineer ("SEO") <br />for the safety and stability of water storage facilities. This Agreement neither permits nor <br />denies the Applicant's intended end use for the Site Location during the Post-Reclamation <br />Period. However, in the event that the owner or operator of the Water Storage Facility shall <br />increase the pumping capacity to allow filling or emptying of the Water Storage Facility at <br />such an accelerated rate that there exists a material risk of deterioration of the established <br />excavated slopes that threatens the safety and stability of the Structure, then the operator or <br />owner of the Water Storage Facility shall make such changes to the excavated slopes as may be <br />reasonably required by the DMG or the SEO in order to ensure that the use and operation of <br />the Structure will not be materially impaired. <br />7. Crossings and Penetrations. <br />(a) During the Mining Period and Reclamation Period, LGE shall have the <br />right to construct, install and maintain, at its sole cost and expense, crossings over the <br />Structure ("Crossings") and penetrations under the Structure ("Penetrations") in accordance <br />with the requirements of this Section. <br />FL-LB DCAgreement-Sep2004.DOC