EXHIBIT 10.133
AGREEMENT
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This Agreement is made as of this 30th day of May, 2000 by and between
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Sun State Rock & Materials Corp., an Arizona corporation, hereinafter referred
to as "Sun State" and Ready Mix, Inc., a Nevada corporation, hereinafter
referred to as "Ready Mix."
WITNESSETH:
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WHEREAS, Sun State leases certain real property located in the general
vicinity of 115th Avenue and Beardsley Road, Maricopa County, Arizona, and
depicted and legally described on Exhibits A and B attached hereto and
incorporated herein by this reference (the property described on Exhibit A is
hereinafter referred to as the "Sun State Property"), pursuant to that certain
Sand and Gravel Pit Lease, dated April 16, 1998 (hereinafter referred to as the
"Lease"), between Sun State, as lessee, and Hope Enterprises, LLC and W.A.W.,
LLC as lessors (hereinafter referred to as "Owner"); and
WHEREAS, pursuant to the terms of the Lease, Sun State has the right to
extract sand and rock (hereinafter referred to collectively as "materials") from
the Sun State Property and to permit the use of the Sun State Property by a
third party in connection with the processing of such materials; and
WHEREAS, Ready Mix desires to utilize that portion of the Sun State
Property depicted and legally described on Exhibit C attached hereto and
incorporated herein by this reference (the "Ready Mix Site") and to purchase
sand and rock from Sun State, all for the purpose of producing and selling
Portland Cement Concrete and redi-mix products.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and of other good and valuable consideration, Sun State and Ready Mix do
hereby covenant and agree as follows:
1. Term: Unless sooner terminated as otherwise provided herein, the term
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of this Agreement shall be for a period of ten (10) years, commencing on June 1,
2000 and ending on May 31, 2010 (the "Initial Term"). Upon the expiration of the
Initial Term, the parties may, if both parties desire, extend the term of this
Agreement for such period of time and upon such terms and conditions as are
mutually acceptable to the parties.
2. Use by Ready Mix:
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A. During the term of this Agreement, Ready Mix shall have the
exclusive right to use the Ready Mix Site for the purpose of operating a
business for the production and sale of Portland Cement Concrete and the sale of
redi-mix products and performing those acts which are ancillary to the operation
of such a business, including, without limitation, the processing, manufacture,
storage, and sale of such products and the disposal of any waste materials
generated as a result thereof. Ready Mix may locate such items of equipment and
machinery and any structures and fixtures on the Ready Mix Site as it deems
necessary for the operation of its business, and any such items, fixtures and
structures shall remain the property of Ready Mix, subject to removal at Ready
Mix's will during the term of this Agreement and for a period of one hundred
twenty (120) days thereafter. Ready Mix shall not use the Ready Mix Site for any
purpose not related or ancillary to the operation of its business, without the
prior consent of Sun State.
B. In addition to the right to use the Ready Mix Site as set forth
above, Ready Mix shall have the right to use other portions of the Sun State
Property for purposes related to its business operations on the Ready Mix Site,
as follows:
i. Ready Mix, its employees, agents, invitees and customers
shall have the right to use a portion of the Sun State Property to be designated
by mutual agreement of Sun State and Ready Mix for access to and from the Ready
Mix Site necessary for Ready Mix's operations. If Sun State proposes to change
the location of Ready Mix's access to the site, Sun
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State shall notify Ready Mix of the proposed change for Ready Mix's approval.
Ready Mix shall not unreasonably withhold approval of a proposed change in the
location of Ready Mix's access as long as the proposed change in access does not
significantly increase the length of travel or significantly reduce the
convenience to Ready Mix of the access route originally designated by the
parties. Ready Mix also shall have the right to use a portion of the Sun State
property to be designated by mutual agreement of Sun State and Ready Mix for
placement of utilities necessary for Ready Mix's operations.
ii. Ready Mix shall have the right to use a portion of the pit
area located on the Sun State Property to dispose of any waste concrete and
other materials reasonably resulting from the operation of its business on the
Ready Mix Site; provided that Sun State shall from time to time designate and
direct the method of disposal and the particular area or areas to be used for
such purpose; and provided further that Ready Mix shall conduct any such
disposal in accordance with all applicable laws and shall be responsible, at its
sole cost, for obtaining any required licenses and permits.
3. Washed Sand and Rock: Water:
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A. Sun State shall use its best efforts to supply to Ready Mix washed
sand and rock, in quantities and quality required by Ready Mix for its
production of Portland Cement Concrete and sale of redi-mix products at the
Ready Mix Site. The sand supplied by Sun State shall meet the ASTM C-33
specification for fine aggregates, and Sun State shall use all good faith
efforts to maintain the average values of daily tests performed within the FM
range of 2.70 and 2.95 and within the SE range of 80 and 90. SE tests will be
performed in accordance with ASTM D 2419-95 (utilizing sample prep procedure A).
The pea gravel and rock supplied by Sun State shall meet the ASTM C-33
specification for #5 and #7 course aggregates.
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B. Sun State shall use its best efforts to maintain a reasonable
stockpile of washed sand and rock to supply Ready Mix's immediate requirements
for production of Portland Cement Concrete and sale of redi-mix products, and
Ready Mix shall keep Sun State generally informed of such requirements.
C. Nothing contained in this Agreement shall be interpreted to
prevent, restrict or otherwise limit Sun State from making unlimited sales of
the sand, pea gravel and rock aggregate it produces to third parties or to allow
the use of the Sun State Property, other than the Ready Mix Site, for any
purpose.
4. Imported Sand and Rock: If Sun State is unable, notwithstanding its
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best efforts, to supply Ready Mix with all its requirements for washed sand, pea
gravel and rock meeting the specifications set forth in this Agreement in
connection with Ready Mix's operation on the Ready Mix Site, Ready Mix may, at
its option, import additional sand, pea gravel and rock from other locations for
use in the production and sale of Portland Cement Concrete and the sale of
redimix products in accordance with this Section. Ready Mix shall notify Sun
State, in writing, at least three (3) business days before importing any sand,
pea gravel, or rock for use at the Ready Mix Site. The written notice shall
describe the type and amount of material that Ready Mix intends to import. If
Sun State cannot supply the material specified in the notice within three (3)
business days after receipt of the written notice, Ready Mix may obtain the
materials described in the notice for use at the Ready Mix Site. Sun State shall
pay Ready Mix an amount equal to fifty percent (50%) of the amount by which
Ready Mix's cost for the material imported in accordance with this Section
exceeded the amount that Ready Mix would have paid Sun State for the same type
of material under this Agreement. Ready Mix shall submit an invoice and
documentation showing the type, amount and cost of the imported material and the
amount due under this Section to Sun State. Sun State shall pay Ready Mix the
amount due under this Section within thirty (30) days after receipt of an
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invoice under this Section. Except as otherwise provided in this Section, Ready
Mix shall obtain all sand, pea gravel and rock used for production of Portland
Cement Concrete and redi-mix products on the Ready Mix Site from Sun State.
5. Payment Terms:
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A. Ready Mix agrees to pay Sun State (i) an initial price of
S5.60 per ton of concrete sand, (ii) an initial price of $5.55 per ton of pea
gravel (ASTM 3/8"), and (iii) an initial price of $5.00 per ton of concrete rock
(1" and 1/2" minus), payable in accordance with Subsection 5.C below. Said
prices shall each be adjusted each year in accordance with Subsection 5.B below.
These prices include loading of the material into Ready Mix's bins by Sun State.
B. Commencing on the first anniversary of the date of this
Agreement and on each anniversary thereafter, the prices for sand, pea gravel
and rock listed in Subsection 5.A hereof shall be adjusted for the next
succeeding year based on the following formula:
PPIE
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IP x PPIB = Adjusted Price
Where: IP = The initial price as listed in Subsection 5.A hereof.
PPIE = Producer Price Index - Table 6 Commodity Code 1321,
construction sand, gravel and crushed stone, as published by
the U.S. Department of Labor, Bureau of Labor Statistics, for
May in the year just ending;
PPIB = Producer Price Index - Table 6 Commodity Code 1321,
construction sand, gravel and crushed stone, as published by
The U.S. Department of Labor, Bureau of Labor Statistics, for
May, 2000.
provided, however, that in the event that the quotient of said ratio (PPIE/PPIB)
in any given year is less than 1.00, then in such event, 1.00 shall be
substituted for such ratio and utilized in the formula for calculating the
adjusted prices to be paid by Ready Mix (i.e., the Adjusted Price shall never be
less than the initial price set forth in Subsection 5.A hereof).
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The Producer Price Index Table 6 Commodity Code is currently indexed
to the base year 1982. In the event of a change in base years during this
Agreement, the Producer Price Index numbers used in the calculation shall also
be adjusted for relativity with one another with respect to the new base year,
if necessary, to proportionately adjust the price for the relative percentage
change in the index. In the event the Producer Price Index shall cease to be
published, then Sun State and Ready Mix shall agree upon another index to be
substituted therefor, and if they are unable to agree upon a substitute index
within a reasonable time, such matter shall be determined by arbitration in
accordance with this Agreement.
C. Sun State shall be entitled to payment for sand, pea gravel
and rock supplied to Ready Mix pursuant to the terms of this Agreement at such
time as the materials are used by Ready Mix in the production of concrete
including drum cleanout or, if not used to produce concrete, at such time as
Ready Mix removes the materials from the Sun State Property. Payments from Ready
Mix to Sun State shall be made monthly, on or before the fifteenth (15/th/) day
of each month following the month in which the materials were used in production
or removed from the Ready Mix Site.
D. i. Ready Mix agrees that, commencing in the month of
January, 2001 and for each month thereafter as long as this Agreement remains in
effect, the monthly payment Sun State receives shall not be less than an amount
(the "Monthly Minimum Payment") calculated on the basis of minimum monthly sales
volumes of sand and rock and the prices of sand and rock during the month
pursuant to Subsection 5.B. For the months of January through May 2001, the
Monthly Minimum Payment shall be $65,875, which is based on the monthly minimum
volumes of 6,875 tons of rock and 5,625 tons of sand. Beginning in June 2001,
the Monthly Minimum Payment shall be calculated based on the minimum monthly
sales volume of 6,750 tons of sand and 8,250 tons of rock multiplied by the
respective prices calculated pursuant to Subsection
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5.B. Beginning in June 2002 and thereafter as long as this Agreement remains in
effect, the Monthly Minimum Payment shall be adjusted each year on the
anniversary date of this Agreement based on the Adjusted Price for sand and rock
determined in accordance with Section 5.B hereof, but never below the Monthly
Minimum Payment for June 2001.
ii. The Monthly Minimum Payment shall be applied to adjust
the monthly payment pursuant to Subsection 5.C as follows. If the monthly
payment due under Subsection 5.C in a given month does not equal or exceed the
Monthly Minimum Payment for that month, Ready Mix shall increase the monthly
payment for that month to equal the Monthly Minimum Payment. If, in any month,
the monthly payment due under Subsection 5.C is less than the Monthly Minimum
Payment because inclement weather prevented Ready Mix from using sufficient
materials to cover the Monthly Minimum Payment, Ready Mix shall be entitled to a
credit equal to the difference between the Monthly Minimum Payment and the
monthly payment that would have been due under Subsection 5.C. Ready Mix shall
provide written notice to Sun State of the amount of the credit claimed along
with the payment submitted for that month. Ready Mix may use the credit to
reduce the amount of any future monthly payment that exceeds the Monthly Minimum
Payment for that month, provided that the payment for any month shall not be
less than the Monthly Minimum Payment. Any unused credit shall expire if not
used within twelve months. All credits shall expire upon any termination of this
Agreement, except that if Sun State terminates this Agreement pursuant to
Section 16, Sun State shall compensate Ready Mix for the amount of any unused
and unexpired credits.
iii. During any month in which Sun State is unable to
furnish, within a reasonable time after receiving an order from Ready Mix,
sufficient materials to meet Ready Mix's order, Ready Mix shall not be liable
for the Monthly Minimum Payment, and the
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monthly payment due for that month shall be the amount due under Subsection 5.C
for the materials supplied by Sun State and used by Ready Mix.
6. Measurement: Measurement of materials used by Ready Mix for
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payment purposes pursuant to Section 5 hereof shall be made by Ready Mix. For
materials used in the production of Portland Cement Concrete, measurements shall
be based upon the quantities of sand, pea gravel and rock as shown on Ready
Mix's computer printouts for the plant located on the Ready Mix Site; provided,
however, that if Ready Mix utilizes imported sand, pea gravel or rock pursuant
to Sections 4 or 8 hereof, then the sand, pea gravel and rock quantities to be
paid for by Ready Mix shall be the total sand, pea gravel and rock quantities
shown on such printouts reduced by the total quantity of imported sand, pea
gravel and rock documented by certified truck-scaled tickets and batched by
Ready Mix during the applicable monthly period. Sun State may implement
reasonable monitoring procedures to insure proper measurement of the imported
sand, pea gravel and rock, provided that any such procedures shall be at no cost
or expense to Ready Mix. Upon request, Ready Mix shall supply Sun State with
quantity usages each day for the previous day. For sand, pea gravel and rock not
used in the production of concrete on the Ready Mix Site, measurements shall be
based on the quantities of rock, pea gravel and sand removed from the Sun State
Property as shown on Sun State's truck scales.
Upon written request, Sun State shall have the right to audit Ready
Mix's books and records for the purpose of quantity verification and shall
otherwise be allowed to verify the quantities of materials being utilized
pursuant to this Agreement, including, but not limited to, checking the
calibration of Ready Mix's computer equipment to verify its accuracy. Ready Mix
shall make its books and records available to Sun State within ten (10) days
after written request is made.
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7. Taxes:
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A. Each party shall pay personal property taxes assessed on any
personal property owned or leased by that party, regardless of who is using the
equipment. Each party shall pay real property taxes assessed on property owned
by that party, regardless of who is using or occupying the real property.
B. Ready Mix agrees that it is responsible to pay Sun State any
and all transaction privilege or mining taxes legally owed as a result of sales
of material from Sun State to Ready Mix. Sun State is responsible to remit those
taxes per current law. Ready Mix agrees to be responsible for collecting and
remitting all privilege or mining taxes legally incurred as a result of the sale
of material purchased by Ready Mix from Sun State and sold by Ready Mix to
another party.
C. Any and all other privilege tax (or any other tax), fees,
permits, licenses, assessments, or similar items incurred and legally due with
respect to any real or personal property will be the responsibility of the party
owning the personal or real property on which the obligation is imposed by law,
in accordance with Subsection A of this Section.
D. Any new taxes or fees enacted subsequent to this agreement
with respect to any real or personal property shall be the responsibility of the
party who owns or leases the personal or real property, consistent with
Subsection A of this Section.
E. Any new taxes resulting from the sale of materials will be
the responsibility of the party who would be responsible for the tax pursuant to
Subsection B of this Section.
8. Force Majeure: Both parties shall be excused from their
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performance hereunder so long as, and to the extent that, performance is
prevented by reason of fire, storm, flood, war, rebellion, insurrection, riot,
strike, labor disturbance, earthquake, failure of transportation or
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delivery facilities, acts, orders or regulations imposed by Federal, State, or
other authorized governmental authority, or other causes beyond the reasonable
control of either party, hereunder, whether similar or dissimilar to the
foregoing ("Force Majeure Event"), but specifically excluding therefrom any
mechanical or other failure of production or processing machinery or equipment;
provided, however, that in no event shall any Force Majeure Event operate to
terminate this Agreement except as otherwise provided herein.
In the event that Sun State is prevented from supplying Ready Mix with
sand and/or rock as a result of a Force Majeure Event, then Ready Mix may import
sand and/or rock for so long as such Force Majeure Event shall continue in
effect and until such time as Sun State is able to resume supplying sand and/or
rock, and Ready Mix shall not be liable for the Monthly Minimum Payment during
any such period.
9. Interpretation: It is the mutual intention of the parties hereto
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that this Agreement shall be governed by the laws of the State of Arizona as to
the execution, authentication, construction, the legal obligations arising
hereunder, and as to what is to be deemed a performance, satisfaction or
discharge thereof.
10. Utilities Generally: Ready Mix shall be responsible to obtain all
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utilities necessary for its operations, including water, power, communications,
and sewage disposal. Access for any utility lines across the Sun State Property
shall be determined in accordance with Section 2.B.i. Sun State shall have no
obligation to furnish any utilities for Ready Mix's operations. Upon Ready Mix's
request, and in Sun State's sole discretion, Sun State shall agree to provide
water to Ready Mix. Ready Mix shall reimburse Sun State for the cost of any
water furnished by Sun State and used by Ready Mix for the operation of its
plant within, ten (10) days after receipt of statements from Sun State
evidencing the cost thereof.
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11. Indemnification: Ready Mix agrees to indemnify, protect and save
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Sun State and Owner harmless from any and all actions, claims, costs, losses,
damages (including, without limitation, compensatory and punitive damages),
fines, penalties, expenses, attorneys fees, litigation expenses or liabilities
from any accident, injury or damage to person or property or violation of law
occurring in, on or about the Ready Mix Site during the term of this Agreement
or in connection with the Ready Mix's operations on the Ready Mix Site,
including, without limitation, any claims relating to Ready Mix's emissions,
disposal, discharge, deposit, dumping, leaking, spilling, placing, or escape of
any toxic or hazardous substance or waste, pollutant or contaminant (as those
terms may be defined from time to time under federal, state or local laws) on,
in, under or from the Sun State Property or compliance with any applicable
environmental law; provided, however, that this provision shall not be construed
so as to have the effect of indemnifying or holding harmless Sun State or Owner
for, from and against any actions, claims, costs, losses, damages (including
without limitation compensatory and punitive damages), expenses, attorneys' fees
or liabilities which shall arise solely out of the acts or omissions of Sun
State and/or Owner.
12. Insurance: Ready Mix shall maintain in effect insurance policies
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for the Ready Mix Site and Ready Mix's operation on the Ready Mix Site or other
portions of the Sun State Property against such risks as are regularly insured
by reasonable prudent business persons operating concrete batching plants in
Arizona. Such insurance shall include, without limitation, (i) a policy or
policies insuring against liability resulting from injury or death occurring to
persons in, on or about the Ready Mix Site, or otherwise related to Ready Mix's
business operations on the Ready Mix Site, and from damage to property, the
liability coverage under such insurance to be not less than $2,000,000 for one
person injured, $2,000,000 for any one accident and $2,000,000 for property
damage, and (ii) comprehensive automobile liability coverage for vehicles used
in the operation of the Ready Mix Site, the liability on such insurance to be
not less than $2,000,000 for
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any one person insured, $5,000,000 for any one accident and $500,000 for
property damage. Sun State shall be named as an additional insured under such
policies. Insurance coverage to satisfy such requirements may be obtained
through Primary and Umbrella Excess Liability policies. At Sun State's request,
certificates of insurance shall be furnished to Sun State evidencing such
insurance coverage. These Certificates shall contain a provision that coverage
afforded under the policy or policies will not be cancelled until at least
thirty (30) days' prior notice has been given to Sun State. Insurance
requirements hereunder are not a limitation of Ready Mix's liability and
obligation to indemnify Sun State and Owner, but are simply additional security
to Sun State and Owner.
13. Notices: Any notice to be given to the parties pursuant to the
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terms of this Agreement shall be given by U.S. Mail, certified mail, return
receipt requested or by personal delivery, addressed as follows: if to Sun State
at P. 0. Box 1340, Sun City, Arizona, 85372, with a copy to Dalva L.
Moellenberg, Gallagher & Kennedy, P.A., 2575 East Camelback Road, Phoenix,
Arizona 85016-9225, and if to Ready Mix at 3430 E. Flamingo Road, Suite 100, Las
Vegas, Nevada 89121. Notices shall be deemed given when deposited, if mailed by
certified mail, otherwise when received.
14. Independent Contractor Operation: Each party shall perform this
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Agreement as an independent contractor, and in no event shall either party be
deemed to be or act as an agent or employee of the other. Ready Mix shall be
solely and completely responsible for the operation and care of its plant and
the Ready Mix Site and Sun State shall be solely and completely responsible for
its operations and the remainder of the Sun State Property.
15. Termination of Agreement: If either party fails to perform or
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abide by any of the conditions or covenants of this Agreement, the other party
may terminate this Agreement (and in the event of a default by Ready Mix, Sun
State may terminate Ready Mix's right
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to possession of the Ready Mix Site); provided that the non-defaulting party has
first given the defaulting party written notice of any such default and thirty
(30) days thereafter to cure the same, and the defaulting party has not
perfected a cure in such 30-day period. The foregoing shall not limit any rights
or remedies otherwise available at law or in equity to the non-defaulting party
and the right of Sun State to receive payment for any materials already
purchased by Ready Mix.
16. Termination by Sun State: In the event that the character of the
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raw material being utilized by Sun State to produce the washed sand and rocks
changes, and such change results in the total of all costs directly or
indirectly related to the production of said washed sand and rock exceeding the
prices being paid by Ready Mix for said materials, Sun State may, at its option.
terminate this Agreement without further liability whatsoever to Ready Mix. In
the event of a termination of this Agreement pursuant to this Section 16, Ready
Mix may, at its option, notify Sun State in writing within thirty (30) days
after receipt of notice of termination that it desires to enter into a ground
lease to maintain its operations on the Ready Mix site at a monthly lease rate
to be negotiated by the parties in good faith. If Ready Mix does not elect to
enter into a ground lease, or if the parties are unable to negotiate a lease,
the parties shall mutually agree to a time schedule during which Ready Mix shall
be allowed to remain on the Ready Mix Site before having to vacate; provided
however, that such time period shall not exceed six (6) months after the
notification by Sun State to Ready Mix of its intent to terminate the Agreement
pursuant to this Section.
17. Assignment: Ready Mix shall not: (i) assign, transfer, pledge or
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hypothecate its rights under this Agreement without Sun State's prior written
consent, (ii) sublet or lend the Ready Mix Site or any part thereof to any
unaffiliated party, or; (iii) permit the Ready Mix Site, or any part thereof, to
be used by anyone other than Ready Mix and Ready Mix's employees and agents
performing activities authorized pursuant to the terms of this Agreement.
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18. Laws and Permits: Ready Mix, at its sole cost and expense, shall
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comply with all laws, ordinances and regulations, now or hereafter in effect,
relating to the possession, operation, or maintenance of its plant and the Ready
Mix Site, and shall obtain any licenses or permits necessary for the operation
of its plant.
19. Right of Inspection. Sun State shall have the right at all
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reasonable times to enter upon the Ready Mix Site, and shall be given free
access thereto for the purpose of inspection and verification of compliance with
this Agreement.
20. Merger: This writing represents the entire Agreement between the
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parties. No other writings, verbal understandings or agreements of any nature
exist between the parties concerning the subject matter of this Agreement.
21. Changes: Any changes, modifications or addenda to this Agreement
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must be evidenced in a writing which is signed by all parties hereto before such
shall be considered binding.
22. Arbitration: All claims, disputes and other matters in question
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between the parties hereto arising out of, or relating to, this Agreement or the
breach thereof shall be decided by arbitration unless the parties mutually agree
otherwise. In any such event, the party desiring arbitration shall give notice
to that effect to the other party, specifying in such notice the name and
address of the person designated to act as an arbitrator on its behalf. Within
fifteen (15) days after receipt of such notice, the other party shall give
written notice to the first party specifying the name and address of the person
designated to act as arbitrator on its behalf. If the second party fails to
notify the first party of the appointment of its arbitrator within such 15-day
period, then the appointment of a second arbitrator shall be made by the then
presiding Judge of the Superior Court of the State of Arizona for the County of
Maricopa upon the request of the first party, and the second party shall not
raise any question as to the Court's full power and jurisdiction to entertain
the application and make the appointment and the person so appointed shall be
the second arbitrator.
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The arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed. If the two arbitrators shall not agree upon the
decision to be made in such dispute, they shall, themselves, appoint a third
arbitrator who shall be a competent and impartial person, and in the event they
are unable to agree upon such appointment within ten (10) days, the, third
arbitrator shall be selected by the parties themselves if they can agree thereon
within a further period of fifteen (15) days. If the parties do not so agree,
then either party, on behalf of both, may request the then presiding Judge of
the Superior Court of the State of Arizona for the County of Maricopa to appoint
such third arbitrator, and the other party shall not raise any question as to
the Court's full power and jurisdiction to entertain the application and make
the appointment and the person so appointed shall be the third arbitrator. The
decision of the arbitrators so chosen shall be given within a period of thirty
(30) days after appointment of such third arbitrator. The decision in which any
two of the arbitrators so appointed and acting hereunder concur shall in all
cases be binding and conclusive upon the parties. Each party shall pay the fees
and expenses of the arbitrator appointed by such party, or in whose stead as
above provided such arbitrator was appointed, and the fees and expenses of the
third arbitrator, if any, shall be borne equally by both parties. Any such
arbitration shall be conducted in accordance with the rules then in effect of
the American Arbitration Association.
The foregoing agreement to arbitrate shall be specifically enforceable
under the laws of the State of Arizona. The award rendered by the arbitrators
shall be final, and judgment may be entered upon it in accordance with
applicable laws in any court having jurisdiction thereof. Any demand for
arbitration shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen, and in no event shall it be made after the
date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statute of
limitations. Unless otherwise agreed in writing, the parties shall carry on the
work required hereunder during any arbitration proceedings.
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23. Warranty of Title: Sun State represents and warrants that (i) it
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is presently the lessee of the Sun State Property, and (ii) it has the authority
to enter into this Agreement and perform its obligations hereunder and to grant
to Ready Mix all rights granted hereby. Sun State further represents and
warrants that it will not do or suffer anything to be done in connection with
the Lease which will interfere with or impair the rights of Ready Mix hereunder.
24. Binding Effect: This Agreement shall inure to the benefit of and
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be binding on the parties hereto, their successors, assigns, heirs and personal
representatives.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in duplicate as of the date first hereinabove written.
SUN STATE ROCK & MATERIALS CORP.
/s/ [ILLEGIBLE]^^ /s/ Deloris C Walker
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Attest By: Deloris Walker
Its: President
READY MIX, INC.
/s/ [ILLEGIBLE]^^ /s/ Robert A DeRuiter
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Attest. By: Robert DeRuiter
Its: General Manager
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