EXHIBIT 10.94
LEASE AND AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of January, 1998, by and
between, Ken Nosker, HC6X Box 32, San Patricio, New Mexico 88348, (Lessor), and
Meadow Valley Contractors, Inc. (Lessee), 4411 S. 40th St. Phoenix, AZ 85040.
WHEREAS, Lessor has a valid ownership on certain lands hereinafter more
particularly described and identified: and,
WHEREAS, Lessee desires to obtain the right and privilege to enter into and upon
said lands for the purpose of quarrying and mining such rock materials as may be
found thereon, and crushing or otherwise processing said rock materials as
aggregate for commercial purposes.
NOW, THEREFORE, for and in consideration of sum of One and no/100 dollars
($1.00) and other good and valuable consideration of the agreements hereinafter
set forth, Lessor has demised, leased and let all of those certain lands and
property situated in Lincoln County, New Mexico, SE 1/4 of SW 1/4 & W 1/2 of SE
1/4 & SE 1/4 of SE 1/4, Sec 16 TWP 10S Range 15E, NMPM approximately 160 acres,
and including any and all right, title and interest of Lessor in and to any
and all rock materials and deposits thereof contained in said property, and all
rights-of-ways easements, together with the right to remove the same from the
said premises whether by Lessee or it's agents. Water will be made available at
existing wells by owner for $1.50 per MG. Meadow Valley Contractors, Inc. will
assume all power and pumping costs.
A $5,000.00 deposit for minimum royalty will be paid to the lessor by the lessee
at the beginning of each year as a minimum royalty payment. No additional
payments will be made until the extraction of materials exceed the $5,000.00
amount in royalty calculations based on materials weighed across certified
scales.
The Lessor retains the right to graze livestock, utilize pastures and existing
corrals within the property boundaries while not interfering with lessees active
operations. Lessee will not be liable for livestock under any circumstances.
TO HAVE AND TO HOLD unto said Lessee and to it's successors and assignees for a
term of 5(five) year with the option to renew for 5 (five) years.
And in consideration of such demise and of the considerations and royalty
hereinafter set forth and the covenants and agreements to be kept and performed,
it is hereby covenanted and agreed by the parties hereto, to wit:
1. That Lessee shall have and is hereby granted the sole right, license and
privilege to enter into and upon said property for the purpose of mining,
quarrying, crushing, blasting, processing, mixing aggregate and asphalt
cement in a hot plant, ready mix plant, and/or any other sand & gravel
plant, stockpiling and removing any other activities or processes
pertaining or incidental to these purposes for the period of 5 (five) years
with an option to renew for 5 (five) years.
1a. A mining plan will be established and agreed upon in writing before actual
mining commences. This does not include exploratory work necessary to
develop the plan. The plan shall be prepared to construction industry
standards including planned mining sequence, location of crushing and
processing plants, stockpiling areas and planned waste and stripping areas.
The mining plan may be changed at any time when agreed upon by both
parties.
2. That Lessee is given the right of selling said materials, at such price and
in such manner as Lessee shall deem best, and transporting or causing said
materials to be transported from said lands.
3. In consideration, lessee agrees to pay lessor $1.00, for sole right to the
said property for a period of 5 (five) years, with the option to renew for
another 5 (five) years.
4. That Lessee agrees, during continuance of this Lease, to indemnify and save
harmless the Lessor from each and every loss, cost, damage and expense
arising out of any accident or other occurrence causing injury or death of
persons or damage to property caused by the activities of Lessee on the
leased premises. Lessee agrees to provide, pay for and maintain public
liability insurance in amounts of not less than One Million and no/100
dollars ($1,000,000.00) with respect to such bodily injury or death, and
not less than Fifty Thousand and no/100 Dollars ($50,000.00) with respect
to damage to the property of others, for the protection of Lessor and
Lessee against any liabilities or obligations and heretofore set forth.
5. Lessor warrants a valid ownership on the aforesaid lands and rock materials
hereby leased.
6. Lessee covenants and agrees to pay to Lessor at his address royalty
payments on all rock or other material removed from the premises, said
royalties to be as follows;
Royalty payments on aggregates removed @ $0.55 first 100,000/tn, $0.60 next
200,000/tn, $0.65 next 300,000/tn, $0.70 next 400,000/tn, $0.75 thereafter.
Deductions will be made for admixtures, eg. oil, cement, etc. All materials
will be weighted across certified scales.
6a. In the event recycled materials are brought to the premises and/or
aggregates are utilized, these will be paid for at 25% of the royalty rate
at the time or removal or at a method agreed upon by both parties.
6b. Lessee shall be responsible for any and all permits, applicable gross
taxes, processing taxes, and severance taxes applicable to its operations.
6c. Imported construction wastes will be for recycling and not for permanent
storage. No hazardous wastes will be left on leased premises.
6d. Opportunities to utilize pit run, or processed materials by the immediate
family of lessor will be provided for in the form of a +/- 10% discount off
of retail prices established. This will be a single pass through with bid
jobs by lessee being excluded.
7. It is further understood that the cash royalties payable on materials
removed from the premises shall be due and payable within fifteen (15) days
after the end of the month for any and all materials used during the
previous month as paid for by the owner.
8. If Lessee shall fail, refuse, or neglect to carry out any of the terms or
provisions of this Lease and Agreement, and if the same be not corrected
within fifteen (15) days of mailing or written notice thereof, then Lessor
may terminate this Lease immediately and be entitled to the rights of
Lessor.
9. Lessee agrees to remove or properly dispose of all trash, unused items or
discarded materials and to return the property to Lessor in a neat and
clean condition. Any and all processed materials remaining on the premises
one year after the termination of this agreement shall become the exclusive
property of Lessor.
9a. Lessee shall provide an environmental assessment, archaeological
assessment, and a "quarry" reasonable reclamation plan for a quarry
operation. Efforts will be made to delineate and preserve historical
landmarks, e.g. corrals, buildings, foundations, wellsites, etc. Any change
to fences, corrals, water works or wellsites shall be repaired or subject
to compensation. Damage to underground wells from blasting will not be a
consideration unless negligence can be proven. In the event an
environmental, archaeological, zoning, or other unforseen restraint
prevents the site from being utilized as a quarry, the lease agreement
shall be considered null and void and both the lesee and lessor shall be
held harmless.
9b. Oversize boulders generated from blasting may be used to delineate
preservation areas or grouped together in a waste area.
9c. Lessee retains the right to remove produced materials for a period of one
year after the termination of the lease. Royalties must be paid on these
materials as they are removed.
10. The effective date of this agreement shall be , and the terms shall
start as of that date.
11. This Lease may not be sublet or assigned in whole or in part without the
written consent of the Lessor having been obtained.
12. Notices or other communications address to the Lessor shall be at HC6X Box
32, San Patricio, New Mexico 88348.
13. Notices or other communications addressed to the Lessee shall be at P.O.
Box 60726, Phoenix, AZ.85082.
14. Lessee would have no objections to any gas or oil exploration which would
not interfere with the lessee's operations of the quarry or the lessee's
business. Assayable minerals will be retained by the lessor.
IN WITNESS WHEREOF, of the parties hereto have executed this Lease and Agreement
this day of
LESSEE:
MEADOW VALLEY CONTRACTORS
By: /s/ Samuel J. Grasmick
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STATE OF Arizona )
)ss.
COUNTY OF Maricopa )
The foregoing instrument was acknowledge before me this 5 day of January
by: Samuel J. Grasmick.
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Notary Public /s/ Arminda Palacio
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My Commission expires: 6-17-2001
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IN WITNESS WHEREOF, of the parties hereto have executed this Lease Agreement
this day of
LESSOR:
KEN NOSKER
By: /s/ Ken Nosker
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STATE OF New Mexico )
)ss.
COUNTY OF Lincoln )
The foregoing instrument was acknowledged before me this 30 day of
December by Ken Nosker.
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Notary Public /s/ [SIGNATURE
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My commission expires 11-20-99
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