STATE OF ALABAMA )
) SAND AND GRAVEL LEASE
XXXXXX COUNTY )
This AGREEMENT is made and entered into on this 7-24-1996,
between XXXXXX LUMBER L.L.C. (hereinafter referred to as
"Xxxxxx") and XXXXXX SAND & GRAVEL CO., (hereinafter referred
to
as "Xxxxxx Sand")
WITNESSETH:
Xxxxxx, for and in consideration of the sum of Ten and 00/100
Dollars and other valuable consideration to Xxxxxx in hand paid
by Xxxxxx Sand, the receipt of which is hereby acknowledged, and
in further consideration of the payments to be made hereunder
and
the agreements hereinafter contained, Xxxxxx hereby leases,
grants 1 bargains, sells and conveys to Xxxxxx Sand all of the
sand and gravel, collectively referred to herein as "SAID
MATERIALS" in, on, upon and under the following described real
estate in Xxxxxx County, Alabama, to-wit:
All that parcel of land in the Northeast Corner of the Northeast
1/4 of the Northwest 1/4 of Section 11, Township 18, Range 17
containing approximately 20 acres.
This lease 15 for the term beginning 7/24/1996 and ending
7/24/2000 and upon the following conditions and terms:
1. Xxxxxx Sand has the right to enter upon said lands during
said period of time, to pass and xxxxxx over the same at will,
on
foot, by trucks, automobiles, machines and by draglines,
dredges,
or pipelines for the purpose of prospecting for said materials,
digging, mining, processing, storing, conveying, removing and
shipping the said materials from the said land.
2. Xxxxxx Sand shall have the right to use said land and the
water on and thereunder for prospecting, developing, working,
hauling, digging, washing, mining, processing, removing and
shipping the said materials or any of them; to construct and use
washing and processing facilities; to dispose of and place on
said land all water, mud, debris and residue resulting from the
washing process; and to construct, maintain and use such roads
as
may be necessary or convenient in connection with Xxxxxx Sand's
operations on said land; and
3. Xxxxxx Sand shall have the right to construct and maintain
on said land such roadways power lines, pipelines and equipment
and such buildings and structures as may be necessary or
convenient for use as offices, storage of supplies and for
housing machinery 3 equipment arid facilities used in the
operations carried on hereunder.
4. The parties shall mutually define and locate the tract upon
which said mining activities shall be conducted, which lies
within the above-described process. Xxxxxx Sand shall be
responsible for the maintenance of the right-of-way road for
ingress and egress.
5. In addition to the herein granted rights to mine sand and
gravel from the premises, Xxxxxx Sand shall have the right to
stockpile and process sand and gravel on these premises mined by
it on the lands of third parties.
6. Xxxxxx Sand shall begin mining operations as soon as
practical. At the end of said term, all of Xxxxxx Sand's rights
shall expire except as herein otherwise stated.
7. After Elmore Sand begins mining operations, Xxxxxx Sand
agrees to keep accurate records of all materials shipped from
said land, and Xxxxxx Sand shall pay Xxxxxx royalties at the
rate
of twenty cents ($.20) a ton for all sand, and twenty-five cents
($.25) a ton for all gravel mined on the premises which is
shipped from the premises and five cents ($.05) a ton for any
material mined elsewhere, which is processed and shipped from
the
premises. Xxxxxx Sand shall give monthly written accounting to
Xxxxxx for all materials shipped from said lands. These monthly
accounting payments are to be made to Xxxxxx on or before the
15th day of the following month. The process of accounting and
payment by the 15th of each and every month thereafter will
continue for the remainder of the lease term. Xxxxxx Sand shall
pay Xxxxxx Five hundred and No/l00 Dollars ($500.00) a month in
prepaid royalties for any months in which no materials are
shipped from the premises. These prepaid royalties shall cease
once the materials to be mined on the premises are exhausted.
All
prepaid royalties shall be credited on the sums due Xxxxxx from
Xxxxxx Sand for materials shipped from the premises.
8. Payment under this agreement shall be made to:
Xxxxxx Lumber L.L.C.
Xxx 000
Xxxxxxxx, Xx 00000
unless Xxxxxx shall notify Xxxxxx Sand in writing of the name
and
address of any other person or persons to whom remittance should
be made under this agreement.
10. If default be made in the payment of royalties resulting
from
the shipping of materials from said land, Xxxxxx shall give
Xxxxxx Sand written notice of such default and if such default
is
not remedied within ten (10) days from the receipt of such
notice
by Xxxxxx Sand, Xxxxxx shall have the right, at its option, to
terminate this agreement If default is made, I, Xxxxx Xxxxxx, do
contract, together with my heirs and assigns, to pay the amount
of the default to Xxxxxx, together with any necessary costs of
collection. Xxxxxx hereby represents and warrants to Xxxxxx Sand
that it owns the above described land in fee simple, it warrants
and agrees to defend the title to the same and agrees to
indemnify Xxxxxx Sand against any and all claims now existing or
which may be made as to the said minerals or any of them.
12. Xxxxxx Sand shall have the right at any time during the
term of this agreement and for two (2) years after the
expiration
or termination of said agreement to remove all of its properties
and facilities from the said land.
13. Xxxxxx Sand, in its mining operations, shall comply with
all existing laws and regulations, including those laws and
regulations governing reclamation of lands. Xxxxxx Sand's
reclamation obligation shall include its hereby-agreed
obligation
not to leave any stockpile sand and gravel on the premises. At
the termination of Xxxxxx Sand's mining activities or at the
expiration of the lease or extended term thereof, whichever
should first occur, Xxxxxx Sand shall thereupon reclaim said
land
in accordance with applicable laws and regulations governing the
reclamation of land Said reclamation shall be completed within
two (2) years after Xxxxxx Sand ceases its activities on said
land or within six (6) months after said lease expires,
whichever
shall first occur.
14. Any notice, which may be required or permitted under this
agreement, shall be sufficient if sent by mail postage prepaid,
to the parties at the following address:
Xxxxxx: Xxxxxx Lumber L.L.C.
XX Xxx 000 Xxxxxxxx, XX 00000
Xxxxxx Sand: Xxxxxx Sand & Gravel Co., Inc.
X.X. Xxx 000
Xxxxxx Xxxxxxx 00000
15. This agreement shall be binding upon the parties hereto,
their respective successors, assigns, heirs, executors, and
administrators.
IN WITNESS whereof, we, Xxxxxx Lumber L.L.C. and Xxxxxx Sand &
Gravel Co., Inc. have caused this instrument to be signed in
duplicate in its names and behalf on the date first herein above
written.
XXXXXX LUMBER L.L.C.
BY: " Xxxxx X. XxXxxx "
Xxxxx X. XxXxxx
A member of said Limited Liability
Company
XXXXXX SAND & GRAVEL CO., INC.
BY: "Xxxxx X. Xxxxxx"
Xxxxx X. Xxxxxx
Its President
STATE OF ALABAMA
XXXXXX COUNTY
I, Xxxxxx Xxxxxx a Notary Public in and for said State at large,
do hereby certify that XXXXX X. XXXXXX, whose name as a member
of
said limited liability company of Xxxxxx Lumber L.L.C., a
limited
liability company, is signed to the foregoing Sand and Gravel
lease, and who is known to me, acknowledged before me on this
day
that, being informed of the contents of the lease, he, as such
member and with full authority, executed the same voluntarily,
on
the day the sane bears date.
Given under my hand and seal this 24 day of July 1996.
"Xxxxxx Xxxxxx"
Notary Public
MY COMMISSION EXPIRES
JANUARY 03, 0000
XXXXX XX XXXXXXX
XXXXX XXXXXX
I, Xxxxxx Xxxxxx, a Notary Public in and for said State at large
do hereby certify that XXXXX X. XXXXXX, whose name as President
of XXXXXX SAND & GRAVEL CO INC., a corporation, is signed to the
foregoing Sand and Gravel Lease and who is known to me,
acknowledged before me on this day that being informed of the
contents of the lease, he, as such officer, and with full
authority, executed the same voluntarily, on the day the same
bears date.
Given under my hand and seal
this 24th day of July 1996.
" Xxxxxx Xxxxxx"
Notary Public
MY COMMISSION EXPIRES
JANUARY 03, 1999
----------------------------------------------------------------
STATE OF ALABAMA )
) SAND AND GRAVEL LEASE
XXXXXX COUNTY )
THIS AGREEMENT is made and entered into on this February 17,
1995, between XXXXX X. XXXXXX, XXXXXXX X. XXXXXX, XXXXXXXXX
XXXXXX, AND XXXXXXXX X. TILL (hereinafter referred to as
"Xxxxxx") and XXXXXX SAND & GRAVEL CO. INC. (hereinafter
referred
to as "Elmore Sand".
WITNESSETH:
Xxxxxx, for and in consideration of the sum of Ten and 00/100
Dollars and other valuable consideration to Xxxxxx in hand paid
by Xxxxxx Sand, the receipt of which is hereby acknowledged, and
in further consideration of the payments to be made hereunder
and
the agreements hereinafter contained, Xxxxxx hereby leases,
grants, bargains, sells and conveys to Xxxxxx Sand all of the
sand and gravel, collectively referred to herein as "SAID
MATERIALS" in, on, upon and under the following described real
estate in Xxxxxx County, Alabama, to-wit.
A parcel of land containing 26 acres, more or less, being in the
Northeast quarter of the Northwest quarter of Section 13,
Township 18 North, Range 17 East; then a parcel of land
containing 10 acres, more or less, being in the Southeast
quarter
of Southwest quarter of Southwest quarter of Section 12,
Township
18 North, Range 17 East: then a parcel of land containing 11
acres, more or less, being in the South half of the Southwest
quarter of Section 000 Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx.
This lease is for the term beginning February 20, 1995 and
ending
January 1, 1998 and upon the following conditions and terms:
1. Xxxxxx Sand has the right to enter upon said lands during
said period of time, to pass and xxxxxx over the same at will,
on
foot, by trucks, automobiles, machines and by draglines,
dredges,
or pipelines for the purpose of prospecting for said materials,
digging, mining, removing and shipping the said materials from
the said land
2. Xxxxxx Sand shall have the right to use said land and the
water on and thereunder for prospecting, developing, working,
hauling, digging, removing and shipping the said materials or
any
of them; and to construct, maintain and use such roads as may be
necessary or convenient in connection with Xxxxxx Sand's
operations on said land.
3. The Parties shall mutually define and locate the tract upon
which said mining activities shall be conducted, which lies
within the above described premises. Xxxxxx Sand shall be
responsible for the maintenance of the right-of-way road for
ingress and egress.
4. Xxxxxx Sand shall begin mining operations as soon as
practical. At the end of said term, all of Xxxxxx Sand's rights
shall expire except as herein otherwise stated.
5. After Elmore Sand begins mining operations, Xxxxxx Sand
agrees to keep accurate records of all materials shipped from
said land and Xxxxxx Sand shall pay Xxxxxx at the rate of twenty
cents ($.20) a ton for all sand and twenty-five cents ($.25) a
ton for all gravel mined on the premises and removed from the
premises. Xxxxxx Sand shall give written accounting to Xxxxxx
for all materials shipped from said lands and payment is to be
made to Xxxxxx on or before the 15th day of the following month,
accompanied by Xxxxxx Sand's written accounting along with
payment check. The process of accounting and payment by 15th of
each and every month thereafter will continue.
6. Payment under this agreement shall be made to:
Xxxxx X. Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
unless Xxxxxx shall notify Xxxxxx Sand in writing of the name
and
address of any other person or persons to whom remittance should
be made under this agreement.
7. If default be made in the payment of royalties resulting
from
the shipping of materials from said land, Xxxxxx shall give
Xxxxxx Sand written notice of such default and if such default
is
not remedied within ten (10) days from the receipt of such
notice
by Xxxxxx Sand, Xxxxxx shall have the right at his option to
terminate this agreement.
8. Xxxxxx hereby represents and warrants to Xxxxxx Sand that
they own the above described land in fee simple, and they
warrant
and agree to defend the title to the same and agree to indemnify
Xxxxxx Sand against any and all claims now existing or which may
be made as to the said minerals or any of them.
9. Xxxxxx Sand shall have the right at any time during the term
of this agreement and for six (6) months after the expiration or
termination of said to remove all of its properties and
facilities from the said land.
10. Xxxxxx Sand, in its mining operations, shall comply with
all
then existing laws and regulations, including those laws and
regulations governing reclamation of lands. At the termination
of Xxxxxx Sand's mining activities or at the expiration of the
lease or extended term thereof, whichever should first occur,
Xxxxxx Sand shall thereupon reclaim said land in accordance with
applicable laws and regulations governing the reclamation of
land. Said reclamation shall be completed within six (6) months
after said lease expires1 whichever shall first occur.
11. Any notice which may be required or permitted under this
agreement shall be sufficient if sent by mail postage prepaid,
to
the parties at the following address:
Xxxxxx: Xxxxx X. Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
Elmore Sand: Elmore Sand & Gravel Co., Inc.
P.0. Xxx 000
Xxxxxx, Xxxxxxx 00000
12. This agreement shall be binding upon the parties hereto,
their respective successors, assignees, heirs, executors, and
administrators.
IN WITNESS WHEREOF, we, Xxxxxxx X. Xxxxxx, Xxxxxxxxx Xxxxxx, and
Xxxxxxxx X. Till, by our Attorney-in-Fact, Xxxxx X. Xxxxxx, and
Xxxxx X. Xxxxxx, individually, and Xxxxxx Sand & Gravel Co.,
Inc.
have caused this instrument to be signed in duplicate in their
names and behalf on the date first herein above written.
By: "Xxxxx X. Xxxxxx"
Xxxxx X. Xxxxxx, As Attorney-in-Fact
for Xxxxxxx X. Xxxxxx, Xxxxxxxxx Xxxxxx, and Xxxxxxxx X. Till
XXXXXX SAND & GRAVEL CO., INC
BY: "Xxxxx X. Xxxxxx"
Its President
STATE OF ALABAMA
XXXXXX COUNTY
I, Xxxxx X. Xxxxxx, a Notary Public in and for said State at
Large do hereby certify that XXXXX X. XXXXXX, AS
ATTORNEY-IN-FACT
FOR XXXXXXX X. XXXXXX, XXXXXXXXX XXXXXX, AND XXXXXXXX X. TILL,
whose name is signed to the foregoing Sand and Gravel Lease, and
who is known to me, acknowledged before me on this day that,
being informed of the contents of the lease, he, in his capacity
as Attorney-in-Fact, executed the same voluntarily, on the day
the same bears date.
Given under my hand and seal this February 28, 1995.
"Xxxxxx Xxxxxx"
Xxxxxx Xxxxxx Notary Public
MY COMMISSION EXPIRES ON JANUARY 03, 0000
XXXXX XX XXXXXXX
XXXXXX XXXXXX
I, Xxxxx X. Xxxxxx, a Notary Public in and for said State at
-large, do here by certify that XXXXX X. XXXXXX, INDIVIDUALLY,
whose name is signed to the forgoing Sand and Gravel Lease, and
who is known to me, acknowledged before me on this day that,
being informed of the contents of the lease, he executed the
same voluntarily, on the day the same bears date.
Given under my hand and seal this February 28, 1995.
"Xxxxxx Xxxxxx"
Xxxxxx Xxxxxx Notary Public
MY COMMISSION EXPIRES
JANUARY 03, 1999
STATE OF ALABAMA
MACON COUNTY
I, Wm. X. Xxxxxxx. Jr., a Notary Public in and for said State at
large, do hereby certify that XXXXX X. XXXXXX, whose name as
President of XXXXXX SAND & GRAVEL CO., INC., a corporation, is
signed to the foregoing Sand and Gravel Lease, and who is known
to me, acknowledged before me on this day that, being informed
of
the contents of the lease, he as such officer, and with full
authority, executed the same voluntarily, on the day the same
bears date.
Given under my hand and seal this February 17, 1995.
"Wm. Xxxxxxx"
Wm. Xxxxxxx Notary Public
----------------------------------------------------------------
STATE OF ALABAMA
XXXXXX COUNTY
SAND & GRAVEL CONTRACT
THIS CONTRACT is made and entered into on this the 15th day of
September, 1995, by and between XXXXXXX X. XXXXXX, XXXX XXXXX
XXXXXX, XXXXX X. XXXXXX and XXXXXXX X. XXXXXXX (hereinafter
called "Xxxxxx") and XXXXXX SAND & GRAVEL CO., INC., a
corporation, (hereinafter called "ELMORE). WITNESSETH
Xxxxxx, for and in consideration of the sum of $10.00 cash and
other good and valuable consideration in band paid by Xxxxxx to
Xxxxxx, the receipt of which is hereby acknowledged and in
further consideration of the payments to be made hereunder and
the agreements hereinafter contained and set forth. does here-by
give and grant unto Xxxxxx, subject to the other terms and
provisions of this Contract, the exclusive right and license to
mine and remove all. of the sand and gravel, (hereinafter called
the materials) located in, on, upon, and under the following
described lands located in Xxxxxx County, Alabama, to-wit:
All that portion of the Xxxxxx property located west of Alabama
Highway Number 143 In section 34, Township 19 North, Range 17
East, as shown in the diagram attached as Exhibit "A", said land
being situated in Xxxxxx County, Alabama, and being here after
called "the lands". PROVIDED HOWEVER, Elmore shall leave a 250
foot setback along. the northern side of the property and 150
foot setback along the western side o~ the previously subdivided
property known as the 'Xxxxxx or Xxxxxxxx Plat". No mining,
stocking or other activities permitted under this Contract shall
he carried on the setback areas.
1. This Contract shall commence on September 1, 1995 and shall
terminate on August 31, 2000. PROVIDED HOWEVER, this Contract
shall also terminate once the materials are exhausted.
2. Xxxxxx has the right to: (1) enter upon the lands to pass
and
xxxxxx over the same at Will, on foot, by trucks, automobile,
machines, and by draglines, dredges, or pipelines for the
purpose
of prospecting for and mining the materials; (2) dig, mine,
process, store, convey, remove, and ship the materials from the
land: (3) use the land, and the waters located thereon and
thereunder for prospecting, developing, working, hauling,
digging
washing, mining, processing, removing and shipping the
materials;
(4) construct and use washing and processing facilities on the
land; (5) dispose of and place on the land all water, mud,
debris, and residue resulting from the washing process; (6)
construct, maintain and use such roads as may be necessary or
convenient in connect on with Xxxxxx'x operations on the land;
(7) construct and maintain on the land such roadways, power
lines, pipelines, and equipment, and such buildings and
structures as may be necessary or convenient for use as offices,
storage of supplies, and for housing machinery, equipment, and
facilities used in the operations carried on hereunder; and (8)
stockpile and process sand and gravel on the lands which is has
mined on the lands of third parties.
3. The parties shall mutually define and locate the area of the
lands upon which mining activities shall be conducted. If Xxxxxx
elects to erect a structure on the land, or erect a road or
other
improvements on the land, the parties shall mutually agree upon
the site for the same. Xxxxxx shall at all times be responsible
for the maintenance of any and all right-of-way roads and other
improvements made to or on the lands by Elmore.
4. Xxxxxx shall begin mining operations as soon as practical.
However, Xxxxxx shall give Xxxxxx ninety (90) days notice prior
to the commencement of mining activities so that Xxxxxx may cut
and remove timber from the property to be Mined
5. Xxxxxx agrees to keep accurate records of all materials
shipped from the land and accurate records of all materials
mined
elsewhere, but subsequently placed on the lands and thereafter
shipped from the lands. Xxxxxx shall have the right to inspect
these records at all reasonable times Xxxxxx shall pay a royalty
for materials shipped from the lands as follows: (a) "Twenty
cents ($.20) a ton for sand, (b) twenty-five cents ($.25) for
all gravel. Xxxxxx shall pay Xxxxxx a royalty for materials
mined elsewhere, but subsequently placed on the lands and
thereafter shipped from the lands at the rate of five cents
($.05) a ton. Xxxxxx shall give Xxxxxx a monthly written
accounting with respect to all materials shipped or materials
mined elsewhere, but subsequently placed on the lands and
thereafter shipped from the lands. The monthly accounting, and
payments due hereunder are to be and delivered to Xxxxxx on or
before the 15th day of the following month. The process of
accounting and payment by 15th of each and every month
thereafter
will continue for the remainder of the term of this Contract.
Once mining operations commence on the lands Xxxxxx shall pay
Xxxxxx $500.00 a month as an advance or pre-paid royalty for any
month in which no materials are shipped from the lands. The
prepaid royalty shall cease once the materials to be mined on
the
lands are exhausted, it, being agreed that at such time this
Contract and all rights of Xxxxxx hereunder shall cease and
terminate. All prepaid or advance royalties shall be credited
to
the sums due Xxxxxx from Xxxxxx for materials thereafter shipped
from the lands. All payments due Xxxxxx under this Contract
shall
be made to:
Xxx. Xxxxx X. Xxxxxx
Number 0 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
unless Xxxxxx shall notify Elmore in writing of the name
and address of any other person or persons to whom remittance
should be made under this Contract.
6. Xxxxxx shall pay all severance taxes or any other taxes
incidental to the mining operation which may be due or payable
because of such operation and shall also pay all ad valorem
taxes
on any machinery or chattels placed on the property by Xxxxxx.
Xxxxxx shall pay all ad valorem taxes assessed against the real
property by the state, the county, and any school district
during
the existence of this Contract
7. It is anticipated that Xxxxxx will place two house trailers
on the lands. Xxxxxx shall pay Xxxxxx $50.00 a month for each
trailer as long as a trailer remains on the lands. It is
agreed,
however, that Xxxxxx shall be responsible for the conduct of all
persons using the house trailers.
8. If default be made in the payments due under this Contract
Xxxxxx shall give Xxxxxx written notice of such default and it
such default is not remedied within ten (10) days from the
receipt of such notice by Xxxxxx, Xxxxxx shall have the right to
terminate this Contract.
9. Xxxxxx hereby represents and warrants to Xxxxxx that Xxxxxx
owns the land in fee simple, and warrants and agrees to defend
the title to the same and to indemnify Xxxxxx against any and
all
claims now existing or which may be made as to the materials.
10. Any and all improvements, additions, and repairs to or on
the
lands shall be made at the sole cost of Xxxxxx. All such
improvements, additions, arid repairs of whatever kind and
nature
which are not removed from the lands by Xxxxxx shall revert to,
and become the property of Xxxxxx. PROVIDED, HOWEVER, Xxxxxx
shall have the right at any time during the term of this
Contract, and for 60 days after the expiration or termination of
this Contract, to remove all of its properties and facilities
from the said land.
11. Xxxxxx shall comply with all existing laws and regulations,
including, without limitation, all laws, rules, and regulations
governing reclamation of the lands. Xxxxxx'x reclamation
obligations shall include, but shall not be limited to its
hereby
agreed obligation not to leave any stockpile of sand or gravel
on
the lands, nor any piles of mud, debris, or residue resulting
from the washing process permitted hereunder. At the
termination
of Xxxxxx'x mining activities, or at the expiration or
termination of this Contract, whichever event shall first occur,
Xxxxxx shall reclaim the land in accordance with applicable laws
and regulations governing the reclamation of land. Said
reclamation shall be completed within one (1) year after Xxxxxx
ceases its activities on said land or within six (6) Months
after
this Contract expires or is terminated, whichever event shall
first occur.
12. Xxxxxx shall observe and comply with all rules regulations
laws, and ordinances now in effect, or which may be enacted
during the term of this Contract or any county, state,
municipal,
or federal authorities having jurisdiction over the lands, or
the
subject matter of this Contract, and Xxxxxx agrees to indemnify
and fully relieve Xxxxxx from any compliance therewith or
liability for violation thereof.
13. Xxxxxx shall indemnify Xxxxxx and save Xxxxxx free and
harmless from and against all mechanics' liens and notices
thereof relating to the property on account of any labor
performed or of materials furnished at the request of Xxxxxx, or
for or on behalf of Xxxxxx during the term thereof. Should any
lien or notice be filed, Xxxxxx shall promptly discharge the same
14. Xxxxxx hereby covenants and agrees to indemnify Xxxxxx and
save and hold Xxxxxx free and harmless from and against any and
all Suits, actions, causes of action, claims, and demands
whatsoever made or asserted against Xxxxxx by any party for
injuries to or the death of any person, or damage to or loss of
property alleged or claimed to have been caused by, or to have
arisen out of or in connection with, or to be incidental to the
use or occupation of the property by Xxxxxx, except for injury,
death damage, or loss caused by the negligence of Xxxxxx.
Xxxxxx
further covenants and agrees to pay, liquidate (discharge, and
satisfy any and all judgments, awards, and expenses which may be
rendered against or incurred by Xxxxxx on account of injuries to
or the death of any person o~ on account of loss or damage to
any
property whatsoever, alleged or claimed to have been caused by
or
to have arisen out of or in connection with 9r to be incidental
to the use of occupation of the property by Xxxxxx, including,
but not limited to, all costs of suit, reasonable attorneys'
fees, and reasonable expenses in connection therewith.
15. Xxxxxx, at its sole cost, provide Xxxxxx insurance under a
policy of insurance insuring Xxxxxx against loss or damage as a
result of Xxxxxx'x use and occupancy of the property. The
insurance policy shall be with a company acceptable to Xxxxxx
and
shall name Xxxxxx as a named insured and provide Xxxxxx
insurance
coverage in the amount of $1,000,000.00 per occurrence.
Evidence of the required insurance policy shall be deposited
with
Xxxxxx during the term of this Contract and it is expressly
agreed that Xxxxxx shall maintain the insurance policy during
the
entire term of this Contract. If the insurance policy shall
lapse
or be canceled this Contract shall be and become null and void
and all rights and benefits granted Xxxxxx hereunder shall
terminate without notice to Xxxxxx.
16. Any notice which may be required or permitted 'under this
Contract shall be sufficient if sent by mail postage prepaid, ~c
the parties at the following address
IF TO XXXXXX:
Xxx. Xxxxx X. Xxxxxx Number 0 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
17. Xxxxxx and Xxxxxx' agents and employees may, at any time.
And
from time to time, enter on and upon the lands and inspect the
land
18. Xxxxxx shall have no right to sublease, assign pledge,
mortgage, convey, or otherwise transfer or encumber this
Contract, or any of its rights hereunder. If Xxxxxx breaches
this covenant this Contract shall be void and all rights of
Xxxxxx hereunder shall cease and terminate without further
notice
to Elmore.
19. If Xxxxxx breaches any one or more of the conditions or
covenants of this Contract, Xxxxxx, at Xxxxxx option, may
terminate this Contract and declare the same null and void as to
the remaining term thereof
20. This Contract is made and is accepted in the State of
Alabama
and shall be governed and construed under and in accordance with
the laws of the State of Alabama.
21. This Contract sets forth all of the promises, agreements,
conditions, covenants, and understandings between Xxxxxx and
Elmore. Relative to the subject matter of this Contract and the
party agree that there are no other promises agreements,
conditions, covenants, or understandings either oral or written,
between them other than those set forth in this Contract. The
parties further agree that the terms of this Contract may not be
altered or amended except by an instrument in writing executed
by
all of the parties hereto.
22. The provisions of the Contract shall insure to the benefit
of, and shall be fully binding upon all of the parties hereto,
and their respective successors, assigns, and legal
representatives
23. It is agreed that time is and shall be of the essence of
this
Contract. However, the failure of Xxxxxx to insist, in one or
more instances, upon the strict performance by Xxxxxx of any of
the provisions of this Contract shall not be construed as a
waiver of any future breach of such provisions.
IN WITNESS WHEREOF, the parties have executed this instrument on
the date first herein above written.
"Xxxxxxx X. Xxxxxx"
Xxxxxxx X. Xxxxxx
"Xxxxx X. Xxxxxx"
Xxxxx X. Xxxxxx
"Xxxx Xxxxx Xxxxxx"
Xxxx Xxxxx Xxxxxx
"Xxxxxxx X. Xxxxxxx"
Xxxxxxx X. Xxxxxxx
XXXXXX SAND & GRAVEL CO. INC
BY: ITS PRESIDENT
STATE OF ALABAMA
COUNTY OF DALLAS
I, the undersigned authority, a Notary Public in and for the
State of Alabama at Large, do hereby certify that Xxxxxxx X.
Xxxxxx, whose name is signed to the foregoing instrument, and
who
is known to me, acknowledged before me on this day that, being
informed of the contents of said instrument, he executed the
same
voluntarily on the day the same bears date
Given under my hand and seal this 15th day of September, 1995
(Signed)
NOTARY PUBLIC STATE OF ALABAMA AT LARGE
OF ALABAMA AT LARGE
STATE OF ALABAMA
COUNTY OF Jefferson
I, the undersigned authority, a Notary Public in and for said
county, in said State, do hereby certify that Xxxx Xxxxx Xxxxxx,
whose name is signed to the foregoing instrument, and who is
known to me, acknowledged before me on this day that, being
informed of the contents of said instrument, she executed the
same voluntarily on the day the same bears date
Given under my hand and seal this 26th day of September 1995.
(SIGNED)
NOTARY PUBLIC
My Commission Expires June 15, 1999
STATE OF ALABAMA
COUNTY OF _______
I, the undersigned authority, a Notary Public in and for county,
in said State, do hereby certify that Xxxxx X. Xxxxxx whose
name
is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day that, being informed of the
contents of said instrument she executed the same voluntarily on
the day the same bears date.
Given under my hand and seal this 29 day of September 1995.
(Signed)
NOTARY PUBLIC
My Commission Expires April 23, 1996
STATE OF ALABAMA
COUNTY OF Jefferson
I, the undersigned authority, a Notary Public in and for county,
in said State, do hereby certify that Xxxxxxx X. Xxxxxxx whose
name is signed to the foregoing instrument, and who is known to
me, acknowledged before me on this day that, being informed of
the contents of said instrument she executed the same
voluntarily on the day the same bears date.
Given under my hand and seal this 26 day of September 1995.
(Signed)
NOTARY PUBLIC
My Commission Expires June 15, 1999
---------------------------------------------------------------
STATE OF ALABAMA )
XXXXXX COUNTY ) SAND AND GRAVEL LEASE
This agreement is made and entered into on this day November 4,
1997 between XXXX X. XXXXXXX (hereinafter referred to as
"Xxxxxxx" and ELMORE SAND AND GRAVEL, INC. (hereinafter referred
to as "Elmore S&G).
WITNESSETH:
Xxxxxxx, for and in consideration of the sum of Twenty Five
Thousand and 00/100 Dollars (25,000.00), which shall apply as a
down payment on future royalties, and other valuable
consideration to Xxxxxxx in hand paid by Elmore S&G, the receipt
of which is hereby acknowledged, and in further consideration of
the mining royalty payments to be made hereunder and the
agreements hereinafter contained, Xxxxxxx hereby leases, grants,
bargains, sells and conveys to Elmore S&G all of the sand and
gravel, collectively referred to herein as "SAID MATERIALS" in,
on, upon and under the following described Xxxxxxx owned real
estate in Xxxxxx County Alabama, to-wit:
The Southwest Quarter of the Xxxxxxxxx Xxxxxxx xx Xxxxxxx 00,
Xxxxxxxx 00X, Xxxxx 17E1 Parcel 09, Xxxxxx County Alabama,
totaling approximately 415 acres,
ALSO the Xxxxxxxxx Xxxxxxx xx Xxxxxxx 0, Xxxxxxxx 00X, Xxxxx
17E,
Parcel
02, Xxxxxx County, Alabama, totaling approximately 164 acres,
more or less as
shown by Survey made by Xxxxxxx X. Xxxxxxxxx, Xx., Xxxxxxxxxx
Xxxx Xxxxxxxx
Xx. 0000, dated March 8, 1995.
LESS the five (~) plats situated in Parcel 02 above sold by
Xxxxxxx since the above recording to relatives and/or others
totaling approximately 45 acres; the description attached hereto.
This property is the same property as that conveyed by Warranty
Deed to X.X. Xxxxxxx by X.X. Xxxx and wife, Xxxxx Xxxx recorded
on November 25, 1942, in the office of the Judge of Probate of
Xxxxxx County, Alabama, in Deed Record R-56, Page 261.
This property is the same property as that conveyed by Warranty
Deed to X.X. Xxxxxxx by J.J. Strength, a widower, recorded on
November 10, 1960, in the office of the Judge of Probate of
Xxxxxx County, Alabama, in Deed Record R-135, Page 493.
This lease is for the term ending 10 years after the signing of
this agreement, or 11/4/97 and upon the following conditions and
terms: with the option extend 5 additional years.
1. Elmore S&G has the right to enter upon said lands during
said
period of time, to pass and xxxxxx over the same at will, on
foot, by trucks, automobiles, machines and by draglines,
dredges,
conveyors, screens or pipelines for the purpose of prospecting
for said materials, digging, mining, removing and shipping the
said materials from the said land.
2. Elmore S&G shall have the right to use said land and water
on
and thereunder for prospecting, developing, working, hauling,
digging, removing and, shipping the said materials 9r any of
them: and to construct, maintain and use such roads as may be
necessary or convenient in connection with Elmore S&G's
operation
of said land.
3. At this point, Elmore S&G shall not be required to make any
special efforts to keep the airborne road dust created from its
truck travel to a minimum during working hours. If dust control
becomes requested by Xxxxxxx in the future, such as watering the
road to keep the dirt damp during dry weather conditions, Elmore
S&G may be entitled to a reduction in the royalty rate to offset
the additional operational costs.
4. The Parties shall mutually define and locate the tract
upon
which said mining activities shall be conducted, which lies
within the above described premises. Elmore S&G shall be
responsible for the maintenance of the right of-way road for
ingress and egress.
5. Elmore S&G shall begin mining operations as soon as
practical. At the end of said term, all of Elmore S&G1s rights
shall expire as herein other wise stated.
After Elmore S&G begins mining operations, Xxxxxx S&G agrees to
keep accurate records of all materials shipped from said land,
and Elmore S&G shall pay Xxxxxxx royalties at the rate of 50
cents per ton for all materials sized 1/2u and over only, and
mined on the premises and removed from the premises. Elmore S&G
shall give written accounting to Xxxxxxx for all materials
shipped from said lands and payment is to be made to Xxxxxxx on
or before the 1 5th day of the following month, accompanied by
Elmore S&G's written accounting along with payment check. The
process of accounting and payment by the 15th of each and every
month thereafter will continue.
7. Payment under this agreement shall be made to:
Xxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Unless Xxxxxxx shall notify Xxxxxx S&G in writing of the name
and
address of any other person or persons to whom remittance should
be made under this agreement.
8. If default be made in the payment of royalties resulting
from
the shipping of materials from said land. Xxxxxxx shall give
Elmore S&G written notice of such default and if such default is
not remedied within ten (10) days from the receipt of such
notice
by Elmore S&G, Xxxxxxx shall have the right, at his option, to
terminate this agreement.
9. Xxxxxxx hereby represents and warrants to Elmore S&G that he
owns the above described land in fee simple, that the same is
not
his homestead, and he warrants and agrees to defend the title to
the same and agrees to indemnify Elmore S&G against any and all
claims now existing or which may be made as to the said minerals
or any of them.
10. Xxxxxxx hereby agrees that he will not, nor will he allow
any other person, persons, companies nor business access to the
site for any purpose, such as mining, well drilling, utilities
or
roads construction, or any other business or recreation without
the written permission of Elmore S&G.
11. Xxxxxxx shall retain the right to authorize access to the
site for hunting purposes and all permission to xxxx on said
property shall be given by Xxxxxxx. Xxxxxxx may elect a proxy to
act on his behalf in his absence and shall notify Elmore S&G of
said election. Xxxxxxx agrees not to allow hunting to any person
during Elmore S&G's working hours, whether regular, overtime,
weekend or holidays.
12. Elmore S&G shall have the right at any time during the term
of this agreement and for six (6) months after the expiration,
termination or default of same to remove all of its properties
and facilities from the said land.
13. Elmore S&G, in its mining operation, shall comply with all
the existing laws and regulations, including those laws and
regulations governing the reclamation of lands. At the
termination of Elmore S&G's mining activities or at the
expiration of the lease or extended term thereof, whichever
should first occur, Elmore S&G shall thereupon reclaim said land
in accordance with applicable laws and regulations governing the
reclamation of land. Said reclamation shall be completed within
six (6) months after said lease expires, whichever shall first
occur.
14. Any notice which may be required or permitted under this
agreement shall be sufficient if sent by mail, postage prepaid,
to the parties at the following address:
Lessor: Xxxx X. Xxxxxxx (000) 000-0000
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Lessee: Xxxxxx Sand & Gravel, Inc. (000) 000-0000
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
15. This agreement shall be binding upon the parties hereto,
their respective successors, assigns, heirs, executors, and
administrators.
IN WITNESS WHEREOF, both Xxxxxxx and Elmore S&G have caused this
instrument to be signed in duplicate in their names and behalf
on
the date first herein written.
"Xxxx X. Xxxxxxx" (L.S.)
Xxxx X. Xxxxxxx
XXXXXX SAND & GRAVEL INC.
By: (Signed) Xxxxx X. Xxxxxx (L.S.)
Its President
State of Alabama )
Xxxxxx County )
I, Xxxxxx X. Xxxxxx, a Notary Public in and for said State at
Large, do hereby certify that Xxxx X. Xxxxxxx, whose name is
foregoing Sand and Gravel Lease, and who is known to me.
acknowledged before me on this day that, being informed of the
contents of executed the same voluntarily, on the day the same
bears date:
Given under my hand and seal this November 4, 1997
"Xxxxxx Xxxxxx"
Notary Public
I, Xxxxxx X. Xxxxxx, a Notary Public in and for said State at
Large, do hereby certify that Xxxxx X. Xxxxxx, whose name as
President of Elmore Sand and gravel, Inc. a corporation, is
signed to the forgoing sand and Gravel Lease, and who is known
to
me, acknowledged before me on this day that, being informed of
the contents of executed the same voluntarily, on the day the
same bears date:
Given under my hand and seal this November 4, 1997
"Xxxxxx Xxxxxx"
Notary Public
STATE OF ALABAMA
XXXXXX COUNTY
-----------------------------------------------------------------
-------------------------------------------------
EXCLUSIVE SAND AND GRAVEL LEASE
THIS LEASE AGREEMENT made this 25th day of November, 1995 by and
between the State of Alabama, Department of Corrections,
hereinafter referred to as "LESSOR" and Xxxxx X. Xxxxxxx,
hereinafter referred to as "LESSOR" or their successors,
WITNESSETH AS FOLLOWS:
LESSOR does hereby lease to LESSEE under the terms and
conditions
set out herein below, the exclusive right to mine, extract, dig,
excavate, remove and take away all merchantable and marketable
sand and gravel from the following described property, together
with the right to remove any and all top soil or over burden
above said sand and gravel, said property being located in
Xxxxxx
County, Alabama, to-wit:
TRACT I
LEGAL DESCRIPTION - XXXXXXXX LAKE AREA - XXXXXX COUNTY, ALABAMA:
Begin at the Southeast xxxxxx xx Xxxxxxx 0. X00X, X00X, Xxxxxx
Xxxxxx, Xxxxxxx; thence approximately N 45' w, 7467 feet more or
less to the Northwest corner of said Section 3;
thence continue approximately N 45o W, 3734 feet more or less to
the center of Xxxxxxx 00, X00X, Xx0X;
thence North along the center of Section 33, 2640 feet more or
less to the Southeast corner of the SW1/4 of Section 28;
thence West along the South line of Section 28, 1320 feet more
or
less to the Southwest corner of the SE1/4 of the SW1/4 of
Section
28;
thence North along said quarter section line, 1320 feet more or
less to the Northwest corner of the SE 1/4 of the SW1/4 of
said Section 28,
thence Easterly 3960 feet more or less to the South right-of-way
line of the L & N Railroad;
thence Southeasterly along said South right-of-way to the East
line of said Section 26;
thence South along said East section line, l320 feet more or
less
to the Northwest corner of Section 34;
thence East along the North line of said Section 34, 1320 feet
more or less to the Northeast corner of the NW1/4 of the NW 1/4
of said Section 34;
thence South along said quarter section line, 2640 feet more or
less to the Southeast corner of the SW1/4 of the NW1/4 of
Section
34,
thence East along the East-West half section line, l320 feet
more
or less to the center of Section 34;
thence approximately S 45o E. 3734 feet more or less to the
Southeast corner of said Section 34;
thence East along the North line of Section 2, T19N, R18E,
1000
feet more or less to the South right-of-way line of the L & N
Railroad
thence Southeasterly along said railroad right-of-way to the
South line of said Section 2;
thence West along the South line of Section 2 to the Xxxxxxxxx
xxxxxx xx Xxxxxxx 0, XX0X, X00X, the point of beginning.
Said described property lying in Sections 2 and 3, Tl8N, R17E,
and in Sections 28, 33 and 34, Tl9N, Rl7E, Xxxxxx
County,
Alabama, and containing 1314 acres more or less.
Situated within this described parcel of real property is the
Alabama Department of Corrections' Swine Production Unit and it
is specifically understood and agreed to by LESSOR and LESSEE
that LESSEE will not excavate, nor mine, nor place equipment
within 300 feet of the outside perimeter of the said unit, and
that this area which the said unit occupies and 300 feet in all
directions is excluded and excepted from this lease.
Situated within this described parcel of real property is the
Xxxxxx Firearms Firing range and it is specifically understood
and agreed to by LESSOR and LESSEE that LESSEE will not
excavate,
nor mine; nor place equipment within 150 feet of the Outside
perimeter of the said Range and that this area which the said
Range occupies and 150 feet in all directions is excluded and
excepted from this lease.
COVENANT OF TITLE
LESSOR covenants that it has a good right end title to the lands
and property leased, and the full right to lease the same and
that the LESSEE shall have quiet and peaceable possession
of
the same during the continuance of this lease.
DEFINITION OF SAND AND GRAVEL
It is agreed between the parties hereto that the words sand and
gravel as used herein shall and do include all sand, clay,
gravel
and rock, and each of them or any and all kinds or combinations
thereof whether for construction, industrial, chemical,
agricultural or any other use, located on the above-described
lands.
ADDITIONAL MINERALS
If any minerals other than sand and gravel, as herein defined,
shall be found on the leased premises during the term hereof,
the
same shall remain the property of the LESSOR, except that LESSEE
shall have the first right and option to mine or excavate said
minerals under such terms and conditions as may be agreed upon
by
the parties.
TERMS AND CONSIDERATION
This lease shall be for a term of TWENTY (20) YEARS from the
date
hereof. A royalty of $0.20 per ton by weight, for all sand and
$0.25 per ton for all gravel, will be paid to the LESSOR by the
20th day of the month following shipment. A tabulation of the
proceeding month's shipments will be made from xxxx tickets
issued to each separate carrier leaving the property. Official
railroad scale weights will be used to verify shipments made by
rail.
The LESSOR shall grant the LESSEE three (3) additional options
of
five (5) years each. The royalty to be paid by LESSEE to LESSOR
shall be renegotiated by the parties each time the LESSEE
chooses
to exercise its additional options and set out in writing as an
addendum to this Lease Agreement.
Production will begin within Eight (8) months of the date of
this
contract. A minimum royalty payment of $l,500.00 per month will
begin during the NINTH month whether or not the production and
sale of material has begun. Any and all payments of this nature
will be considered as prepaid royalty which will be credited
against future shipments, and such payments will be payable for
the life of this lease and any extensions thereof whether
production ever begins or stops at any time.
The LESSEE shall have the right to stockpile or store such
material on the property covered by the lease at no cost other
than the royalty paid as stated above. LESSEE shall have SIX
(6)
MONTHS to sell and remove such stockpiled material after the
expiration of the lease; or any renewal or cancellation thereof.
In the event any stockpiled material remains on the premises
beyond this SIX (6) MONTHS period, the LESSEE, at its option
shall pay to LESSOR a reasonable rent which shall he
negotiated by the parties or shall donate the stockpiled
materials to the LESSOR.
RECORDS
The LESSEE agrees to keep accurate and accountable records
showing the quantity of sand and gravel removed from the
premises
under the terms hereof which said records shall be open and
available for the inspection of and audit by LESSOR, or its duly
authorized representative, at reasonable intervals during the
business hours of LESSEE, for the purpose of determining the
quantity of such sand and gravel removed from the premises.
ROADWAYS
As part of the rights of ingress and egress granted hereunder,
and to carry on his operation hereunder, LESSEE shall have the
rights to make use of all roadways presently existing on the
promises, or on adjoining lands of LESSOR as aforesaid, and
shall
further have the right to build and maintain any new roadways
(vehicular or rail) as may be necessary for the production,
access to or removal of material from the premises, and in the
construction of such roadways LESSEE may use such materials as
may be necessary for such construction mined or obtained from
the premises free of charge and without royalty payment thereon.
BUILDING AND MACHINERY
LESSEE shall have the right to construct or erect any and all
buildings and/or plants on the leased premises as may be
reasonably necessary or useful for the mining, storing,
production, processing and removal of the sand and gravel
acquired hereunder. LESSEE shall have the further right to
place
on the premises such machinery and equipment as may be
reasonably
necessary or useful to his operations. LESSEE shall have the
right to remove said buildings, plants or equipment and
machinery
from the premises at any time during the term hereof at his
discretion.
CONTROL AND CONTAINMENT OF FLOWING WATER
The level of water in Xxxxxxxx Lake will be controlled by then
order to maintain a constant flow of water In Mortar Creek below
the dam. It is anticipated that low levels will be maintained
during the time when rainfall and rising creek levels may be
anticipated. The general manager for the LESSEE at the mining
site will be the only person authorized to direct a change in
levels of the lake and prison authorities will be notified of
anticipated changes with as much advance notice as possible. An
adequate water flow will be maintained in Mortar Creek below the
dam to provide sample water for the prison irrigation system.
LESSEE agrees to conduct its operations at all times in such a
manner as to not interfere with the prison system irrigation
system. In the event LESSEE causes LESSOR to be unable to
irrigate its crops. LESSOR shall notify LESSEE in writing of
same and LESSEE shall have three (3) days to cure said breach of
this Agreement. If the situation is not cured within three
(3)
days, LESSEE shall pay to LESSOR a penalty of $500.00 per day
for each day after the expiration of the three (3) day period
that LESSOR is unable to irrigate its crops. LESSEE shall not
be
liable if LESSORS inability to irrigate its crops is the result
of natural causes (such as lack of flowing water in Mortar
Creek).
The LESSOR will inform the LESSEE of a safe distance from the
bottom of the darn from which the LESSEE may mine without the
danger of "blowout" condition. The determination of the
distance
will be based on hydraulic engineering studies that define the
seepage network below the dam.
WATER RIGHTS
LESSEE shall have the right to enter upon and into any water
surface located on the premises, such as lakes, ponds, streams,
creeks or rivers, and erect or cause to be erected or placed
thereon any dredge, boat, barge., pump or other necessary
equipment for the mining or removal of any sand and
gravel
covered by such water surface.
LESSEE shall have the right to use all water sources located on
the leased premises and to drill water xxxxx thereon for use in
the conduct of his operations. As to any well dug by LESSEE
upon
termination hereof, LESSEE shall leave on the premises such well
and well casing therein for the use of LESSOR, but LESSEE may
remove any and all pumps, motors or other well equipment.
LAND USE
LESSEE shall have the right to clear such trees, brush and
undergrowth from such portions of the premises as may be
reasonably necessary to explore for materials, locate pits,
quarries and other removal areas and to locate stockpile and
equipment areas and plants. LESSOR shall have the right to sell
and/or remove all merchantable timber from the leased premises
within a reasonable time, not to exceed SIX (6) MONTHS from the
date hereof, so long as such timber removal is done as
expeditiously as possible and does not unreasonably interfere
with LESSEE'S operations hereunder.
LESSEE agrees to conform to and observe all orders and
regulations lawfully issued and enforced by state and federal
authorities with regard to the pollution of live streams and
rivers on the premises or adjoining lands and with regard to the
reclamation of the lands heretofore described.
INSPECTION OF PREMISES
LESSOR, its agent and authorized representatives, shall have the
right of entering upon and inspecting the operations of LESSEE
on
the premises at any reasonable time during normal business
hours.
REMOVAL OF IMPROVEMENTS AND EQUIPMENTS
Upon the termination of or surrender of this Lease, LESSEE shall
have the right to remove from the premises any and all
equipment,
machinery, tools, materials and supplies or other property of
the
LESSEE, including buildings and plants, within a reasonable and
economically feasible period of time. Any such property totally
abandoned by LESSEE shall become the property of LESSOR,
provided
that LESSOR gives LESSEE notice in writing of its opinion that
such has been abandoned and grants LESSEE a reasonable time to
remove said property.
INDEMNIFICATION OF LESSOR
LESSEE agrees to supply and provide all necessary machinery,
equipment and supplies to take and remove the sand and gravel
conveyed hereunder with no cost, expense or liability on the
part
of the LESSOR. LESSEE further agrees to hold LESSOR harmless
and
indemnify LESSOR from liability, claims or demands of third
parties or employees of LESSEE arising out of or caused by the
negligence of LESSEE or his operations hereunder. LESSEE
further
agrees to conduct his operations at all times in such a manner
as to not cause undue damage to the property of LESSOR, such
damage being inconsistent with normal sand and gravel
excavation and removal.
LESSEE further agrees to exercise caution to see that no sewage
lines passing through this area are damaged, and agrees to
repair
or replace at her expense. Any sewage lines damaged by LESSEE
during the term of this lease.
LESSEE agrees not to use explosive materials in its operation
hereunder without first notifying LESSOR of his intentions to do
so.
TAXES
LESSEE agrees to pay all contributions, levies, taxes and other
assessments resulting from its operations hereunder, for which
it
or LESSOR shall become liable with respect to wages for
employees
of LESSEE, social security and state taxes.
WAIVER OF RIGHTS
Each party hereto expressly reserves the right to waive any
breach of the conditions hereof as its option, but any such
waiver shall extend only to the particular breach so waived and
shall not limit the rights of the parties as to future breach
hereof.
EXHAUSTION OF MATERIALS
In the event that all materials sand and gravel deposits on the
leased premises shall be exhausted prior to termination hereof,
then in such event LESSEE shall notify LESSOR in writing of
such exhaustion, accompanied by a professional geologist
report. If
LESSOR finds after expert inspection, that the material deposits
have been exhausted, then this Lease Agreement is thereby
terminated.
DEFAULT
If either party shall default in the substantial performance or
observation of the terms and conditions hereof, and such default
shall continue for a period of thirty (30) days after written
notice thereof, the aggrieved party may institute appropriate
proceedings in a Court of competent jurisdiction to enforce the
terms and conditions hereof or to cancel and terminate the
obligators hereunder. However, LESSEE shall net be held
responsible for delays or casualties caused by any act of God or
natural conditions beyond LESSEE'S control
HEIRS AND SUCCESSORS IN INTEREST
All of the obligations and rights hereunder shall extend to and
be binding upon, and every benefit hereunder shall inure to, the
heirs, executors, administrators, successors or assigns of the
parties. LESSEE shall have the right to assign this lease with
the written consent of the Commissioner of the Alabama
Department of Corrections pursuant to Section 4l-l6-59, Code of
Alabama; (1975).
AMENDMENTS
The parties hereto reserve the right to make mutually agreeable
amendments hereto which may be required in order to comply with
applicable State or federal laws affecting the rights and
obligations hereunder, provided however, that if such
requirements of law make it economically unfeasible to comply
hereunder all guarantee of payments hereunder shall terminate.
EXCLUSIVE RIGHTS
The rights and privileges granted hereunder to explore mine and
remove sand and gravel shall be exclusive to LESSEE and LESSOR
covenants hereby not to grant any similar or conflicting rights
to anyone else during the term hereof. Nor shall LESSOR have
any right to remove any sand and gravel hereby conveyed for or
on
behalf of itself during the term hereof without the written
agreement and consent of LESSEE. LESSOR further covenants that
it will not create or grant any encumbrances or other rights
which will restrict or decrease the complete rights of
LESSEE
hereunder or unreasonably effect the successful operations and
rights of LESSEE hereunder.
FENCES AND LIVESTOCK
LESSOR agrees to maintain all fences and or gaps located upon
the
premises and not allow livestock to interfere with the
operations
of LESSEE hereunder, and agrees that LESSEE shall not be liable
for the death or injury of any livestock allowed on the premises
caused by LESSEE'S operation. LESSEE agrees to conduct his
operations at all times in such a manner as to not interfere
with
LESSOR'S livestock operations. LESSEE agrees to repair any
damage to fences or gaps caused by him and not necessary to the
operations and rights herein set forth.
EASEMENTS AND RIGHTS OF WAY
At the request of the LESSEE, LESSOR agrees to grant any and all
easements or rights of way necessary to provide electricity,
gas,
water or other utility service reasonably necessary for the
LESSEE'S operations hereunder to utility companies or other
third
parties, said easements and/or rights of way to be effective
during the entire term hereof, including any renewals. The
costs of providing said utility service to the premises or
locations thereon, exclusive of the value of said easements or
rights of way shall be borne by the LESSEE.
DISCLAIMER OF WARRANTY
The LESSOR hereby expressly disclaims makes no warranty of
quantity of sand and gravel on said premises. The LESSOR
further disclaims and makes no warranty regarding the type,
nature, suitability, merchantability, marketability,
specifications, or fitness for a particular purpose of the sand
and gravel on said premises.
NOTICES
Any notice or consent required hereunder, to be in writing shall
be deemed sufficient and timely if the same is placed in the
United States mail, certified mail, return receipt and
postmarked
within the time allowed hereunder, addressed to the party to be
so notified at its usual and customary business address.
IN WITNESS WHEREOF, the parties have hereunder to set their
hands
and seals or caused this instrument to be executed with full
and absolute authority to do so on the day herein above first
recited.
LESSEE
"Xxxxxx X. Xxxxxxx"
Xxxxxx X. Xxxxxxx
LESSOR
ALABAMA DEPARTMENT OF CORRECTIONS
BY:
"Xxxx X. Xxxxx"
Xxxx X. Xxxxx. Commissioner
