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HomeMy WebLinkAbout1.29 Ownership and authority Appedix SWSA -BLUE PIT EXPANSION 2012 [Appendix S] OWNERSHIP AND AUTHORITY DESCRIPTION /DETAILS: This section provides information pertaining to the ownership of the subject property as well as authority to proceed with this permit process. The existing lease as well as the lease boundaries are included in this section as well. THIS SECTION INCLUDES: • This information is from the Technical Completion Process Fred Jarman, Planning Director Garfield County Building and Planning Department 108 Eighth Street, Suite 201 Glenwood Springs, CO 81601 Re: Western Slope Materials Major Impact Review Permit Dear Mr. Jarman: The undersigned is the record title owner of certain real property located in unincorporated Garfield. County known as 404 County Road 104 and 14682 Highway 82, Carbondale, Colorado and more particularly described on the attached . Exhibit A. This letter serves as formal authorization on behalf of the owner permitting Western Slope Aggregates, Inc. to make the above referenced land use application. Please do not hesitate to contact me with questions. Sincerely The Dolores (Dee) B. Blue Rev. Trust By Trustee 111111 Reception#: 790767 C1f19l2010.0i.37:45 Pn dean Atberico i of 3 Re* Fee.$16.00 Doc Fee:O,00 GARFIELD COUNTY CO SPECIAL WARRANTY DEED THIS DEED, made this between DEE BLUE grantor(s), and DOLORES (DEE) B. BLUE REVOCABLE TRUST, a Colorado Trust, whose legal address is: 404 County Road 104 Carbondale, CO 81623, grantee WITNESSETH, That the grantor(s), for and in consideration of the sum of: TEN AND NO /100 ----- - - - -._ -- DOLLARS, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has /have granted, bargained, sold and conveyed, and by these presents do(es) grant, bargain, sell, convey, and confirm, unto the grantee(s) his/her /its heirsand assigns forever, all the real property. together with all improvements, if any, situate, lying and being in the County of GARFIELD, and State of Colorado, described as follows: See Exhibit A (together with all water and mineral rights) also known by street and number as: Vacant Land TOGETHER with all and singular the, hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and • profits thereof; and alt the estate, right, title, interest; claim and demand whatsoever of the grantor(s), either in law or equity. of, in and to the above bargained premises, with the hereditaments and appurtenances; TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the grantee(s), his/her /its heirs and assigns forever. The grantor(s), for hirn/herlit sel(f)(ves), his /her /its heirs and personal representatives or successors, do(es) covenant and agree that he /her /it shall and will WARRANT AND FOREVER DEFEND the above- bargained premises in the quiet and peaceable possession of the grantee(s), his/her /its heirs and assigns, against all and every person or persons claiming the whole or any part thereof, by, through or under the grantor(s). IN WITNESS WHEREOF, The grantor(s) has/have executed this deed on the date set forth above. State of Colorado County of Mesa ) )a ee Blue. The foregoing was acknowledged before me this 14th day of January, 2010, by DEE BLUE, grantor. Witness my hand and official seal. Dennis E. Baker, Notary Public �lllIA V r.1412. S19111111 Receptions- 780767 01/1812050 81,37 :45 PM Jean Riherice 2 of 3 Rec Fee;tla.00 Doc Fe..0.00.coariEtO COUNTY CO • Exhibit A A parcel eland located in Sections 25 and 36, Township 7 South, Range 88 West of the 6th P.M., Garfield County, Colorado being more particularly described as follows: Beginning at the NW corner of the NE1/4 of the NW 1/4 of said Section 25 whence the NW comer of said Section 25 bears N 89 °34'37" W a distance of 131439 feet along the north line of said Section 25; thence S 89 °34'37" E along said north line of Section 25 a distance of 1314.39 feet to the NE corner of said NE1 /4 of the N W 114 of Section 25; thence S 02 °49'46" W along the east line of said NE1/4 of the N W 1/4 of Section 25 a distance of 1367.97 feet to the SE comer of said NEI /4 of the NW 1!4 of Section 25; thence S 88°58'01" E along the south lute of the N W 1/4 ofthe NE1 /4 of said Section 25 being also the north line of GLO Lot 1 of said Section 25 a distance of 1312.72 feet to the SE corner of said NW 114 of the NE1 /4 of Section 25; thence S 02 °18'30" W along the east line of said GLO lot 1 a distance of 1359.69 feel to the NW comer of the NE1/4 of the SEl /4 of said Section 25; thence S 89°18'33° E along the north line of said NE1 /4 of the SE1/4 of Section 25 a distance of 1047.54 feet to a point an said north line of the NE1 /4 of the SE1 /4 of Section 25; thence 5 00°25'58" E along the westerly boundary ofa parcel of land described in Book 516 Page 393 as recorded in the offiee of the Garfield County Clerk and Reorder a distance of 675.17 feet lo a point on the north 1/64 tine of the S 1/2 of said Section 25; thence continuing S 00 °25'58" E along said westerly boundary ofa parcel of land described in Book 516 Page 393 es recorded in the office of the Garfield County Clerk and Recorder a distance of675.10 feet to a point on the south 1 /16 line of Section 25; thence continuing along said westerly boundary ofa parcel of land described in Book 516 Page 393 as recorded in the office of the Garfield County Clerk and Recorder S 00°04'20" E a distance of 686.61 feet to a point; thence thence continuing along said westerly boundary ofa parcel of land described in Book 516 Page 393 as recorded in the office of the Garfield County Clerk and Recorder S 00 °0420" E a distance of 392.16 feet to a point being the centerline of the Basin Ditch from whence the Southeast comer of said Section 25 (1987 ELM 3" ALC) bears S 34°20'05" E a distance of 329.97 feet, said point being the southwest comer ofa Parcel of land described in book 516, page 393 and said point also lies on the north line ofa parcel of land described in book 642, page 719 being the Ranch at Roaring Fork, thence along the centerline of said Basin Ditch and said north line of the Ranch at Roaring Fork the following five courses: I) N 79°02'13" W a distance of 16127 feet; 2) thence N 88 °22'25" W a distance of 108.79 feet; 3) thence S 83 °42'35" W a distance of 116.20 feet; 4) thence S 73°47'47" W a distance of 15724 feet; 5) thence S 81 °2420" W a distance of 135.82 feet to apoint on the west line of Government l.ot 16; thence along said west tine of Lot 16 and the west line of said Ranch at Roaring Fork. parcel S 01°44'52" W a distance of 223.29 feet to the southwest corner of said Lot 16, said point being the northeast comer of Government Lot 2 of said Section 36 and lying on the south line of said Section 25; thence along the east fine of said Lot 2 and continuing along said west line of the Ranch at Roaring Fork parcel 5 00 °34'55" E a distance of 223.04 feet to a point on the north right -of -way of CDOT Parcel No. 106A for said State Highway 82 as described in book 900, page 462 as recorded In the- office of the Garfield County Clerk and Recorder, - thence along said north right- of-way N 80°41'48" W a distance of 1442.38 feet to a point on the south line of said Section 25 said point also being the beginning ofthe north right-of-way of CDOT Parcel No. 106 as described in book 900, page 461 as recorded lathe office of the Garfield County Clerk and Recorder; thence along said north right-of-way the following eight courses: 1) N 80°41'48" W e distance of424.95 feet to a point on the west line of the southeast 1/4 of said Section 25; 2) thence N 80°41'48" W a distance of 501A6 feet; 3) thence N 22 °52'58" W a distance of204.33 feel; 4) thence N 76°22' le" W a distance of 30.00 feet; 5) thence N 13 °37'42" E a distance of 10.00 feet; - 6) thence N 76°22'18° W adistance of336.08 feeg 7) thence S 81 °58'12" W a distance of 110.16 feet; 8) thence N 80°4 i'I0 W a distance of 1181.68 feet to a point on the east line ofa parcel of land described in book 641, page 298, said point also being on the east line of Government Lot 12 in said Section 25, and 1 �Iff Wel hiN1110 41101. hI 10141,1iiali W41 1111 01119!2010 01:37:45 Piz Jean Alwrt°° 3 v' 3 Rea Feeat0.00 Da Fee:0:0e GnRPJELO MINTY CO lying on a fenceline from whence the witness corner to the southwest comer of said Section 25 (1995 ' CDOT 3 -1 /4" ALC) bears S 83 16'13" W a distance of 508.05 feet; thence along said east line N 00 °00'58 "'W a distance of 770.69 feet to a point on the south 1/16 line of said Section 25 said point also being the SE;; thence continuing along said east line N 00 °00'58" W a distance of 607.74 feet to a point being the southwest comer of Tract 3 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)' as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015; thence S 89058'01" B along the southern boundary of said Tract 3 as amended on "Jean and bee Bhse Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015 a distance of 1220.82 feet to a point being the southeast corner of said Tract 3 as amended oo "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015; thence N 00 °05'51" W along the eastern boundary of Tract 3 as amended on Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015 a distance of 60.29 feet to a point on the north .1 /64 lineal the south h of said Section 25; thence continuing N 00 °05'51" W along said eastern boundary ofTract 3 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015 a distance of 855.68 feet to a point to the southeast confer of Amended Tract 2 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015; thence the following three courses along said Amended Tract 2 boundary: 1) N 00 °05'51" W a distance of 229.53 feet; 2)N 88 °22'41 "E a distance of 111.92 feet; 3)N 07 °59'34" W a distance of 112.42 feet to apoint on the southerly boundary of a parcel of land described in Book 466 Page 110 as recorded in the office of the Garfield County Clerk and Recorder, Thence the following three courses along the boundary of said parcel described in Book 466 Page 110: 1) N 89 °09'52013 a distance of 7.69 feet; 2) S 84 °16'08" E a distance of 212.85 fees; 3) N 0091'08" W a distance of 931.24 feet to a point being the northeasterly corner of a parcel of land as described in Book 1532 Page 865 as recorded in the office of the Garfield County Clerk and Recorder, thence S 89 °52'34" W along the northerly line of said parcel described in Book 1532 Page 865 a distance of 454.41 feet to a point an the west lure of said NE1 /4 of the NW 114 of said Section 25; thence N 03°25'25" E.along said west line of the NEI /4 of the NW L/4 of said Section 25 a distance of 130173 feet to the point of beginning; containing 364.1484 acres more or less. EXCEPTION' Excepting therefrom a parcel of land located in Section 25, Township 7 South, Range 88 West of the 6th P.M., Garfield County. Colorado described in Book 370 Page 89 as recorded in the office of the Garfield County Clerk and Recorder being more particularly described as follows: Beginning at a point whence the NW corner of the NEI /4 of the NW I/4 of said Section 25 bears N 43°24'08" W a distance of7I537 feet thence 5 60 °21'00" E a distance of 100.00 feet; thence S 29°39'00" W a distance of 150.00 fbet; thence N 60 °21'00" W a distance of 100.00 feet; thence.N 29 °3900" E a distance of 150.00 feet to the point of beginning; containing 0.34 acres more or less. Parcel area minus exception is 363.808 acres more or less. MINING LEASE THIS LEASE agreement is made and entered into this 1, K day of April, 2010, by and between DOLORES ( "DEE ") B. BLUE, as Trustee of the DOLORES ("DEE ") B. BLUE REVOCABLE TRUST (hereinafter referred to as the iLessor") whose address is 0404 County Road 104, Carbondale, CO 81623 and. WESTERN SLOPE AGGREGATES, INC., a Colorado corporation, of the County of Garfield and State of Colorado (hereinafter referred to as the "Lessee "). For and in consideration of the payment of.rent, the policies' royalties, hereinafter reserved, and the covenants and agreements herein contained, Lessor hereby leases to Lessee the property described in Exhibit A attached hereto and forming a part hereof, commonly known as the "Blue Pit," to have and to hold the same upon the following terms and conditions: 'I. TERM. This Lease shall have an initial and primary term of twenty (20) years, commencing the 1'4 day of April, 2010, and ending on the 315t day of March, 2030, unless sooner forfeited, terminated or extended as hereinafter provided. This Lease, atthe option of the Lessee, may be extended for four (4) additional five (5) year terms, and shall be subject to the provisions of Section 19. 2- TITLE. Lessor represents and warrants that the area covered by this Lease is free and clear of any and all liens adverse to the rights of Lessee hereunder and that Lessor .shall continue to maintain title to the leased premises without cost to Lessee . against any lien or claim adverse to Lessee not arising from any action of Lessee. Lessee acknowledges that Lessor has engaged the services of GAMBA AND ASSOCIATES to review the legal description of the leased premises set forth on the attached Exhibit A. -Lessor and Lessee agree that in the event said surveyor determines that there is a discrepancy in the legal description of the Blue Pit that Exhibit A shall be corrected to reflect the current legal description of the leased premises.. Furthermore,. if for any reason the additional Special Use Permit is not granted by the County as described below,- Exhibit A. shall be modified to remove there from any portion of the BIuie Pit which comprised the area -for which an additional Special Use Permit was requested. 3, USE. Lessee shall enter upon the leased premises and work the same. so as to mine the greatest amount of sand, gravel and aggregate possible consistent with the development and_ preservation of the premises under the terms and conditions of the Special Use Permit dated. December 21, 1981, issued by the County Commissioners of Garfield County, Colorado and the Mined Land Reclamation Permit No. M-1981-20.7 dated March 8, 1982, issued by the State of Colorado. Lessor .acknowledges that Lessee is currently diligently pursuing a similar Special Use Permit for portions of the property not yet permitted. . The .County may require that this additional Special Use Permit (i) be incorporated into the existing Special Use; or (ii) be a separate permit; or-(iii) replace the existing;Special Use Permit. Once obtalned, such additional Special Use Permit and all Page 1 of 1 conditions thereof shall, be incorporated into this Lease and Lessee shall comply with all provisions thereof. In.the event such additional Special Use Permit is not granted for any reason, this Lease shall .continue in full force and effect for those portions of the Blue Pit contained in the original above referenced Special Use Permit. 4. ROYALTY PAYMENTS. a.. PRICE PER TON. During the first year of the Lease, Lessee agrees to pay to Lessor as royalty the sum of 111111111111111.110111111. per ton for each and every ton of sand, gravel, topsoil, dirt, and related products removed from the leased premises. • b. ADJUSTMENT OF ROYALTY. The per -ton royalty for each of the years after the first year shall be the royalty for the immediately preceding year multiplied by'a fraction, the, numerator of which shall he the Index Figure (as defined below) for the immediately preceding calendar year; and the denominator of which shall be the Index Figure for the calendar year one year prior thereto. c. INDEX FIGURE. The. term index Figurer. means the consumer price index designated U.S. City Average - All Urban Consumers, as published by the U.S. Department of Labor's Bureau of Statistics, or any official replacement thereof. d. ACCOUNTING.. All material removed shall be weighed. Lessee agrees to keep accurate books of account (including weight tickets) showing the operations and particularly the amount of material removed, and to permit representatives of Lessor to examine such books o #:account at reasonable times during business hours. ' 5. RECLAMATION. Lessee agrees to keep, hold and stockpile sufficient dirt and topsoil to perform the reclamation activities required under Mined Land Reclamation Permit No. M-1981-207, as amended, and, in particular, replace 2.5 feet of topsoil free of rock on level areas. 8. FACILITIES; Lessee shall have the right to erect buildings, shops, scales; and utility lines, as needed for its operation. Lessee may install, maintain, and replace any and all machinery, equipment; tools. and facilities, which it may reasonably desire for tile use in connection with its operations on the leased premises. Lessee shall pay in full for all tabor :performed upon or material furnished to the leased premises at the instance or request of the Lessee, and shall keep the whole thereof free and clear of. any and all liens of mechanics or materiatmen. At the end of the Lease term Lessee shall have the rightto all property it has previously installed, on the premises and shall remove all such property, • ..Including but not limited to buildings, shops, scales and utility lines, from the leased property described in EXHIBITA at Lessee's sole cost and expense; provided however, with regard to the maintenance building constructed as a result of the. oral. contract between Lessee and Lessor: on. or about April 5, 1993, at the end. of the Lease term, Lessor shall have the option to: require Lessee to .remove the building from the leased .,Page 2 of. 2 • premises at Lessee's sole cost and expense; utilize the building in .its location without cost . or expense; or move and utilize the building in a new location at Lessor's sole cost and expense. Lessor shall have the further option to keep sufficient electrical lines (3 phase • line) to run the pumps for irrigation_ . 7. PERMITS.. Lessor has' acquired a Development and Extraction Mining Permit, . No. M-1981-207, as amended, from the Colorado Mined -Land Reclamation Board, a . Special Use Permit from the County: Commissioners of Gar€reld :County, Colorado and Emission Permit No. 00P00350 from .the Air Pollution Control Division of the Colorado Department of Health. The parties agree that. the Lessee will operate its•sand and gravel . ,operation•by retaining Lessor's permits and rights as granted by the Colorado Mined Land • Reclamation Board, the Garfield County Commissioners and the Department of Health, and.ali parties agree to cooperate to this end, provided that Lessee agrees to provide such bonds or other security as may. be. reasonably required. by. the Colorado Mined Land Reclamation Board or the; County guaranteeing the restoration and reclamation of the property in accordance with permit requirements. Lessee shall also file such reports, plan • Modifications and statistical data. as may be required by all permits and shall fully and completely `assume all responsibilities` thereunder. Annual reports and other documentation shall be submitted to Lessorfor approval. All fees to be. paid in connection therewith shall be paid byLessee. Lessee shall immediately take the necessary steps to. have all permits transferred into its own name. If that transfer is'approved by all necessary governmental entities, .Lessee shall keep ail such permits in full force and effect during the term of the Lease so • that if permitted. mining operations are not .completed at the • termination of the Lease, all.permits remain in-good standing and can be re- transferred to • Lessor or Lessor's designee. Lessee agrees to cooperate With Lessor in obtaining the re- transfer. Lessor's approval shall be required for any changes in the mining or reclamation plans proposed by Lessee, regardless of whose name the permits are in at that time. 8. OPERATIONS.. Lessee shall at all times comply in all respects with all the laws and regulations relating to theper€ormance.of work within the leased. premises. Lessee _ shall • provide Workmen's Compensation • lnsuranoe and other insurance to cover its personneland all of.its operations upon the premises in such amounts and in such form as Maybe required by law or in such higher amounts as may be prudent and customary in the industry. Lessee shall have full and sole responsibility for the operation and direction of . • the work done under this agreement on the•leased premises, and no employee .or agent • furnished by Lessee shall, under any circumstances, be deemed an employee of Lessor. . 9. INDEMNIFICATION. Lessee shall indemnify and hold Lessor harmless from any and all penalties, fines, costs, claims, demands, damages, or ,liabilities of any kind, . including attorneys' fees arid costs, arising out of or in connection with the operations, activities, or omissions of Lessee hereunder. • • • 10. TAKES.- . Lessee .shall pay. all personal .property taxes levied or assessed against its operation or improvements on the leased premises, and Lessee shall .pay the r • f . Page 3 of 3 Earth or Stone Products Land Value Gravel Productions Tax. Lessor will pay all real property taxes levied upon the property. Lessee shall have the righfto protest any change in assessed . value, and Lesser agrees to cooperate in any such protest or litigation, and to sign any documents in connection therewith. As part of such payment of taxes, Lessee shall be responsible for preparing and reviewing the annual declaration forms. Should Lessor, for any reason, .fail or refuse to pay such property taxes, Lessee may, in that event pay such taxes assessed upon the leased premises and apply such sums against future royalties earned. T 1. UTILITIES. Lessee shall be responsible for the payment of gas and electric utilities associated with its operations. 12. INSPECTIONS. Lessee shall furnish Lessor with full, true and accurate information in response to any reasonable request in . regard to the condition of the premises and allow representatives of Lessorto enter upon and into all parts of the leased premises from time to time and at all reasonable times and hours for the purpose of . inspecting orsunieYing the same; 13. USE BY LESSOR. - Lessor retains the right to farm,- graze, irrigate and • otherwise use on a noninterference basis any portion of the premises not occupied by - Lessee's operation and wilt not intentionally interfere with Lessee's activities in any way. Lessee shall have the sole right to determine the location and the orderly progressions of its operation; provided, however, the present hayfield consisting of approximateiyfourteen (14) acres shall not be mined during;the First or Second phases of the mining operation as those phases are outlined in the Mined Land Reclamation Permit. Lessee shall relocate and {or erect fences to keep livestock out of the pit operation area, and if, in the opinion of Lessee, locked gates are necessary on any access to operational areas, such gates shall be installed and maintained by Lessee with keys provided to Lessor. For purpose of allowing Lessor to utilize the leased property for agricultural purposes, within 30 days after Lessor's written request, Lessee shall provide Lessor with a written plan that details the Lessee's best estimate of the scope and the location of operations and reclamation . activities for the following 12 months. • 14.. ACCESS. Access to and from the plant site and 'operation area shall be as provided in the Special Use .Permit: All access roads shall be installed and maintained-by Lessee, and both Lessee and Lessor may utilize such roads but only in a manner s° as not to interfere with each other's access. Lessee shall not close off or cause to be closed, the present access road to Highway 82 as it may presently exist or may be altered in: response to any change in the location of the highway - 15. .WATER. Lessor has provided for water rights for the leased premises through District Court, Water Division No. 5, Case .No. 87CW364 as shown on EXHIBIT B. Water from the Basin Ditch will start as early as possible in the spring and continue as late as possible in the fall for Lessee's operation. Lessee will furnish provide all dues, pipes Page 4 of • 4 • and culverts necessary to transport water to its operations, and any relocation of ditches That is required by, the mining operations will be done at the expense of Lessee and at a time' to avoid interruption of irrigation to other portions of Lessors property not included herein: The parties acknowledge that from time to time it may be necessary to relocate the "Spring Ditch" which is the "Geiger Tunnel Ditch& Pipeline and McCarthy Waste Water Ditch & Upper Extension (Application Water Court 91CW066). In the event new pipe is laid or pumps. Installed, at the end of the termination of the Lease, such property shall • remain; in place and become the property of Lessor. Any such changes /relocations to either the Basin Ditch or the Spring Ditch shall not be made without notice to, and express consent from, the Lessor. All such changes /relocations,. shall be at the sole expense of Lessee. Lessee shall not make water calls on .upstream use without the express permission of •Lessor. 16. ASSIGNMENT. a. Lessee .shall have the right to assign this Lease to a successor operator only upon •prior written approval of Lessor.and provided that such sudcessor shall agree to be •bound' by and comply with any and all of the terms and conditions of this Lease, the Special Use. Permit, the Mined Land Reclamation Permit above described; and any other permits that may be required from time to time. Lessee shall also have the right to . sublease hereunder, subject to the same written approval and condition of compliance: . • • b. The.sale, transfer, assignment or other conveyance or agreement to do so (including; but not limited to any involuntary transfer by reason of the death of Lessee's shareholder(s) Or by bankruptcy of Lessee or judgment or execution) (whether legal. or equitable) of any of the capital stockof Lessee shall be an assignment of the. tease , which shatrrequire Lessors approval as stated above. Lessee .states that as of the execution of this Lease, Witham M. Roberts is owner of .100 percent .of the issued .and outstanding shares of the capital stock of Lessee_ c. • Lessor has entered into this long -term Lease, relying upon the business acumen and honesty of William M. Roberts, and,for no otherreason. Lessors approval as stated in paragraphs 16.a or 16.b is discretionary with Lessor, but such consent shall net • be unreasonablywithheid, conditioned nordelayed ;,provided, any assignee or sublessee is a-reputable and experienced mining-and/or concrete batch plant operator. d. MINIMUM ROYALTY IN EVENT OF ASSIGNMENT. • If Lessee..shall assign.this Lease as provided in paragraphs.16.a or I6.b herein, then the . • successor operator shall pay tc Lessor an annual mininnurn royalty payable in advance of each year of the Lease term regardless of production or activity on the leased premises. • Such minimum royalty shall be sufficient to keep and maintain this Lease in full force and • • effect in the event of non - production or production insufficient to generate a per ton•royalty equal to the minimum royalty. The minimum royalty shall not be in addition to the per-ton Page 5 of 6 ap¼ u royalty provided in paragraph 4 herein. Per-ton royalties due shall be set off against the minimum royalty paid until such time as per-ton royalties -due for production in a given Lease year exceed the minimum royalty paid. At that time Lessee shall begin making monthly payments on the first day of each ensuing month equal to the excess production in the previous month. The minimum royalty for the first yearthts Lease shall .be . The minimum royalty shall be adjusted each year in the same manner as a per -ton royalty provided in paragraph 4.b and 4.c herein. 17. DEFAULT. If for any reason :Lessee shall fail or refuse to comply with any material terms or provisions hereof, and such failure continues for a period of sixty (60) days after receipt of written notice by Lessor to., Lessee specifying the nature and character of the default, then, at the option of Lessor, this Lease and all right of Lessee hereunder shall be terminated and Lessee shall quietly and:peaceably surrenderthe leased premises to Lessor, provided, .however that Lessorwili not terminate this Lease if, through no fault of the Lessee such failure is impractical to correct within the sixty -day: period following .. Lessor's notice and if within .such period. Lessee commences and thereafter prosecutes with continuity and diligence measures to correct such failure. 18. TERMINATION. . During the term of this Lease, Lessee may, terminate the Lease at the end of any Lease year by giving written notice to Lessor ninety (90) days before the end of such Lease year. Upon such early termination, Lessee agrees to pay Lessor any unpaid per -ton royalties due in excess of the minimum royalty for that year, plus the prorated minimum royalty that would have been due for the first three (3) months (Ate coming Lease year. Lessee shall also deliver to Lessor a recordable instrument of surrender. In the event of termination of this Lease by expiration of the term hereof, or for any reason whatsoever, Lessee agrees to sUrrenderthe teased premises to Lessor in good condition and in full compliance with the above - mentioned Special Use Permit, Mined Land Reclamation Permit, and Emission Permit, and to cooperate with Lessor in keeping all permits in force and good standing until re-transferred to Lessor or Lessor's designee can be accomplished. Prior to the expiration of this Lease, or within ninety (99) days thereafter, Lessee shall effect the removal of machinery, equipment and improvements placed by it on the leased premises. Any such machinery,-equipment or improvements not removed prior to the expiration of ninety (90) days following termination of the Lease shall be deemed affixed to the leased premises and Shalt becorne and remain the property of Lessor. 19. EXTENSIONS. Lessor, as additional consideration for the royalties hereunder, grants to Lessee the irrevocable option to extend this Lease under the same terms and conditions for four (4) additional five (5) year periods. In the event of exercise of this option, the annual adjustment-in royalties shalt continue in the same manner as during the -primary term. Lessee shall give written notice to Lessor of its exercise of each option at least six (6) months prior to the expiration of the primary or extended term of this Lease. 20. RIGHT OF FIRST REFUSAL. Lessor, as additional consideration for the royalties hereunder, does grant to Lessee an irrevocable right offrst refusal to purchase a: Page 6 of 6 . portion of Lessor's property as offered at the time, Which may be seventy -two (72) acres, more or less, as described in EXHIBIT A attached hereto, under the same terms and conditions of any acceptable offer .received by Lessor :during the term of the Lease. Written notice of such acceptable offer, together with the terms thereof, shall be delivered • in writing to Lessee. Lessee shall have a,period of thirty (30) days from and after receipt of such .notice in which to accept and agree to purchase the property under the same terms and conditions as the acceptable offer. In the event Lessee shall decline to accept the offer 'or shall do nothing during. said thirty (30) day period, Lessor shall be free to accept such offer and sell such property subject, however, -to the balance of this Lease term.. 21. NOTICES. Any-written notice permitted or required under this Lease shall be deemed given and received when delivered in person or sent by certified mail, return .receipt requested, to the appropriate party at the address as either patty may designate by written notice: LESSOR: With copy to: LESSEE: Dolores B. Blue, Trustee DOLORES ( " ©EE ") B. BLUE REVOCABLE TRUST 0404 County Road 104 Carbondale, CO 81623 Dennis E. Baker, Esq. Younge & Hockensmlth, P.C. 743 Horizon Ct., Suite 200 Grand Junction, CO 81506 William Roberts . Westem Slope Aggregates, Inc. 0304 Highway 133 Carbondale, CO.81623 22. CONDEMNATION. In the event of legal condemnation of any portion of the leased premises, such portion of the premises shall be withdrawn from this Lease, and each party shall look to the condemnor for its damages. 23. OPERATION PRIOR= TO LEASE TERM. Lessee and Lessor acknowledge that there will be a .period_ of time between the execution of this Lease. by Lessee and Lessor and the commencement of the term of the Lease as specified in paragraph 1 herein during . which time the Lessee and Lessor wish the Lease and Lease terms to be in effect. During that period of time, Lessee agrees to pay to Lessor as royalty the sum of One Dollar ($1.00) per ton for each and every ton of sand; gravel, topsoil, dirt, and related products removed from the leased premises: All other provisions of this Lease shall apply and be in full force and effect during hat period of time Page 7 of 7 24. TERMINATION /REPLACEIIlIENT. The .parties to this Lease agree that this Lease shall supersede and replace" the Lease dated September. 1, 2005 and prior leases including•the lease dated August 15, 1990 and executed on September 8, 1995, extended for a five -year period by a letter dated August 1, 1995 from Lessee, and extended for another five -year period by a letter agreement dated February 3, 2000 between Jean M_ Blue and Dee Blue, as Lessor, and William M. Roberts, as Lessee. 25. MISCELLANEOUS. a. This Lease shall be binding upon "and.inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors, and assigns. b. .Either party may cause This Lease to be recorded in the records of Garfield County or may cause a memorandum of lease to be recorded referring to this Lease. c_ This Lease contains the entire:agreement between the parties and no part of it maybe changed, altered, modified or limited except by written agreement signed by each party. " IN WITNESS WHEREOF, the parties hereto have duly executed this agreement the day and year first above written. • LESSOR: DOLoRES ("DEEI ") B. BLUE REVOCABLE TRUST By Dolores B, Blue ( "Dee Blue")" Trustee .STATE OF COLORADO . )ss. COUNTY OF GARFIELD ) The above and foregoing instrument was acknowledged. before me this / s day of iiPre•e, , 2010, by Dolores B. Blue, as Trustee of the DOLORES ( "DEE ") B. BLUE REVOCABLE TRUST: WITNESS my hand and official seal. My commission expires: ley 15:1'3 • A. ; 40TA ft 0,01 LiG:QO Notary, Public. Page 8 of 8 y 4� LESSEE` j . STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) WESTERN SLOPE AGGREGATES, INC. a Colorado:corporatlon By: Lait)i..;•,. M William M. Roberts, President The above and foregoing, instrument was acknowledged, before me this i sf"day of !-lPcol, , 2010, by William M. Roberts, as President of Western Slope Aggregates, -Inc., a Colorado corporation.. . _ . • ' WITNESS my hand and official seal, My commission a A ires- N p ►�18: '13 3 . OTA R ftdNotay Public . Irk • Y . s t102.7 • OF CO \ e :Page '0 of 9 . Z.-v1 C) ,SCt -t tt�a a Blue Pit Lease Boundary Legal Description A parcel of land located in Section 25, Township 7 South, Range 88 West of the 6th P.M., Garfield County, Colorado being more particularly described as follows: Beginning at a point on the east line of a parcel of and described in book 641, page 298, said point also being on the east line of Government Lot 12 in said Section 25, and lying on a fence line from whence the witness corner to the southwest corner of said Section 25 (1995 CDOT 3- 1/4" ALC) bears S 83 161 3" W a distance of 508.05 . feet; thence along said east line N 00 °00'58" W a distance of 1378.42 feet to a point being the southwest comer of Tract 3 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat {Correction Plat)" as recorded in the office of the Garfield County Clerk and Recorder as Reception No. 689015; thence S 89 °58'01" E along the southern boundary of said Tract 3 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" a distance of 1220.82 feet to a point being the southeast corner of said Tract 3 as amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Platy; thence N 00°05'51" W along the eastem boundary of Tract 3 as .amended on "Jean and Dee Blue Amended Subdivision Exemption Lot Line Adjustment Plat (Correction Plat)" a distance of 61.97 feet to a point on the north 1/64 . line of the south 1/2 of said Section 25; thence S 89 °24'21" E along said north 1/64 line of the south 1/2 of said Section 25 a distance of 1423.90 feet; thence leaving said north 1164 line of the south % of said Section 25 S 22 °47'49" E a distance of 136.07 feet; thence S 44 °08'52" E a distance of 82.35 feet; thence S 46 °04'03" E a distance of 722.51 feet; thence 5 89 °26'3T' E a distance of 1442.26 feet to a point on the westerly boundary of a parcel of land described in Book 516 Page 393 as recorded in the office of the Garfield County Clerk and Recorder; thence S 00 °04'20" E along said westerly boundary a distance of 787.39 feet; thence leaving said westerly boundary S 74 °20'18" W a distance of 454.28 feet; thence S 64 °32'22" W a distance of 156.65 feet; thence S 83 °38'18" W a distance of 675.21 feet; thence N 78°52'30" W a distance of 487.74 feet; thence N 60 °47'43" W a distance of 92:13 feet; thence .N 87 °05'39" W a distance of 342.88 feet; thence N 87 °42'13" W a distance of 85.50 feet; thence S 74 °29'20" W a distance of 164.06 feet; thence S 01°18'20" W a distance of 117.30 feet; thence N 85 °2922" W a distance of 328.44 feet; thence N 83 °04'38" W a distance of 393.85 feet to a point on the north right -of -way of CDOT Parcel No. 106 as described in book 900, page 461 as recorded in the office of the Garfield County Clerk and Recorder; thence along said north right -of -way the following three courses: thence N 76 °221.8" W a distance of 336.08 feet; thence S 81°58'1 2 W a•distance of 110.16 feet; thence N 80 °4110" W a distance of 1181.68 feet; to the point of beginning, containing 146.6501 acres more or less. EARL G. RHODES t YEUUN V. WALE-TT BRENTA. CARLSON J. CHRISTOPHE=R BAL LARD BENJAMIN U WEGENER DENNIS E. BAKER PHILIP MARTINI MARGARET E FOLEY t ALSO ADMITTED Ili UTAH . ALSO ADMITTED LNOKLAFJOMA YOUNGE & IIOCKENS.l+IITII PROFESSIONAL CORPORATION ATTORNEYS AT LAW 743 HORIZON COURT, SUITE 200 GRAIN JUNCTION, COLORADO 81506 PHONE: 970- 242 -2645 FAX: 970 -241 5719 www.youngelaw.com January 20, 2010 THOMAS K YOUNGE (1908 -1997) FRANKML HOCKENSMrtH I919 -2002) OF COUNSEL RANG. GRIFFIN DENNIS E. BAKER dennistlyoungelaw.com TO WHOM IT MAY CONCERN: RE: Dolores B. ( "Dee ") Blue This letter is addressed to financial institutions having accounts for either Dee Blue as Trustee of The Jean M. Blue Revocable Trust dated April 8, 2002 or Dee Blue, as an individual. Please be advised that on November 20, 2008, Dee Blue under power of appointment as beneficiary and trustee of The Jean M. Blue Revocable Trust dated April 8, 2002, terminated such trust by written memorandum, a copy of which is attached. Be further advised that on January 14, 2010, Dee Blue created the DOLORES (DEE) B. BLUE REVOCABLE TRUST. Dee Blue is the Trustee of said Trust. If you have an account in the name of "The Jean M. Blue Revocable Trust dated April 8, 2002" or in the name of Dee Blue, individually, please change your account and the debt or security instruments to read "Dolores B. Blue as Trustee of the Dolores (Dee) B. Blue Revocable Trust." Since the trust will be the owner of the account, any `payable on death" ("P.O.D. ") designations are revoked. If you have any questions, please contact the undersigned, as attorney for the Trust. Sincerely; YOUNGE & HOCKENSIVIITH Professional Corporation Dennis E. Baker DEB/kat G:IDATA151157O4DOi R CELtr 1: iinstit aaseI 20.10.wpd