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HomeMy WebLinkAboutBMC Aggregates - Lease Agmnt-10/2/2017Please return this copy to• City Clerk & Finance Dept. 715 Mulberry 43 Waterloo, tP 5010 07 Lease Agreement ILA This Lease Agreement, dated this Z day of , 2017, (herein called this Lease) by and between the City of Waterloo of Black Hawk County, Iowa, (herein called the Lessor) and BMC Aggregates, L.C., an Iowa limited liability company (herein called the Company) with a place of business at 101 BMC Drive, Elk Run Heights, IA 50707: Witnesseth In consideration of the sum of $1,000, the receipt of which is hereby acknowledged, and which sum is to be considered advance royalty and deducted from first sales made until the royalty account is balanced, and on and subject to the terms and conditions provided in this Lease, Lessor hereby leases and grants to the Company all stone, sand and gravel, in, on, and under the below described property (herein called the Property), and the exclusive right to sample drill, and test for, develop, mine, quarry, extract, process, sell and remove same during the term of this Lease, The Property situated in Black Hawk County, Iowa, described as follows in the attached Exhibit A attached hereto and made a part of: Black Hawk County Parcel #8913-09-376-005 Sec 9 T89N R13W, And That portion of Black Hawk County Parcel #8913-09-476-001 located in the North one third (1/3) of this parcel, Sec9 T89N R13W All in Black Hawk County, Iowa Together with a right-of-way (herein called the right-of-way) of adequate width across adjacent property of Lessor to the public roadway and the unrestricted right of ingress and egress to and from the Property for the Company, its employees and invitees. 1. Term. The term of this Lease shall commence on the 1st day of January, 2018 and terminate on the 315t day of December, 2028. 2. Payments. The Company shall pay to Lessor for all stone, sand, and gravel mined, quarried, or extracted and sold and removed and for all overburden sold and removed from the Property during each calendar month of this Lease, royalties at the rate of 3% of the Company's Average Net Selling Price (ANSP) until the expiration or earlier termination of this Lease. The term Average Net Selling Price as used in this paragraph shall mean the Company's weighted average unit selling price, F.O.B. it plant on the Property, per ton of stone, sand, and gravel mined, quarried, or extracted and sold and removed from the Property and for all overburden sold and removed from the Property by the Company after deducting transportation charges, discount, and sales returns and allowances. A minimum annual royalty of $5,000, for all stone, sand, and gravel mined, quarried, or extracted and sold and removed from the Property shall be paid for that year of the Lease. On or before February 15th of the year succeeding each year of the Lease term, the Company shall determine if the minimum royalty has been met. Any difference owed the Lessor shall be paid by the Company on or before March 1" of that year succeeding each year of the Lease term. As provided in paragraph 7, the Company will have the right to sell such materials for up to two (2) years after the Lease term ends. The parties agree that royalties will also be paid to the City on the basis set forth in this paragraph 2 with respect to any period after end of the Lease term. The Company shall furnish to Lessor an accurate written statement of and shall pay Lessor royalties for the quantities of such stone, sand, and gravel sold and removed from the Property during each calendar month within 20 days after the close of such month. Lessor shall have the right at reasonable times to examine the Company's pertinent sales records to verify quantities of such stone, sand, and gravel sold and removed from the Property. 3. Operations. The Company's operations on the Property shall be conducted in a workmanlike manner but at times and in such manner as shall be determined by the Company in its sole discretion. The Company shall have the right to install, construct, operate, maintain, dismantle and remove all its plants, machinery, equipment, improvements and other facilities, including without limitation roads, rail lines, pipe lines, power lines, telephone lines, water courses, dams, ponds, and stockpile areas on the Property and right-of-way. The Company shall have the right during the term of this Lease and without any payment to Lessor (unless same is sold), to strip and remove overburden on and from the Property, and otherwise to use and occupy the Property, all as reasonably required in connection with mining, quarrying, extracting, processing, storage, sale and removal of stone, sand, and gravel in, on, under or from the Property and other property owned or leased by the Company. Lessor hereby authorizes the Company on its behalf and will assist the Company in obtaining zoning and other governmental classifications, permits, approvals, licenses, and rights reasonably required in connection with the lawful conduct of the Company's business and operations related to the Property. 4. Certain Liabilities. The Company assumes liability for personal injury and property damages resulting from the Company's negligent acts and omissions in, on, or about the Property, and shall indemnify and hold harmless Lessor against and from liability to third parties therefor and against and from any costs, expenses, damages, fines, fees, penalties or other liabilities of any type or nature arising from the Company's activities under this Lease including but not limited to reasonable attorney's fees. The Company shall name the Lessor as an additional insured for any and all of the Company's activities conducted on the Lessor's property and shall maintain a minimum of One Million Dollars ($1,000,000) for any liability coverage. A Certificate of Insurance shall be furnished to Lessor annually upon request from Lessor. 5. Ownership. Lessor represents and warrants that it has good and marketable title to the Property and to its stone, sand, and gravel and the unrestricted right to enter into and fully perform this Lease, and the Company shall have the undisturbed enjoyment of its rights in and to the Property provided for in this Lease. In the event the Property is or becomes subject to a 2 mortgage or other lien, the Company shall have the right but shall not be obligated to make for the account of Lessor such payments as are necessary to discharge such mortgage or lien, or alternatively to prevent or remedy default in respect thereof, and the amounts of any such payments shall be applied to reduce any payments which the Company is or thereafter becomes obligated to make to Lessor under this Lease. Lessor will promptly notify the Company of any default under or action to foreclose any such mortgage or lien. 6. Termination. Lessor shall have the right at its option to terminate this Lease upon 60 days written notice to the Company if the Company fails to perform any of its obligations hereunder and such failure continues for a period of 60 days after written notice by Lessor to the Company specifying such failure. If through no fault of the Company such failure is impracticable to correct within the 60 day period following receipt of written notice thereof, Lessor shall have no right to terminate this Lease if the Company commences with good faith and with due diligence to correct such failure. Lessor shall also have the right at its option to terminate this Lease after the end of 5 years of the term of this Lease in the event circumstances beyond the Lessor's control make it necessary in which event Lessor shall give a least one year prior written notice to the Company. The Company shall have the right to terminate this Lease by giving written notice at least 60 days prior to the end of any subsequent year of the term of this Lease if in the sole judgment of the Company, the deposit is depleted of all saleable stone, sand, and gravel in, on, or under the Property. Except as provided in paragraphs 7 and 8, upon any termination of this Lease by either party all rights and obligations of the parties hereunder shall cease except any right or obligation which accrued prior to the effective date of such termination. 7. End of Term. For two (2) years after the expiration of the term of this Lease or earlier termination hereof the Company shall have the right to sell and remove stone, sand, and gravel then stockpiled on the Property, and shall dismantle and remove plants, machinery, equipment improvements and other facilities installed or constructed on the Property by the Company unless by common agreement with the Lessor to leave such improvements. The Company will pay royalties to the City for post -term sales of such material as provided in paragraph 2. 8. Restoration of Property. Within two (2) years after the expiration or earlier termination of this Lease, the Company will notwithstanding the provisions of paragraphs 6 and 7 level portions of the Property on which the Company has piled overburden as nearly as practical to a level that will accommodate ultimate reseeding. 9. Notices. Payments shall be made to Lessor and notices shall be sent or given to the respective parties at their respective addresses set forth in the caption of this Lease or such other address as shall be specified in a notice given by such party to the other in accordance with this paragraph. 10. Successors. This Lease shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of the respective parties. 3 11. Waiver of Lateral Support. Lessor hereby confirms and agrees that the Company has the right to mine, quarry, extract stone, sand, and gravel, and overburden through and across all common property lines between the Property and other properties leased or owned by the Company and Lessor hereby waives any and all rights of lateral support from the other properties leased or owned by the Company insofar as such support may be affected by the Company's operations. The Company agrees that this paragraph applies to all common property lines between the Property and properties owned by the Company, but only to those common property lines between the Property and properties leased by the Company whose lessors have agreed to and signed a waiver of lateral support. 12. Entire Agreement. This Lease contains the entire agreement between the parties hereto and it nor any part of it may be changed, altered, modified, or limited orally or by any agreement between the parties unless such agreement be expressed in writing, signed and acknowledged by Lessor(s) and the Company, or their respective heirs, personal representatives, successors, and assigns. LESSOR COMPANY City of Waterloo, Iowa By: Quentin M. Hart, Mayor Attest: Kelley Felchle EIN 42-1172003 City Clerk 4 BMC Aggregates, L.C. Bv• hr' topher M. Dinsdale, President and Managing Member Exhibit A Legal Description Parcel 8913-09-376-005, legally described as: PARCEL OF LAND IN PART OF SE SW & NE SW DESC AS FOL: BEG AT S 1/4 COR SAID SEC 9 TH N 2313.6 FT ALONG E LINE SW 1/4 SAID SEC 9 TH S 08 DEG 20 MIN W 2340.5 FT TH E 406.3 FT ALONG S LINE SW 1/4 SAID SEC 9 TO PT OF BEG SEC 9 T 89 R 13 The northerly one-third of Parcel 8913-09-476-001, legally described as: THE NORTHERLY ONE-THIRD OF SE SE SEC 9 T 89 R 13 STATE OF IOWA COUNTY OF Notary Form On the L° ____day of 0L ->— before me, the undersigned, a notary ry public in and for said state, personally appeared Rvci -kl h + and identical persons named in and who executed the foregoing instrument, and acknowledged that they executed the same as their voluntary act and deed° My Commission Expires° 8 SS # NANCY HIGBY COMMISSION NO.788229 MY COMMISSION EXPIRES 3 z RFs * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * STATE OF IOWA / COUNTY OF /3/1 / /- /71a -L✓ k On the 2--O day of /-74_,,/, e j-- 20 before me, the undersigned, a Notary Public in and for said State, personally appeared: CHRISTOPHER M. DINSDALE President and Managing Member for BMC Aggregates L.C., as the identical person named in and who executed the foregoing instrument and acknowledged the he executed the same as his luntry act an deed. Notary Public My Commissioner Expires: Notary Number: o ,ori P LUND COMMISSION NO.132671 MY COMMISSION �7LPIRES JULY 18, " 2 =�