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I llllll 11111 Illlll ltllll 11liI IIIII IllII III 1lIII IIlI IlII
<br /> 3528507 01/11/2008 01:27P Weld County, CO
<br /> 1 of 4 R 21.00 D 0.00 Steve Moreno Clerk& Recorder
<br /> MEMORANDUM OF
<br /> 507 SURFACE USE AND MINING AGREEMENT
<br /> This tvlentorandtnn of'Surfcu•e Use and Mining Agreement("Memorandum")dated this 9th day of
<br /> January, 2008 ("Efective Date") by and between HOLTON FAMILY, LLC (the "Holton"), a Colorado
<br /> limited liability company, and READY MIXED CONCRETE COMPANY (the "Colnjlanj"), a
<br /> Colorado corporation. Seller and Company may be referred to collectively herein as the "Parties" or
<br /> individually as a"Purly."
<br /> RECITALS
<br /> WHEREAS Seller owns approximately 320 acres of land located in parts of Sections 6 and 7,
<br /> Township I North, Range 66 West of the 6"'principal meridian in unincorporated Weld County, Colorado
<br /> (the "Properly"), which is described in Exhibit A hereto;
<br /> WHEREAS Seller and the Company entered into that certain Option crud Agreement to Purchase
<br /> ('oustrttelion Aggregcte Mulericrls in Plctce made effective August 26, 2005, pursuant to which: (i) Seller
<br /> granted to the Company an exclusive option to purchase the Construction Aggregate Materials in place on
<br /> the Properly; and (ii) the Parties established the definitive terms of a Mineral Dee(!and Surface Use and
<br /> /Llining Agreement ("Mining Agreement") necessary to complete such purchase and sale, and to
<br /> commence mining, operating on, and reclaiming the Property should the Company elect to exercise the
<br /> option granted by Seller.
<br /> WHEREAS the Company executed the option contemplated in the Option uncl Agreement to
<br /> Purchuse Construction Aggregute Materials in Place by letter to Seller dated December 14,2007;
<br /> WHEREAS the Parties wish to place of' record notice of the Mining Agreement in the land
<br /> records of Weld County,Colorado.
<br /> NOW,THEREFORE,the Parties confirm the following:
<br /> AGREEMENT
<br /> I. Grant of Right to Use Su►•face. By virtue of the Mining Agreement Holton confirms,
<br /> extends and grants to the Company, its successors and assigns, the exclusive right and privilege to enter
<br /> upon, through and under the Property, and to conduct thereon such operations as the Company deems
<br /> necessary or convenient in connection with the exploration,development, mining(by open pit,(try, wet or
<br /> slurry methods in the Company's discretion), processing or marketing, and distribution oi'Construction
<br /> Aggregate Materials found in, on and under the Property. The rights herein granted shall specifically
<br /> include, without limitation, (i) the right to use and improve the existing roads, (ii) the right to construct,
<br /> maintain and use additional roads, (iii) the right to construct, maintain and use on or within the Property
<br /> any and all structures, equipment or facilities necessary or desirable for the mining, processing and
<br /> distribution of Construction Aggregate Materials, (iv) the right to remove the forgoing structures,
<br /> equipment and facilities, (v) the right to utilize so much of any existing water rights appurtenant to or
<br /> historically used in connection with the Property or which may be otherwise available to Holton to offset
<br /> any evaporative loss of water from the Property that occurs during the course of mining and processing of
<br /> Construction Aggregate Materials, and the Company's related operations, including without limitation
<br /> dust control, water removed with mined Construction Aggregate Materials, reclamation irrigation and
<br /> similar operations(including,but not limited to,materials washing operations);(vi)the right to conduct to
<br /> the final satisfaction of any State or local governmental authority all reclamation activities required on the
<br /> Property; (vii) the right to negotiate in consultation with Holton any surface use agreement with oil and
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