2003-08-08_REVISION - M1977020 (3)

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table. Lessor expects the finished and reclaimed pond will have a water depth of at least fifteen (15) feet. Any exceptions must be mutually agreed to in writing by both Lessor and Lessee. Lessee agrees •to pay for all material mined at the rate stated above or pay a minimum yeazly payment of Twelve Thousand Dollare in the event mining tonnages are below `_ons during any given calendar year. This mining Lease supersedes any other "Mining Lease" entered into between the parties. Lessee shall clear and remove all overburden and spoil material from the azea to be mined. Overburden and spoil material shall be used to construct a barrier berm along the south property boundary adjacent to the railroad right-of--way and also along the west property boundary along the edge of the drive-in theater. Trees over 6 inches in diameter shall be cut up and stacked. Other organic material maybe buried within the barrier berm in compliance with all regulations. The final barrier shall be constructed neatly with.uniform side slopes and a consistent height. Lessor shall provide access to Lessee, as presently existing, to and from the leased premises, but Lessor reserves the right, at all times, to enter upon and inspect the leased property. The Lessor also reserves the right for the Lessor or his designee to enter upon the property and perform surveys to determine the quantities of materials removed. The first survey shall be carried out after the overburden has been removed but before mining of the gravel has commenced. Lessee shall notify Lessor when area is ready for the survey. The Lessee shall grant the Lessor the Right of First Refusal in the event that the adjoining Delta Sand and Gravel Company Pit #1Lake is offered for sale. The Pit #1 Lake is located to the west of the premises. The price of the Pit # 1 Lake property, the exact configuration of the lake and contiguous .land, the condition of the Lakeshore and water quality of the Pit #1 Lake aze uncertain at this time. At this time, it is the intention of the Lessee to retain ownership of the Delta Sand and Gravel Pit #1 Lake for the foreseeable future. If Lessee fails or refuses to pay the rental as aforesaid promptly when due or fails for any reason to perform and fulfill all of Lessee's promises and covenants herein stated, then it shall be lawful for Lessor, their agent or attorney, to declare this Lease terminated and of no effect thereafter, and without process of law to enter upon and take possession of said property. In the latter event, and also at the expiration of this Lease, Lessee agrees to surrender and deliver to Lessor quiet and peaceable possession of said property, and upon failing to do so, Lessee shall be deemed guilty of forcible detainer under the applicable statutes. The Lessee is responsible to surrender property in good repair and in a reclaimed condition in accordance with the reclamation plan. Lessee agrees to indemnify and hold harmless Lessor against and from any and all liabilities, suits, losses, damages, claims, actions, costs and expenses of any nature, growing out of injury to or death of Lessee, its employees or subcontractors of any tier, and from any and all harm, destruction, loss or damage to persons or property arising in any way in connection with, or related to, the performance of any activities to be provided under this Lease. Lessee agrees to notify Lessor in writing of any problems, complaints or actions taken against or pertaining to the activity on the property. • The Lessor hereby covenants and agrees as follows: a. That the Lessor has good and merchantable title to the subject real property and is authorized to make and enter into this Lease.