EXHIBIT 4.29
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THE
OMISSIONS HAVE BEEN INDICATED BY ("***"), AND EACH PAGE CONTAINING CONFIDENTIAL
INFORMATION IS FOOTNOTED WITH THE PHRASE "FOIA CONFIDENTIAL TREATMENT." THE
OMITTED TEXT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
Form 3600-9 FORM APPROVED
(October 2005) OMB NO. 1004-0103
Expires: March 31, 2008
Office
Winnemucca
Control Number
N-81483/MS-N2-17-06
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
CONTRACT FOR THE SALE OF MINERAL MATERIALS
The UNITED STATES OF AMERICA, acting through the Bureau of Land Management
(BLM), and James Hardie Building Products, Inc. you, the purchaser, make this
AGREEMENT, under the authority of the Act of July 31, 1947 (61 Stat. 681), as
amended at 30 U.S.C. 601 through 604, and the regulation of 43 CFR, Group 3600.
We agree:
Sec. 1. Contract area - Under the terms and conditions of this contract, the
United States sells to you and you buy the mineral materials listed in Section 2
and contained in the following lands as shown on the map and mining plan
attached to this contract:
COUNTY STATE TOWNSHIP RANGE SECTION ALIQUOT PARTS MERIDIAN ACREAGE
- ------ ----- -------- ----- ------- ------------- -------- -------
*** *** *** *** *** *** *** ***
STONE CORRAL
Sec. 2. Amount and price of materials - The United States determines the total
purchase price by multiplying the total quantity of each kind of mineral
material designated by the unit price given below, or as changed through
reappraisal.
QUANTITY PRICE
KIND OF MATERIALS (UNITS SPECIFIED) PER UNIT TOTAL PRICE
- ----------------- ----------------- -------- -----------
1) Quartzite Rock *** Tons $***/ton $***
2) Cost Recovery 2 hour $***/hour $***
======== ========= ====
TOTAL *** Tons $***/ton $***
-------- --------- ====
2 hours $***/hour
======== =========
BLM's determination of the amount of materials that you have taken under the
contract is binding on you. You may appeal this determination as provided in
Section 19.
You are liable for the total purchase price, even if the quantity of materials
you ultimately extract is less than the amount shown above. You may not mine
more than the quantity of materials shown in the contract.
Sec. 3. Payments, title and reapprovals. You may not extract the materials until
you have paid in advance for them in full $_______, or paid the first
installment of $*** (1st and last).
[ ] If you pay in full in advance, BLM will check this box, and Subsections
Sec. 3(a) through 3(c) do not apply to your contract. You must pay in full
for all sales of $2,000 or less.
(a) If you pay in installments, you MUST pay the first installment before
BLM approves the contract.
(b) Once you start removing material, you MUST pay each subsequent
installment payment monthly to an amount equal to the value of materials removed
in the previous month. Payment must be made by the 15th following the end of the
month for which you are reporting. You must pay the total purchase price not
later than 60 days before the contract expires.
(c) The United States will retain the first installment as security for
your full and faithful performance and will apply it to the last installment
required to make the total payment equal to the total price given in Section 2.
The total purchase price equals the sum of the total quantities removed,
multiplied by their respective unit prices.
If you are late making an installment payment, you MUST not remove any more
material until you have paid. Removing material you have not paid for is
trespass, and for trespass you MUST pay at triple the appraised unit price, or
at triple the reappraised unit price if BLM has made a reappraisal. To resume
removal operations after you were late making payments, you MUST obtain BLM's
written approval.
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FOIA Confidential Treatment
(d) You receive title to the mineral materials only after you have paid for
them and extracted them.
Sec. 4. Risk of loss - You assume complete risk of loss for all materials to
which you have title. If material covered by this contract is damaged or
destroyed before title passes, you are liable for all loss suffered if you or
your agents are directly or indirectly responsible for the damages. If you are
not responsible for the damage or destruction, you are liable only to the extent
that the loss was caused by your failure to remove the material under the terms
of this contract. You are still liable for breach of contract or any wrongful or
negligent act.
Sec. 5. Liability for damage to materials not sold to you - You are liable for
loss or damage to materials not sold to you if you or your agents are directly
or indirectly responsible for the damage or loss. You are also liable if you
fail to perform under the contract according to BLM's instructions and the
United States incurs costs resulting from your breach of any contract term or
your failure to use proper conservation practices. If the damage resulted from
willful or gross negligence, you are liable for triple the appraised value of
the damaged or destroyed materials. If the damage or destruction did not result
from willful or gross negligence, you are liable for lesser charges, but not
less than the appraised value of the materials.
Sec. 6. Stipulations and reserved terms - Your rights are subject to the
regulations at 43 CFR Group 3600 and to any stipulations and the mining plan
attached to this contract.
[X] BLM WILL CHECK THIS BOX IF THERE ARE STIPULATIONS ATTACHED TO THIS
CONTRACT.
Sec. 7. Notice of operations - You must notify BLM immediately when you begin
and end operations under this contract. If BLM has specified a time frame for
notification, you must comply with that time frame.
Sec. 8. Bonds - (a) You must furnish BLM with a bond in the amount of
$30,232.56* as a condition of issuing this contract.
(b) If you do not perform all terms of the contract, BLM will deduct an
amount equal to the damages from the face amount of the bond. If the damages
exceed the amount of the bond, you are liable for the excess. BLM will cancel
the bond or return the cash or U.S. bonds you supplied when you have completed
performance under this contract.
(c) BLM will require a new bond when it finds any bond you furnish under
this contract to be unsatisfactory.
Sec. 9. Assignments - You may not assign this contract without BLM's written
approval.
Sec. 10. Modification of the Approved Mining or Reclamation Plan. You or BLM may
initiate modification of these plans to adjust for changed conditions, or to
correct any oversight. The conditions for BLM requiring you to modify those
plans, or approving your request for modification are found in the regulations
at 43 CFR 3601.44.
Sec. 11. Expiration of contract. This contract will expire five (5) years ___
months, ___ days from its approval date, unless BLM extends the term or renews
the contract.
[ ] BLM WILL CHECK THIS BOX IF THIS CONTRACT IS A RENEWABLE COMPETITIVE
CONTRACT.
Sec. 12. Renewal of renewal competitive contract. BLM will renew your contract
if you apply in writing no less than 90 days before your renewable competitive
contract expires and you meet the conditions in the regulations at 43 CFR
3602.47.
Sec. 13. Violations and cancellations. (a) If you violate any terms or
provisions of this contract, BLM may cancel your contract following the
regulations at 43 CFR 3601.60 et seq., and recover all damages suffered by the
United States, including applying any advance payments you made under this
contract toward the payment of the damages.
(b) If you extract any mineral materials sold under this contract
during the suspension period, or after the contract has expired or been
canceled, you have committed, and may be charged with, willful trespass.
Sec. 14. Responsibility for damages suffered or costs incurred by the United
States. If you, your contractors, subcontractors or employees breach this
contract or commit any wrongful or negligent act, you are liable for any
resulting damages suffered or costs incurred by the United States. You must pay
the United States within 30 days after receiving a written demand from BLM.
Sec. 15. Extensions of time. BLM may grant you an extension of time in which to
comply with contract provisions under the regulations at 43 CFR 3602.27. For
contracts with terms over 90 days, you MUST apply in writing no less than 30 or
more than 90 days before your contract expires. For contracts with terms of 90
days or less you MUST apply no later than 15 days before your contract expires.
Sec. 16. Time for removing personal property. You have 30 days (not to exceed
90) from the date this contract expires to remove your equipment, improvements
and other personal property from United States lands or rights-of-way. You may
leave in place improvements such as roads, culverts and bridges if BLM consents.
Any property remaining after this period ends becomes the property of the United
States, but you will remain liable for the cost of removing it and restoring the
site.
Sec. 17. Equal opportunity clause - The actions you take in hiring MUST comply
with the provisions of Executive Order No. 11246 of Sept. 24, 1965, as amended,
which describe the non-discrimination clauses. You may get a cop of this order
from BLM.
- ----------
* Will carry over $10,000 Reclamation Bond from N-80661.
2
Sec. 18. Effective date. This contract becomes effective as indicated below.
[X] IF THIS CONTRACT BECOMES EFFECTIVE ON THE DATE BLM SIGNS THE CONTRACT, BLM
WILL CHECK THIS BOX.
[ ] IF THIS CONTRACT BECOMES EFFECTIVE ONLY AFTER CERTAIN CONDITIONS ARE MET,
BLM WILL CHECK THIS BOX, LIST THE CONDITIONS BELOW, AND INDICATE THE
EFFECTIVE DATE.
Sec. 19. Appeal. You may appeal any decision that BLM makes in regard to this
contract under Parts 4 and 1840 of Title 43 of the Code of Federal Regulations.
The following parties have executed this contract as of
PURCHASER THE UNITED STATES OF AMERICA
James Hardie Building Products By: /s/ Dave Hays
(Individual or Firm Name) --------------------------------
3000 Waltham Way, McCarron, NV Dave Hays
(Address) ----------------------------------------
(Authorized Officer)
775-355-3000 AFM Nonrenewable Resources
(Phone Number -- include area code) (Title)
/s/ Usman Khawar 3-16-06
- ------------------------------------- (Date)
(Signature)
- -------------------------------------
(Signature)
If you are a corporation, affix corporate seal here:
Title 18 U.S.C. 1001 makes it a crime for any person knowingly or willfully to
make to any department or agency of the United States any false, fictitious or
fraudulent statements or representations as to any matter within its
jurisdiction, subject to a fine of up to $10,000 and imprisonment up to 5 years.
The Paperwork Reduction Act of 1995 requires us to inform you that:
BLM is collecting this information to process your application and effect a
binding contract.
BLM will use this information to identify and communicate with applicants.
You MUST respond to this request to get a benefit.
A federal agency may not conduct or sponsor, and you are not required to respond
to, any information collection which does not have a currently valid OMB control
number.
AUTHORITY: 30 U.S.C. 601 et seq.: 43 CFR 3600
PRINCIPAL PURPOSE: BLM uses this information to identify the parties entering
into contracts for disposing of mineral materials.
ROUTINE USES: BLM will transfer information from the record or the record itself
to appropriate federal, state, local or foreign agencies, when relevant to
criminal, civil or regulatory investigations or prosecutions.
EFFECT OF NOT PROVIDING INFORMATION: If you do not provide this information to
BLM, we will not be able to process your application for a contract.
BLM estimates the public reporting burden for this form at an average of 30
minutes per response, including the time for reviewing instructions, gathering
and maintaining data, and completing and reviewing the form. Direct comments
regarding the burden estimate or any other aspect of this form to U.S.
Department of the Interior, Bureau of Land Management, Bureau Information
Collection Clearance Officer, (1004-0103), 1849 C St., N.W., Mail Stop 401 LS,
Washington, D.C. 20240.
(Form 3600-9, Page 3
Special Stipulations
Over 15,000 cubic yards
#N-81483
1. Permittee will provide an annual, pre-and post-survey by a certified
surveyor for determining pit dimensions and quantity of material removed.
2. All equipment and machinery shall be equipped with spark arresters and
mufflers.
3. Permittee is responsible for all suppression costs for any fire resulting
from their operations and practices.
4. Permittee is responsible for disposing of all debris in accordance with
state and federal regulations.
5. Pursuant to 43 CFR 10.4(g) the holder of this authorization must notify the
authorized officer, by telephone, with written confirmation, immediately
upon the discovery of human remains, funerary objects, sacred objects or
objects of cultural patrimony. Further, pursuant to 43 CFR 10.4(c) and (d),
you must stop activities in the immediate vicinity of the discovery and
protect it from your activities for 30 days or until notified to proceed by
the authorized officer.
6. When previously undiscovered antiquities or other objects of historic or
scientific interest including but not limited to historic or prehistoric
ruins, vertebrate fossils or artifacts are discovered in the performance of
this permit, the item(s) or condition(s) will be left intact and
immediately brought to the attention of the authorized office of the BLM.
7. No toxic materials or fluids shall be disposed of at the material site.
8. Topsoil will be stockpiled for pit rehabilitation measures.
9. Reclamation measures shall consist of:
A. Between operations, the pit walls shall be maintained at a slope ratio
not to exceed 3:1, so as to minimize slope failure potential and
public safety hazards.
B. When a pit segment has reached final configuration:
a. At the authorized officers request, all rejected oversized
material will be buried in the excavation prior to
rehabilitation.
b. The pit walls shall be sloped, not to exceed 3:1, and ripped or
disked along contour.
c. The pit segment floor and access routes are to be disked or
ripped to loosen compacted soils.
d. Stockpiled topsoil shall be spread evenly over the sides and
bottom of the pit segment excavation.
e. At the Area Managers discretion, areas stripped of vegetation
shall be re-seeded, after disking and using a seed drill, with
the following mixture (per acre):
7 lbs. Crested wheatgrass "NORDAN" (Agrypyron cristatum)
2 lbs. Ladak Alfalfa
1 lb. Fourwing saltbush (Atriplex canescens)
1 lb. kochia
2 lbs. Nev. Ephedra
f. Of, after disking, the following mixture can be broadcast (per
acre):
2 lb. Fourwing saltbush (Atriplex canescens)
9 lbs. Crested wheatgrass "NORDAN" (Agrypyron cristatum)
4 lbs. Ladak Alfalfa
2 lbs. kochia
2 lbs. Nev. Ephedra
C. When the pit has been exhausted, the items in B above shall be
completed, and the pit access shall be reclaimed per 9.B.c. and 9.B.e.
Alternate species must meet BLM approval prior to their use.
The non-native exotic species contained in these seed mixtures were
selected because they can be confined to the project area and can
compete successfully against invasive noxious weeds.
The use of these exotic species is in accordance with Executive Order
11987 -- Exotic organisms, dated May 24, 1977, Sec. 2(d); Where there
has been a determination that there will be no effect on natural
ecosystems.
All seeds used are approved by the U.S. Department of Agriculture.
10. Mining and removal shall be confined to the area described in the contract.
11. There shall be no prospecting or testing outside the pit working areas
without contacting BLM before any work is done.
12. At all times during the performance of this contract and until the work is
completed and the reclamation is accepted, an employee of purchaser shall
directly supervise the work on this project. Alternatively, the purchaser
may assign and have on the job a competent superintendent who is
satisfactory to the BLM Authorized Officer, and who has authority to act
for the purchaser.
13. Permittee shall notify BLM if a second party is removing material from the
contract area under permittees contract.
14. The permittee shall be responsible for controlling all noxious weeds and
other undesirable invading plant species in the reclaimed area until the
revegetation activities have been determined to be successful and signed
off by the BLM authorized officer. The operator shall obtain approval from
the BLM authorized officer for any and all applications of herbicide,
including types and quantities. ALL SEED SHALL BE TESTED FOR PURITY,
NOXIOUS, POISONOUS AND/OR PROHIBITED PLANT SPECIES, AND THE TEST RESULTS
SUBMITTED TO AND APPROVED BY THE BLM AUTHORIZED OFFICER, UNLESS CERTIFIED
WEED FREE SEED IS PROCURED FOR THIS RECLAMATION PROJECT.
I agree to abide by the above Special Stipulations:
/s/ Usman Khawar 3/15/06
- ------------------------------------- Date
Signature