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HomeMy WebLinkAboutResolution - 6452 - Grazing And Crop Agreement - Todd Lockaby - 08_12_1999Resolution No. 6452 Aug. 12, 1999 Item No. 42 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Grazing and Crop Agreement between the City of Lubbock and Todd Lockaby of Lubbock, Texas, and any other related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 12th day of August 1999. IN Y 5I , M OR ATTEST: i �-4 hell !Ckyt�j Darnell, City ecretary APPROVED AS TO CONTENT: Terry Eller roo Managing Director Water Utilities APPROVED 7ORM: chard K. as er Natural Resources Attorney RKC:cp Ccdocs/LockabyTodd.Res June 15, 1999 Resolution No. 6452 Aug. 12. 1999 Item No. 42 GRAZING AND CROP AGREEMENT STATE OF TEXAS § COUNTY OF LYNN § This Agreement is made this 12t' day of August, 1999, but effective for all purposes as of January 14, 1999, by and between Todd Lockaby (the "Lessee"), whose mailing address is P.O. Box 393, Tahoka, Texas 79373, and the City of Lubbock, a Texas Home Rule Municipal Corporation (the "Lessor"), whose mailing address is P.O. Box 2000, Lubbock, Texas 79457. ARTICLE I GRANT 1.01. In consideration of the mutual covenants and agreements set forth in this Agreement, Lessor leases to Lessee, subject to the terms, provisions and limitations set forth herein, the right to grow crops and graze cattle upon surface estate only of the property described on Exhibit "A", attached hereto, which is owned by Lessor and located in Lynn County, Texas (the "Farm"). 1.02. It is expressly agreed and understood that this Agreement does not grant to Lessee any rights to utilize, in any way, manner or form, any houses, dwellings, barns, sheds or other structures located upon the Farm and that the rights granted herein are expressly limited to the growing of crops and grazing of cattle, as set forth in this Agreement. All other uses of the Farm by Lessee are expressly prohibited and Lessor reserves the rights to all other such uses. ARTICLE II AGREEMENT TERM 2.01. As to the portion of the Farm included in the Summer Grazing Program, as set forth in Section 5.01, the term of this Lease shall be from January 14, 1999, to (i) the Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 1 of 21 end of the Summer Grazing Program; or (ii) October 1, 1999, whichever is the first to occur. 2.02. As to the portion of the Farm that is not included in the Summer Grazing Program, the term of this Lease shall be from January 14, 1999 to (i) the date of harvest of the cotton crop, or other approved crop, grown thereon; or (ii) November 15, 1999, whichever shall be the first to occur. 2.03. This Agreement shall terminate without further notice when the term specified in this Article II expires. Lessee shall immediately vacate the Farm upon the expiration or termination of this Agreement. Any holding over by Lessee shall not constitute a renewal of this Agreement nor give Lessee any rights under this Agreement or to the Farm. If Lessee holds over and continues possession of the Farm or any portion thereof after this Agreement expires or otherwise terminates, Tenant shall be considered as a tenant at sufferance. Notwithstanding anything to the contrary herein, in the event of holdover, Lessee shall be entitled to no notice prior to Lessor taking or exercising any remedy available to it. ARTICLE III RENT 3.01. During the term of this Agreement, Lessee shall pay to Lessor the following as rent for this Lease: (a) As to lands included in the Summer Grazing Program and being grazed by Lessee, the Lessee agrees to deliver to Lessor, as rent, the sum of Five Dollars and no/100 ($5.00) per head of cattle grazed upon said lands, per month of said grazing. (b) As to lands included in the Summer Grazing Program, and being grazed by permitted assignee, contractor or sublessee of Lessee, Lessee agrees to deliver to Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 2 of 21 Lessor, as rent, one-third (1/3) of all proceeds of any type, manner or kind, received by Lessee from such sublease or contract arrangement. As set forth in Section 5.02, any proposed sublease or assignment of this Lease by Lessee, in form and substance, shall be subject to the approval of Lessor, in its sole and absolute discretion. In the event said lands are being grazed by an assignee, contractor or sublessee of Lessee as of the date of the execution of this Agreement by Lessor, Lessee shall provide the relevant agreements to Lessor for review. In the event Lessor finds the agreement(s) unacceptable, in its sole and absolute discretion, Lessor may terminate this Agreement. Notwithstanding said termination, Lessee shall pay to Lessor the rent, as provided herein, accruing to the date of termination of this Agreement. (c) As to lands included in the Summer Grazing Program, and crops are harvested, in any way, manner or form, other than by grazing (i.e., including, without limitation, haying, silage, greenchop, etc.), Lessee agrees to deliver, or cause to be delivered, to Lessor, as rent, one-third (1/3) of such crop produced and harvested. (d) As to lands included in the Dry Land Program, as set forth in Section 5.03 Lessee agrees to deliver to Lessor, as rent, one-third (1/3) the crop or one-third (1/3) of sale proceeds, as directed Lessor, of all cotton and cottonseed and/or other approved crop produced on said lands. (e) Lessee shall deliver to Lessor all rent due hereunder (i) if contract benefits, within twenty four (24) hours of receipt of same by Lessee; or (ii) if production share, within one (1) week after harvest. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 3 of 21 ARTICLE IV LANDLORD'S LIEN AND SECURITY INTEREST 4.01. Pursuant to Chapter 9 of the Texas Business and Commerce Code (the "UCC"), Lessee grants to Lessor a security interest to secure the payment of all rent that may become due under this Lease. This security interest attaches to all crops raised on the Farm, all proceeds from the sale of those crops, all presently living and subsequently acquired or born livestock owned by Lessee on the Farm, all proceeds from the sale of such livestock, and all contract rights related to the Farm or Lessee's operation of the Farm, including without limitation, contract rights regarding any permitted sublease, lease assignment or contract that Lessee may enter into pursuant to the terms hereof. 4.02. In addition, Lessee grants to Lessor a security interest in all property described in any effective financing statement or notice of security interest executed by Lessee in compliance with either the UCC or U.S. Food Security Act of 1985, as amended (the "FSA"). Itemization of farm products in any FSA — related documents shall not be deemed to limit the generality of any other collateral description under the UCC. Lessee shall provide to Lessor a written list of buyers, commission merchants, selling agents, and gins (including addresses and telephone numbers) to or through whom the Lessee intends or expects to sell collateral constituting farm products under the UCC or the FSA. The list shall be provided at least seven (7) days before any sale of any farm products. In addition, Lessee shall provide an initial list with the execution of this Lease. Lessee shall execute all writings and forms and provide all information necessary or convenient for satisfaction by the Lessor and Lessee of all requirements of the UCC and FSA, including implementing regulations. The carbon or photocopy of the original of any executed form or writing shall be deemed signed by Lessee for all purposes under the Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 4 of 21 UCC and FSA. Lessee warrants that all information furnished to Lessor for this purpose is accurate and complete. Lessor is authorized to give written notice of its security interest to all persons or firms selected by Lessor. 4.03. If there is any change in the amount, year, description, or location of any farm product collateral, Lessee shall inform Lessor within two (2) days of such change. In any case, Lessor is authorized to amend any applicable financing statements or notices of security interests. Any such amendment shall be deemed signed by the Lessee if the original, carbon, or photocopy of the original effective financing statement or notice of security interest is attached to the amendment. Lessee grants an irrevocable power of attorney, coupled with an interest, to Lessor for the purpose of executing any such amendment in the name of the Lessee. This power of attorney shall terminate only upon full payment and satisfaction of all secured obligations. Lessor shall give Lessee contemporaneous notice of the exercise of this power of attorney. 4.04. Lessee shall not transfer or encumber the collateral except with the prior express written approval of the Lessor or as provided in this paragraph. Until Lessee receives written notice from Lessor of Lessee's default under this Lease, Lessee may sell farm -product collateral for cash at fair -market value to or through those persons or firms described in a list or lists furnished to Lessor under this Article IV. All transfers and encumbrances, whether approved or unapproved, shall be subject to the Lessor's security interest, which shall survive any transfer or encumbrance and continue in full force and effect. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 5 of 21 NOTICE UNDER THE FOOD SECURITY ACT OF 1985,7 U.S.C. SECTION 1631(h)(3), A SALE OF FARM PRODUCTS IN VIOLATION OF THIS AGREEMENT MAY RESULT IN A FINE OF NOT LESS THAN FIVE THOUSAND DOLLARS AND NO/100 ($5,000.00), UNLESS LESSEE ACCOUNTS TO LESSOR FOR THE PROCEEDS OF SALE NO LATER THAN TEN (10) DAYS AFTER THE SALE. 4.05. The security interest in transferred or encumbered collateral shall be extinguished only by the filing of a written release executed by the Lessor or by Lessor's receipt and unqualified acceptance of all cash proceeds of any authorized transfer of the collateral. Lessor may condition release of the security interest upon arrangements satisfactory to Lessor. The filing or sending of any effective financing statement or notice of security interest shall not in any way constitute or imply authorization to Lessee to sell or dispose of collateral free of the security interest. ARTICLE V CROPPING 5.01. A certain portion of the Farm, namely Pivot numbers 10, 11, 12, 14, 16, 17, and 18, as depicted in Exhibit "A", are located within areas of land covered by center pivot irrigation or land application systems. Within said landsf and other lands not included in the areas covered by center pivot irrigation or landi, application, as approved by the Lessor, in its sole and absolute discretion, Lessee shall �IImplement a Summer Grazing Program (herein so called), wherein Lessee shall plan and cultivate summer forage crops, as expressly approved by Lessor, in its sole and absolute discretion, to be utilized for the grazing of cattle. 5.02. Lessee, upon express written approval of Lessor, may assign or sublease this Lease, or contract with third parties, to graze cattle on lands included in the Summer Grazing Program. It is expressly agreed and understood that the assignment rights of Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 6 of 21 Lessee are limited to the grazing of livestock on said lands, subject to the approval of Lessor, as set forth herein, and shall not extend to any other activities on said lands, nor any activity whatsoever in lands included in the Dry Land Program. The approval of Lessor as to the assignment, sublease or contract shall be in its sole and absolute discretion. This Lease shall bind and inure to the benefit of the Lessee, and to the extent assignable, any Lessor -approved successor, assignee, or sublessee of Lessee, and to the benefit of the Lessor and Lessor's successors and assigns. 5.03. Lessee shall plant cotton or other crops as approved by Lessor, in its sole and absolute discretion, in all lands comprising the Farm that are not located within the Summer Grazing Program (the "Dry Land Program"). Lands included in the Dry Land Program shall not be irrigated unless Lessor desires, in its sole and absolute discretion, to apply effluent on said lands. The Dry Land Program shall be operated by Lessee in such a manner so as to not interfere, in any way, manner or form whatsoever, with the land application or irrigation of effluent activities upon the Farm, the grazing of livestock, or livestock handling operations of any type, as determined by Lessor, in its sole and absolute discretion. All of Lessee's operations related to the Dry Land Program shall be subject to the prior written approval of Lessor (including, without limitation, type of crop, if other than cotton, time and type of cultivation practices, time and date of planting, time, type and date of pest and weed control, time, type and date of fertilization activities, and time and manner of harvest). 5.04. All cropping activities and other activities of Lessee hereunder, including time and manner of planting and cultivation, shall be performed in a timely, efficient, Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 7 of 21 economic and farmerlike manner, using all modern methods of farming that are customarily practiced in the area. ARTICLE VI IRRIGATION 6.01. Lessee hereby expressly agrees and stipulates that the primary purpose and use of the Farm is as an effluent disposal site for effluent produced by the Lessor. Due to its intended purpose, portions of the Farm may not receive effluent in quantities and at times necessary for optimum growth of crops on the Farm. Additionally, Lessee hereby expressly stipulates and agrees that instances may occur in which portions of the Farm may receive effluent in excess of the quantities and at times detrimental to optimum growth and harvesting of crops. 6.02. Lessor shall have the sole right of control over each and every system of effluent application and/or irrigation located upon the Farm. Lessor reserves all rights in and to the Farm necessary to exercise whatever control it deems necessary, as it determines in its sole and absolute discretion, to effectuate such irrigation and effluent application activities. It is expressly agreed and understood that Lessor has the right to apply and/or irrigate effluent upon the Farm on such lands, at such times, and in such quantities, or to refuse to apply and/or irrigate such effluent upon the Farm, as it shall deem necessary, in its sole and absolute discretion. Lessee shall have no rights whatsoever regarding the effluent irrigation or application upon the Farm, including without limitation, the timing and amounts of irrigation or land application or the lands upon which irrigation or land application shall occur, if any, nor shall Lessee interfere, in any way, manner or form, with the land application or irrigation activities of Lessor. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 8 of 21 6.03. Lessor further reserves all rights it deems necessary, in its sole and absolute discretion, to enter and possess the Farm and take whatever actions are necessary to assure compliance with all federal, state or local statutes, laws, rules, regulations, and ordinances and permits, state or federal, related, in any way, manner or form, to the operation of the Farm or disposal of effluent and including without limitation, all effluent land application permit requirements. Such rights shall include, without limitation, the construction of berms and terraces on the Farm in whatever locations deemed advisable by Lessor, in its sole and absolute discretion. 6.04. LESSEE HEREBY RELEASES LESSOR, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS, FROM AND AGAINST ANY AND ALL LOSS, LIABILITY, COST, OR DAMAGE, OF ANY KIND OR NATURE, INCURRED, SUSTAINED, RELATED TO, OR AS A RESULT OF EFFLUENT APPLICATION AND/OR IRRIGATION UPON THE FARM OR THE LACK THEREOF, INCLUDING, WITHOUT LIMITATION, EFFLUENT APPLICATION BEYOND NORMAL CROP REQUIREMENTS OR BELOW NORMAL CROP REQUIREMENTS, AND INCLUDING THE COMPLETE CURTAILMENT OF SUCH APPLICATION AND/OR IRRIGATION, AND FURTHER INCLUDING, WITHOUT LIMITATION, ANY LOSS, LIABILITY, COST, OR DAMAGE RELATED TO THE SOLE, CONCURRENT AND/OR GROSS NEGLIGENCE, OF ANY KIND, TYPE, DEGREE OR NATURE, OF LESSOR, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR INDEPENDENT CONTRACTORS. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 9 of 21 i 6.05. Lessor shall maintain, to its satisfaction, all effluent application and/or irrigation facilities. Further, Lessor shall pay all utilities associated with said application and/or irrigation systems, and all electricity charges related to water -well pumping facilities and electric fence chargers regarding the cattle grazing activities of Lessee. ARTICLE VII RESPONSIBILITY OF LESSEE 7.01. Lessee shall graze all lands included in the Summer Grazing Program with a sufficient number of cattle, as directed by Lessor, to allow Lessor to maintain a proper water balance regarding optimum effluent disposal activities. Lessee hereby expressly agrees and stipulates that the number of cattle to be grazed in the Summer Grazing Program may increase or decrease within the term of this Agreement, as directed by Lessor, in its sole and absolute discretion. Lessee shall, within fifteen (15) days after written notice by Lessor, increase or decrease the number of cattle upon the lands included in the Summer Grazing Program, as directed in the notice. 7.02. Lessee shall construct and maintain temporary fences of such strength and quality to enclose cattle of ordinary demeanor within the lands included in the Summer Grazing Program. Lessor shall have the right to examine and approve fencing activities of Lessee. In the event Lessor shall not approve the construction of said fences, Lessee shall make such reparation and perform such construction activities as Lessor deems necessary, in its sole and absolute discretion, within ten (10) days of the notification of such insufficiencies by Lessor. Any and all temporary fencing constructed by Lessee shall remain the property of Lessee, subject to the terms set forth below. Lessee shall remove all of such temporary fencing on or before ten (10) days after the expiration or Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 10 of 21 termination of this Agreement. Any fencing that remains on the Farm after such ten (10) day period shall be the property of Lessor. 7.03. Lessee shall keep accurate day-to-day records of cattle movement including, without limitation, dates and numbers received, dates and numbers shipped, weights of cattle, as received and shipped, and death loss. LESSEE SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY RELEASES LESSOR, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS FROM AND AGAINST ANY AND ALL LOSS, LIABILITY, COST, OR DAMAGE, OF ANY KIND OR NATURE, INCURRED, SUSTAINED, RELATED TO, OR AS A RESULT OF THE OPERATION OF THE FARM, INCLUDING WITHOUT LIMITATION, THIS SICKNESS OR DEATH LOSS, FROM ANY CAUSE AND STRAYING CATTLE, AND FURTHER INCLUDING, WITHOUT LIMITATION, ANY LOSS, LIABILITY, COST OR DAMAGE RELATED TO THE SOLE, CONCURRENT AND/OR GROSS NEGLIGENCE, OF ANY KIND, TYPE, DEGREE OR NATURE, OF LESSOR, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR INDEPENDENT CONTRACTORS. 7.04. Lessee shall procure and carry, at its sole cost and expense through the life of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to Lessor, carried with an insurance company authorized to transact business in the State of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, whether performed by the Lessee, permitted subcontractor, assignee, sublessee or other third party. A Certificate of Insurance specifying each and all coverages and a true and correct copy of each of the policies required herein shall be Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 11 of 21 submitted to Lessor prior to execution of this Agreement. Further, Lessee shall provide to Lessor proof of the below -described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each such policy to require the insurer to (i) give notice to the Lessor, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liability Insurance. Lessee shall have Comprehensive General Liability Insurance with limits of $1,000,000 combined single limit in the aggregate and per occurrence. The Lessor shall be named as an additional insured in such policy. B. Comprehensive Automobile Liability Insurance. The Lessee shall have Comprehensive Automobile Liability Insurance, with limits of not less than bodily injury/ property damage $1,000,000 combined single limit, to include all owned and nonowned vehicles, including employer's nonownership liability hired and nonowned vehicles. The required Automobile Liability Insurance shall include coverage for environmentally related bodily injury and property damage. The Lessor shall be named as an additional insured in such policy C. Workers' Compensation and Employer's Liability Insurance. Worker's Compensation Insurance covering all employees whether employed by the Lessee or any permitted subcontractor with Employer's Liability of at least $1,000,000. The Lessee shall contractually require each person with whom it contracts to provide activities as contemplated by this Agreement to provide insurance coverage as set forth herein, and to provide to Lessee and Lessor, prior to such person performing any such activities, a Certificate of Coverage establishing such coverage. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 12 of 21 7.05. LESSEE SHALL INDEMNIFY AND HOLD LESSOR AND LESSOR'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND ALL INDEPENDENT CONTRACTORS HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES, AS A RESULT OF, ARISING FROM OR RELATED TO THE CONDUCT OR MANAGEMENT OF LESSEE'S BUSINESS, LESSEE'S USE OF THE FARM, OR ANY OTHER MATTER RELATED TO LESSEE'S OPERATIONS UNDER THIS AGREEMENT, OR FROM ANY ACT OR OMISSION OF ANY KIND OR TYPE BY LESSEE, LESSEE'S AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, GUESTS, OR INVITEES IN OR ABOUT THE FARM, AND INCLUDING ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSES CAUSED, IN WHOLE OR PART, BY THE SOLE, CONCURRENT AND/OR GROSS NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF LESSOR, LESSOR'S ELECTED OFFICIALS, AGENTS, OFFICERS, EMPLOYEES OR INDEPENDENT CONTRACTORS. IF ANY ACTUAL PROCEEDING IS BROUGHT AGAINST LESSOR AND/OR LESSOR'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND ALL INDEPENDENT CONTRACTORS ARISING FROM ANY OF THESE CIRCUMSTANCES, LESSEE FURTHER AGREES TO DEFEND THE ACTION OR PROCEEDING WITH LEGAL COUNSEL ACCEPTABLE TO LESSOR. 7.06. Lessee shall comply with all applicable state, federal and local laws, statutes, rules, regulations and ordinances. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 13 of 21 7.07. Lessee shall pay all taxes on the crops and livestock raised on the Farm and all of Lessee's property located on the Farm. 7.08. Lessee shall not make any alterations or additions to the Farm, excepting the fencing activities described in Section 7.02, without the prior written approval of Lessor. SO. 7.09. Lessee shall not hunt or fish on the Farm, or allow any other party to do 7.10. Lessee shall deliver to Lessor a financing statement perfecting the security interest granted above to Lessor and shall furnish all information requested by Lessor necessary for or related to the Notice of Security Interest in Farm Products to be provided to purchasers. 7.11. Lessee shall not allow any liens, other than that set forth herein, to be placed on the Farm, the Lessee's leasehold interest in the Farm, or any of the personal property of Lessee. ARTICLE VIII RESPONSIBILITY OF LESSOR 8.01. Lessor shall pay to Lessee one-third (1/3) of the cost of the fertilizer applied to the Farm and one-third (1/3) of the cost of all mechanical harvesting of the crops, including costs related to haying and stripping cotton, to the extent approved by Lessor, as set forth immediately below. Prior to conducting any fertilizer and or crop harvesting activities, Lessee shall notify Lessor of such proposed activities, including each of the types and times of the proposed activities to be performed, the type and amount of materials necessary, the cost of each of such materials, and the expected overall cost of such activities, to Lessor for approval, in its sole and absolute discretion. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 14 of 21 Lessor shall not be responsible for its share of any of the above costs unless and until the Lessee has notified Lessor of such proposed activities and Lessor shall have approved same. Notwithstanding anything to the contrary, the maximum amount Lessor shall be responsible for is one-third (1/3) of the estimated costs as set forth by Lessee in its notice to Lessor. ARTICLE IX EVENTS OF DEFAULT AND REMEDIES 9.01. In the event Lessee shall breach any term and/or provision of this Agreement, Lessor shall be entitled to exercise any right or remedy available to it either at law, equity, or contract, including without limitation, immediate termination of this Agreement, exercise of its rights under the UCC, assertion of actions for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any right or remedy and all rights and remedies shall be cumulative. Without limiting the above, Lessor may enter and take possession of the Farm and may lock out Lessee or any other person who may be grazing livestock upon the Farm, until the default is cured, without being liable for damages. In the event Lessor shall breach any term and/or provision of this Agreement, Lessee may, at its sole and exclusive remedy, terminate this Agreement. ARTICLE X MISCELLANEOUS 10.01. This Agreement shall not give rise to a partnership between the parties hereto. Neither party shall have the authority to bind the other without the other party's written consent. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 15 of 21 10.02. LESSOR AND LESSEE AGREE THAT THERE ARE NO WARRANTIES OF TITLE AND NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING UNDER THIS AGREEMENT. THE RIGHTS TO THE FARM, AS SET FORTH HEREIN, IS LEASED TO LESSEE AS IS, WHERE IS AND WITH ALL FAULTS. 10.03. Lessor reserves the right to hunt and fish and to permit third parties to hunt and fish upon the Farm. 10.04. The rights granted to Lessee herein are subordinate to any present or future oil, gas or mineral lease or other mineral exploration agreements. Lessor shall not be liable to Lessee for any damages attributable or related to the mineral agreements and Lessor shall receive all consideration paid for such damages. 10.05. Lessee represents and warrants to Lessor that the execution, delivery and performance of this Agreement and the activities contemplated hereby constitute legal, valid and binding obligations of Lessee and is enforceable in accordance with the terms hereof. 10.06. Lessee shall conduct all activities contemplated by this Agreement in a good, and farmerlike manner. If any of the activities of Lessee, or omissions of the activities required under this Agreement, shall cause, in whole or in part, liability on the part of Lessor, it shall be deemed that Lessee did not perform said activity (or omitted the performance of said activities) in a good and farmerlike manner. For the purposes herein, liability shall include, but shall not be limited to, any action resulting in monetary damage and/or penalty, administrative orders, consent or otherwise, issued by governmental Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 16 of 21 bodies having jurisdiction over such matters, including administrative orders imposing no monetary damage and/or penalty. 10.07. Whenever notice from Lessee to Lessor or from Lessor to Lessee is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (i) actual delivery of the written notice to the other parry by hand, ordinary postal delivery, telecopy or other reasonable means (in which case such notice shall be effective upon delivery); or (ii) by depositing the written notice in the United States Mail, postage prepaid, properly addressed to the other party at the address provided immediately below, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. Lessee's address and numbers for the purpose of notice are: Todd Lockaby P.O. Box 393 Tahoka, Texas 79373 phone # U facsimile # L� _ Lessor's address and numbers for the purpose of notice are: City of Lubbock Attn: Terry Ellerbrook P.O. Box 2000 Lubbock, Texas 79457-2000 Phone # (806) 775-2585 Facsimile # (806) 775-3027 Either party may change its address or numbers for purpose of notice by giving written notice to the other party, referring specifically to this Agreement, and setting forth Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 17 of 21 such new address or numbers. The address and numbers shall become effective on the thirtieth (30th) day after such notice is effective. 10.08. This Agreement, including Exhibit "A" attached hereto, contain the entire Agreement between the Lessor and Lessee, and there are no other written or oral promises, conditions, warranties or representations relating to or affecting the matters contemplated herein. 10.09. No amendment, modification or alteration of the terms of this Agreement shall be binding unless the amendment, modification or alteration is in writing, dated subsequent to the date of this Agreement and duly executed by the Lessee and Lessor. 10.10. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES STIPULATE THAT THIS AGREEMENT IS PERFORMABLE, IN PART, IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS IN THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS CONTEMPLATED HEREBY. 10.11. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 18 of 21 10.12. Lessee shall not utilize the Farm in any way, manner, or form, other than that as expressly set forth in this Agreement. 10.13. If Lessee receives any payments from any governmental agency because of growing or not growing crops on the Farm or any other matter related to its operation of the Farm then the payment shall be divided between Lessee and Lessor in the same proportion as set out in Section 3.01. 10.14. Lessee shall have no use of surface or groundwater, except through the wells provided by Lessor to Lessee, as designated by Lessor, solely for livestock watering purposes. Lessor shall have all rights regarding all surface water and groundwater, including without limitation, the right to pump water from the wells or surface waters on the Farm and to lay or place pipelines across the Farm transporting said water to other lands. 10.15. No failure to exercise, and no delay in exercising, on the part of Lessor, of any right hereunder shall operate as a waiver thereof, or of any other right hereunder, nor shall any single or partial exercise thereof preclude any other further exercise thereof or exercise of any other right. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 19 of 21 10.16. Hazardous Substances (herein so called), as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.S. §9601(14)) shall not (i) be utilized, in any way, manner or form, in the operation of the Farm; or (ii) be brought upon, placed, or located, by any party, on the Farm, without the written consent of the Lessor. If Lessee believes that the utilization of a Hazardous Substance is necessary in the operation of the Farm, or that it is necessary to place and/or otherwise locate upon the Farm, a Hazardous Substance, Lessee shall notify the Lessor and request consent therefrom, at least twenty (20) days prior to such action. Lessor may grant or deny the request of Lessee and provide whatever requirements such consent, if granted, is conditioned upon, in its sole and absolute discretion. If the request of Lessee is not granted, or otherwise not responded to, by Lessor within five (5) days of the receipt of said request, said request shall be deemed to be denied. In the event Lessor shall consent to the request of Lessee, Lessee shall be responsible for ensuring that all personnel involved in the operation of the Farm are (i) trained for the level of expertise required for proper performance of the actions contemplated by the Agreement and, in particular, in all aspects of handling, storage, disposal and exposure of Hazardous Substances; and (ii) are provided and utilize all protective gear or equipment necessary to provide protection from exposure to Hazardous Substances. 10.17. In the event either party shall breach this Agreement and an attorney is utilized in the enforcement hereof, the defaulting party shall pay to the prevailing party all costs incurred and reasonable attorneys' fees, including all costs of appeal. Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 20 of 21 EXECUTED this 12'h day of August, 1999, but effective for all purposes as of January 14, 1999. LESSOR: ATTEST: LAIR a Darnell, City Secretary APPROVED AS TO CONTENT: Terry EllerbtAk Managing Director Water Utilities APPROVED AS TO FORM: Richard K. Casner Natural Resources Attorney RKC:cp Cityatt/Richard/FarmLease.LockabyTodd2 July 15, 1999 LESSEE: i rrrM Grazing and Crop Agreement City of Lubbock/Todd Lockaby Page 21 of 21 EXHIBIT "A" Ge Lands comprising the Farm Page A-1 PERIHLT6R BURYlrY or A 3030.0 ACRE TRACT IN LEAGUE' 1, 2 % ! 4 OF THE ■ILSON COUNTY SCHOOL LAND, LYNN COUNTY, TEXAS. 2M A Pq or M" & 41=05 elaalWwll Kx 0 w" Am rhea �wK d summ1e 600AM. . �.r+rr wwr•�w�■ rrl..l�r�■ R{wr Rlr.w rlwr \\ - + •• — _ _ ' IF MAW %ia�L iuw MCI 1 II • 1 1 1 i J Iva $ 7RT 1 WYr 1"vim 1w�p 1 a M A w 7 ILrww awlnwl arrow II aw ri us arlhR I t • � II 1 • I r I Wrei 4 "M a awln/w tON WIICT I WW tic1 ii a r M mi � I fe II 1 +lwNy L_ _J � I II 1 I � • "Va It ))) "111f a TRAM 7 I TAr7 4 IYfl i � WIT RMMr IN nw 1 RaalNa R�nM rWnlw - I I I I 11 i w r— f 1 -I I+ >r s! nrcT a f_ Rai ir'� a rl tet wJla [ R i7w T R Rww! Mild . 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II II TpAcr .1 i II WFWVEh=r BURVBY or A M&O ACIM TRACT IN LEAGUIM 1,43, & 4 OF TkM WSON COUNTY 9CIMOL LAn LYNN COUNTY TZrAIL RAY 4 OF A LM ik Out ,.Ix A x x x Page A-3 Mumms IML w ML ffimdm mu fjvof cum PW PON"L NECTIDN a BLOC[ M T1Owvzbcgw film Y QT A MW.O ACRI TRACT DI LLAGUIM 1,2.0 i 4 Or THE WRAON COUNTY SCHOOL LAIN ~ LYNN COUTRT, Tl= i Rr�ar� M Growpa' E 31+1#4' cum i i i f � 1 i M `' is � TIUCT 2 b / x I / / , S / aroi• r nw.23, r i, ~ 71UCT S w rrs�'a2• E 2sn.TT' Twcr a b� , ------------- - jaw -----.---- i 1 II t �I� I lyyyyyy I� 1 cum FRO I' I I I I v 1' I TTUCT 1 I Ifi I I1 I' II I II `I fI S I 1 I 1 I f 1 I\ A ' NNW wows ,•_Aw .r+.do wua Page A-2