HomeMy WebLinkAboutResolution - 2012-R0113 - Contract - Gary Mcdaniel - Cattle Grazing - 03_29_2012Resolution No. 2012—RO113
March 29, 2012
Item No. 5.9
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, Contract No. 10289 for cattle grazing at
Lake Alan Henry wildlife mitigation area, by and between the City of Lubbock and Gary
McDaniel of Southland, Texas, and related documents. Said Contract is attached hereto
and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council on
March 29, 2012
TOM 4ARTIN, MAYOR
ATTEST:
Reb ca Garza, City Secretarykj
APPROVED AS TO CONTENT:
Reed, P.E., Chief OperAting Officer
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vwxcdocs/RES.Contract-Gary McDaniel
February 28, 2012
Resolution No. 2012—RO113
CONTRACT NO. 10289
CITY OF LUBBOCK, TX
AGREEMENT FOR CATTLE GRAZING RIGHTS
AT LAKE ALAN HENRY WILDLIFE MITIGATION AREA
This agreement is made this 291h day of March, 2012, by and between Gary McDaniel (the `Contractor'), whose
mailing address is 451 U.S. Highway 84, Southland, Texas 79364, and the City of Lubbock, a Texas Home Rule Municipal
Corporation (`City'), 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, and subject to the terms,
provisions and limitations set forth herein, City grants to Contractor the right to graze cattle upon the surface estate
only of a portion of the Lake Alan Henry Wildlife Mitigation Area (the "Premises"), located in Garza and Kent
County, Texas, as more particularly described on Exhibit "A", attached hereto and made a part hereof for all intents
and purposes. It is expressly agreed, stipulated and understood that this Agreement does not grant any rights, of any
kind or nature„ in any real property owned by the City.
1.02 In the event that additional lands become available at the Lake Alan Henry Wildlife Mitigation Area, the City shall
offer the rights to graze such additional lands to Contractor upon the identical terms hereof, and this Agreement shall
be amended to include such additional lands. If Contractor shall decline such offer, the City may award the right to
graze to any other party on the terms deemed most advantageous by the City.
1.03 It is expressly agreed and understood that the rights granted herein are expressly limited to the grazing of beef type
cattle (i.e., no dairy or dairy type cattle, sheep, goats or other livestock of any kind), as set forth in this Agreement.
All other uses of the Premises by Contractor are expressly prohibited and City reserves the rights to all other such
uses.
ARTICLE II
AGREEMENT TERM
2.01 The term of this Agreement shall be for five (5) years, from the date of execution hereof by the City (the "Initial
Term"), unless terminated earlier pursuant to the terms hereof.
2.02 The City is granted an option to renew this Agreement upon the terms and conditions set forth herein, for five (5)
additional one (1) year terms (the "Option Term"), by providing notice to Contractor, on or before thirty (30) days
prior to the expiration of the Initial Term.
2.03 This Agreement shall terminate without further notice, unless terminated earlier pursuant to the terms hereof, when
the Initial Term, if the option has not been exercised, or the Option Term, if timely exercised, as specified in this
Article II expires. Contractor shall immediately vacate the Premises upon the expiration or termination of this
Agreement. Any holding over by Contractor shall not constitute a renewal of this Agreement nor give Contractor any
rights under this Agreement or to the Premises.
ARTICLE III
GRAZING FEES
3,01 During the term of this Agreement, Contractor shall pay to City $8.00 per Animal Unit per month, (each dry cow,
bull, cow/nursing calf pair and/or weaned calf are deemed to be an "Animal Unit" for the purposes of this Agreement)
for grazing, payable on or before the tenth (10`h) day of each following month at the office of the City at 1625 13"'
Street, Lubbock, TX 79401. Attn: Accounting Department. The check or payment shall include the reference to this
Agreement thereon. On the last day of each month and at the final removal of the cattle from the Premises, the cattle
will be counted by the Contractor, and such account shall be the basis of payment by the Contractor to the period since
the last counting and payment. Without regard to the periodic counting provided in this paragraph, payment shall be
due for any cattle removed from the Premises during the term of this Agreement, at the time of such removal.
Statements shall be submitted by Contractor to the City along with, and reflecting, payments due from the Contractor
to the City for each monthly period. Notwithstanding anything to the contrary herein, ail amounts due the City under
this Agreement must be paid prior to the removal of any cattle from the Premises by Contractor.
ARTICLE IV
CITY'S RESERVED RIGHTS
4.01 As set forth in Section 1..02, all uses of the Premises, other than the grazing of beef type cattle as prescribed herein by
Contractor, are hereby expressly reserved to the City. Without limiting the generality of the foregoing, the City
hereby specifically reserves the following rights:
a. The City shall have access at any and all times, to any or all of the Premises. The City may conduct any
and all types of work, study, maintenance, research or any other activity of any kind upon the Premises,
as may be deemed necessary or desirable by the City during the term of this Agreement.
b. The City may allow public access to the Premises for hunting and non -hunting activities (or, i.e., hiking,
photography, studies, bird watching and similar activities) at any time deemed necessary or desirable by
City. It is noted that all parties having access to the Premises are required by the City to have in their
possession at all times written permits issued by the City.
c. The City may conduct prescribed burns and other vegetation control methods, including the application
of herbicides or pesticides, on all or any portion of the Premises. Although it is the City's intention that
the described activities will not reduce the acreage of the Premises available to Contractor, such may
occur, and the adjustment of livestock, as provided in Section 5.01, below, should be anticipated.
d. The City may prepare and plant supplemental wildlife food plots (the "Plots") on 29 acres, more or less,
as depicted on Exhibit "A". Unless the City shall fence the Plots with an enclosure capable of turning
livestock of ordinary demeanor, Contractor may utilize the Plots for grazing purposes. Nothing
contained herein shall be construed to require the City to plant the Plots in any crop and the City makes
no representation, assurance or warranty regarding the availability, quantity, quality, digestibility, or
type of vegetation or crop planted on the Plots at any time.
4.02 When any rights are granted to the "City" in this Article IV, such term shall be construed to include its agents,
employees, representatives, invitees and independent contractors.
ARTICLE V
GRAZING OF PREMISES
5.01 Contractor expressly recognizes and stipulates that the grazing of the Premises will be under a strict management
regime by the City. The management practices upon the Premises are expected to be dynamic in nature, and as such,
it is anticipated that grazing management practices may be altered during the term of this Agreement. It is anticipated
at this point in time that the City intends to operate a rotational grazing program, as roughly depicted in Exhibit "A",
attached hereto and made a part hereof. As a result, it is hereby expressly understood and stipulated by Contractor
that only a portion of the Premises, as dictated by City, shall be available for grazing by Contractor at any specific
time. THE CITY SHALL HAVE THE RIGHT TO DICTATE (i) THE NUMBER OF CATTLE GRAZED UPON
THE PREMISES; (ii) THE TIMES AT WHICH THE CATTLE GRAZE UPON THE PREMISES, OR ANY PART
THEREOF; (iii) THE AREAS OF THE PREMISES GRAZED BY CONTRACTOR'S CATTLE; AND (iv) ANY
AND ALL OTHER ASPECTS OF THE MANAGEMENT OF THE PREMISES AND THE GRAZING OF THE
PREMISES THAT THE CITY SHALL DEEM NECESSARY OR ADVISABLE, IN ITS SOLE AND ABSOLUTE
DISCRETION.
5.02 Grazing periods for each pasture of the Premises may change at any time, as dictated by the City, at grazing intervals
to allow each pasture to continue a continual pattern of vegetative growth, removal by grazing and regrowth,
throughout the year, and will be based upon, among other factors, rainfall received, growth rate of plants, size of
pastures, water availability and management objectives of the City.
5.03 Contractor shall move the cattle upon the Premises as dictated by the City on or before seventy-two (72) hours after
receipt of notice to Contractor by City. Contractor stipulates that the riparian areas of the Premises are sensitive areas
and that in addition to the general rights of the City to require moving, addition to and removal of cattle, the City may
require enhanced movement of cattle in Pasture 4 and Pasture 5. Although the number of cattle is likely to change
during the term of this Agreement, and is as to be dictated by the City, as set forth herein, the anticipated initial
stocking rate of the Premises is thirty-eight (38) animal units.
5.04 Contractor has made an independent inspection and evaluation of the Premises and acknowledges that the Contractor
has made no statements or representations concerning the present or future value of the grazing rights granted herein,
the condition or carrying capacity of the Premises, or the anticipated income, costs, or profits, if any, to be derived
from the Premises. FURTHERMORE, CONTRACTOR MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS
TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PREMISES, INCLUDING WITHOUT LIMITATION, THE QUALITY AND AVAILABILITY OF WATER FOR
LIVESTOCK, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PREMISES. Contractor
further acknowledges that, in entering into this Agreement, it has relied solely upon its independent evaluation and
examination of the Premises and the independent estimates, computations, evaluations and studies based thereon.
City makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished
to Contractor, if any, whether furnished by City or any third party. City, its officers, employees, elected officials and
agents assume no liability for the accuracy, completeness or usefulness of the material furnished by the City, or any of
its officers, employees, elected officials, and/or agents, if any, and/or any third party. Reliance on material so
furnished shall not give rise to any cause, claim or action against the City, its officers, employees, elected officials
and/or agents, and any such reliance shall be at Contractor's sole risk.
5.05 THE GRANT OF THE GRAZING RIGHTS ON THE PREMISES, AS SET FORTH HEREIN, SHALL BE ON A
"WHERE IS", "AS IS" AND "WITH ALL FAULTS -'BASIS AND SHALL BE WITHOUT REPRESENTATION
OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT
LIMITATION, AS TO THE DESCRIPTION, PHYSICAL CONDITION OF THE PREMISES, QUALITY, VALUE,
FITNESS FOR PURPOSE, MERCHANTABILITY, OTHERWISE. Contractor has satisfied itself, prior to entering
into this Agreement, as to the type, condition, quality and extent to the Premises and the usefulness of the Premises for
grazing of cattle as set forth herein.
5.06 Contractor may move cattle upon the Premises during the day light hours of any day of the term hereof by use of
horses and or four wheeler or other all terrain vehicles. In the event Contractor desires to move cattle by aerial
method, such as a helicopter or fixed wing aircraft, Contractor shall provide a minimum of fifteen (15) days advance
written notice to the City.
ARTICLE VI
RESPONSIBILITY OF CONTRACTOR
6.01 Contractor shall graze the applicable portion of the Premises, in the manner, location and with the number of cattle, as
directed by City, to follow the grazing management practices described in Article V, above. CONTRACTOR
HEREBY EXPRESSLY AGREES AND STIPULATES THAT THE NUMBER OF CATTLE TO BE GRAZED
UPON THE PREMISES MAY INCREASE OR DECREASE (TO AS LITTLE AS NONE) WITHIN THE TERM OF
THIS AGREEMENT, AS DIRECTED BY CITY, IN ITS SOLE AND ABSOLUTE DISCRETION. Contractor shall,
within thirty (30) days after written notice by City. increase or decrease the number of cattle upon the Premises, as
directed in the notice.
6.02 The Contractor shall provide all necessary labor, medication, salt, mineral, feed and services necessary for the care of
the cattle grazed upon the Premises, and City shall have no responsibility for the care of the cattle whatsoever. The
location of areas wherein salt, mineral and supplemental feeds are provided shall be located so as to avoid sources of
water and to enhance proper livestock distribution, to protect against over and under grazing and to ensure proper
grazing animal impact on the Premises, and both surface water and ground water, as stipulated by the City in its
discretion. Contractor shall provide a log to City as to the amount and type of supplement furnished to the cattle, if so
requested by the City, and shall certify that, or provide certification of all feeds being utilized on the Premises as being
free of any contaminants, including without limitation, aflatoxin.
6.03 Cattle stocked upon the Premises shall have tested negative for brucellosis prior to introduction to the Premises or
must be derived from a brucellosis -free herd, and certified as such by Contractor. All cattle shall be maintained on the
pastures of the Premises as dictated by City, as provided herein. Recovery and return of lost, escaped, estrayed or
stolen livestock shall be the sole responsibility of Contractor. In the event livestock have strayed from the Premises
onto lands owned by the City, other than the Premises, Contractor shall obtain permission from City prior to searching
for such lost livestock. All cattle placed on the Premises by Contractor shall be marked and/or branded so that they
are identifiable both on a herd and individual basis.
6.04 Contractor shall notify City as soon as reasonably practicable of any health issues arising in Contractor's herd on the
Premises and shall report same to the City, along with a report of the apparent cause of death, if applicable. In the
event of any disease or other cause of quarantine dictated by any governmental entity with jurisdiction over such
matters, all livestock upon the Premises will be handled as directed by such entity.
6.05 Contractor shall notify City at least twenty-four (24) hours prior to the confining of livestock, or working the livestock
relating to weaning, worming, inoculation, inspection, spraying or any other related activities.
6.06 Contractor may erect temporary pens, sheds, storage buildings, or other livestock enclosure facilities with the written
consent of the City, said consent not to be unreasonably withheld. Notwithstanding the right to construct such
temporary improvements, the City may require Contractor to disassemble and/or relocate any or all of these structures
at any time during the term of this Agreement. Contractor shall be prohibited from placing any obstruction, such as a
pipe barrier or gate, in the cattle guards located, or to be located in the future, on the Premises.
6,07 Contractor shall perform all maintenance, repair, replacement and general upkeep of the Premises and improvements
located thereon and shall pay all costs related to the performance thereof, including without limitation, all costs of
labor and materials. Without limiting the generality of the foregoing, said improvements shall include: water wells,
whether through solar powered pump, electrical submersible pump or windmill, fences, pens, gates and cattle guards.
All of such maintenance activities shall be performed in a good and workmanlike manner, and all materials utilized in
such maintenance activities shall be of high quality. Fencing shall be maintained so as to turn and enclose cattle as
required by this Agreement. Fencing shall include boundary, perimeter and cross fencing of all types and construction
and including panel gates, wire gates, barbed wire fencing, working pens, chutes, corrals, water gaps and cattle
guards, whether existing at the inception of this Agreement or constructed during the term of this Agreement.
Contractor shall maintain a daily log of all repairs and maintenance performed and furnish said log to the City. The
log shall specifically include information relating to the repair or maintenance of the improvements including the date
thereof, the location of the improvement, the type of the improvement, the type of work performed, the materials
expended and approximate cost thereof.
6.08 Contractor shall conduct its operations on the Premises so as to not damage, or allow the damage, of any property of
the City. Any property of the City that is damaged by the action, inaction or operation of Contractor on the Premises
shall be repaired or replaced by Contractor to the satisfaction of the City, at its sole discretion, at Contractor's
expense. The City may, but shall not be required to, replace or repair such Property and the Contractor shall pay to
City all of such costs incurred by City, including without limitation, labor performed by the City.
6.09 Contractor shall remove any and all litter or debris from the Premises and no such litter or debris shall be stored or
disposed of on the Premises whatsoever.
6.10 Any and all travel upon the Premises of motorized vehicles of any kind or type shall occur solely upon roads located
on the Premises as designated by City.
6.11 Contractor shall not utilize, place, store or apply any chemicals of any kind or type, including herbicides, pesticides
and/or poisons of any type, on the Premises without the consent of City, said consent to be at the sole discretion of
City. Further, Contractor shall not remove from the Premises any plant material, rock, animal life, artifact, and shall
not dig, excavate or remove any soil or subsurface soil or mineral deposits of any kind or type from the Premises.
6.12 Contractor shall not store, park, place or operate upon the Premises any equipment or materials not utilized or to be
utilized by Contractor in the management of the cattle located upon the Premises.
6.13 Notwithstanding the fact that this Agreement provides no right of any kind to hunt or fish upon the Premises,
Contractor shall be permitted to harvest, kill and/or remove feral hogs from the Premises. No carcasses or part of any
hog taken, killed or harvested may be disposed of or left to remain on the Premises within twenty-five (25) feet of any
roadway, gate or Plot on the Premises.
6.14 Contractor shall not camp or otherwise reside, either on a permanent or temporary basis, upon the Premises. Further,
Contractor shall have no access or the right to utilize, in any way or form, any electric utilities, buildings, equipment
or materials of the City except as otherwise provided herein or by consent of the City, said consent to be at the sole
discretion of the City.
6.15 CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY RELEASES CITY, 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 ACTIVITIES CONTEMPLATED BY
THIS AGREEMENT OR CONTRACTOR'S OCCUPATION OF THE PREMISES OR OTHER CITY OWNED
LANDS, INCLUDING WITHOUT LIMITATION, 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 CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS,
EMPLOYEES OR INDEPENDENT CONTRACTORS.
6.16 Contractor shall procure and carry, at its/his/her sole cost and expense through the life of this Agreement, insurance
protection as hereinafter specified, in form and substance satisfactory to City, 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 Contractor, employee of Contractor 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 submitted to City prior to execution of this Agreement. Further, Contractor shall provide to City 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 City, 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.
Comprehensive General Liability Insurance. Contractor shall have Comprehensive General Liability
Insurance with limits of $200,000 combined single limit in the aggregate and per occurrence. This may
be in the form of a farm or ranch liability policy.
b. Comprehensive Automobile Liability Insurance. The Contractor shall have Comprehensive Automobile
Liability Insurance, with limits of not less than $200,000 combined single limit for any auto.
c. Worker's Compensation. The Contractor shall elect to obtain worker's compensation coverage pursuant
to Section 406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage
throughout the term of this Contract and shall comply with all provisions of Title 5 of the Texas Labor
Code to ensure that the Contractor maintains said coverage. Any termination of worker's compensation
insurance coverage by Contractor or any cancellation or non -renewal of worker's compensation
insurance coverage for the Contractor shall be a material breach of this Agreement.
e. Contractor shall obtain, in lieu of Worker's Compensation, Employer's Liability and/or Occupational
Medical and Disability in the amount of $500,000 during the term of this Contract.
f. The City of Lubbock shall be named as primary additional insured on Auto/General Liability, to include
products of completed operations endorsement, with a Waiver of Subrogation in favor of the City of
Lubbock on all coverages.
6.17 CONTRACTOR SHALL INDEMNIFY AND HOLD CITY AND CITY'S ELECTED OFFICIALS, OFFICERS,
AGENTS, EMPLOYEES, INVITEES, LICENSEES AND 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 CONTRACTOR'S USE OR OCCUPATION
OF THE PREMISES OR OTHER CITY OWNED LANDS, OR ANY OTHER MATTER RELATED TO
CONTRACTOR'S OPERATIONS UNDER THIS AGREEMENT, OR FROM ANY ACT OR OMISSION OF ANY
KIND OR TYPE BY CONTRACTOR„ CONTRACTOR'S AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, GUESTS, OR INVITEES IN OR ABOUT THE PREMISES OR OTHER CITY OWNED
LANDS, 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 CITY, CITY'S ELECTED OFFICIALS, AGENTS, OFFICERS, EMPLOYEES,
INVITEES, LICENSEES OR INDEPENDENT CONTRACTORS. IF ANY LEGAL OR ADMINISTRATIVE
ACTION OR PROCEEDING IS BROUGHT AGAINST CITY AND/OR CITY'S ELECTED OFFICIALS,
OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS ARISING FROM ANY OF THESE
CIRCUMSTANCES, CONTRACTOR FURTHER AGREES TO DEFEND THE ACTION OR PROCEEDING
WITH LEGAL COUNSEL ACCEPTABLE TO CITY,
6.18 Contractor shall comply with all applicable state, federal and local laws, statutes, rules, regulations and ordinances.
6.19 Contractor shall pay all taxes, if any, on the livestock grazed on the Premises,
ARTICLE VII
TERMINATION
7.01. In the event the City determines that grazing of cattle on the Premises is no longer feasible or advisable, in its sole and
absolute discretion, or otherwise desires to terminate this Agreement for any reason, then the City may, by giving
ninety (90) days prior notice to Contractor, terminate this Agreement.
7.02 If the Contractor desires, for any reason, to terminate this Agreement, the Contractor may, by giving ninety (90) days
prior notice to the City, terminate this Agreement.
7.03 Contractor shall have until the termination of this Agreement, as set forth in this Article VII, or expiration of this
Agreement if not terminated earlier, to remove all cattle and any property or improvements owned by Contractor from
the Premises. In the event Contractor does not so remove its property within the time period prescribed herein, City
may remove such property remaining on the Premises and dispose of same in the manner and on the terms its deems
fit, and Contractor hereby waives and releases the City from any claims it may have regarding such removal and
disposition. Additionally, Contractor shall be responsible to City for any and all costs incurred by City in the removal
and disposition activities. In the event the City shall so desire, City may retain all or a part of Contractor's property
remaining on the Premises at the termination of this Agreement as its own Property, without liability of any kind or
nature to Contractor for same.
7.04 Nothing contained in this Article VII shall relieve the responsibility of Contractor to make all payments due and
owing to City.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 In the event Contractor shall breach any term and/or provision of this Agreement, City shall be entitled to exercise any
right or remedy available to it at law, equity, or contract, including without limitation, immediate termination of this
Agreement, assertion of actions for damages and/or injunctive relief. Without limiting the above, City may, in the
case of the default of non-payment for cattle being removed from the Premises, prevent Contractor from removing
cattle from the Premises, until the default is cured, without being liable to Contractor in any way, manner or form.
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. In the event City shall breach any term and/or provision of this
Agreement, Contractor may, as its sole and exclusive remedy, terminate this Agreement.
8.02 Contractor herein expressly stipulates and agrees that City possesses a statutory lien upon the cattle left for grazing for
the amount of charges for such grazing.
ARTICLE IX
ACCESS AND OCCUPATION OF PREMISES
9.01 Contractor shall not have access to, and shall not enter, the Premises between the hours of (i) one (1) hour before
sunrise and 10:00 a.m.; and (ii) 4:00 p.m. and one (1) hour after sunset, during any youth rifle hunt, archery hunt and
rifle deer hunt weekends and turkey rifle hunt weekends, on, among other lands, the Premises. Contractor shall be
provided the dates by City for subsequent year hunting dates on or before September I` of each year of this
Agreement. In the event Contractor is in need, due to unforeseen emergency conditions, to enter the Premises during
the hours and dates described above, it shall immediately contact the City to discuss potential access arrangements.
However, nothing contained in herein shall be construed to require the City to allow access to Contractor to the
Premises during these times.
ARTICLE X
MISCELLANEOUS
10.01 This Agreement shall not give rise to a partnership, joint venture or joint enterprise between the parties hereto.
Neither party shall have the authority to bind the other without the other party's written consent.
10.02 The rights granted to Contractor herein are subordinate to any present or future oil, gas or mineral lease or other
mineral exploration agreements. City shall not be liable to Contractor for any damages attributable or related to any
such mineral agreements and City shall receive all consideration paid for such damages.
10.03 Contractor represents and warrants to City that the execution, delivery and performance of this Agreement and the
activities contemplated hereby constitute legal, valid and binding obligations of Contractor and that this Agreement is
enforceable in accordance with the terms hereof.
10.04 Contractor shall conduct all activities contemplated by this Agreement in a good and farmer -like manner. If any of
the activities of Contractor, or omissions of the activities required under this Agreement, shall cause, in whole or in
part, liability on the part of City, it shall be deemed that Contractor did not perform in a good and farmer -like 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 bodies having jurisdiction over
such matters, including administrative orders imposing no monetary damage and/or penalty.
10.05 Whenever notice from Contractor to City or from City to Contractor 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 party by hand or telecopy (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 (P) business day after such notice is so deposited.
Contractor's address and numbers for the purpose of notice are:
Gary McDaniel
Address 451 U.S. Highway 84
City/State/Zip Southland, Texas 79364
Phone No. 806-893-1645
Facsimile No. 806-996-5572
With copy to:
Attn: Clint McDaniel
Address 451 U.S. Highway 84
City/State/Zip Southland, Texas 79364
Phone No. 806-893-1732
Facsimile No. 806-996-5572
City's address and numbers for the purpose of notice are:
City of Lubbock
Attn: Marsha Reed, P.E.. Chief Operating Officer
P.O. Box 2000
Lubbock, Texas 79457-2000
Phone # (806) 775-2335
Facsimile # (806) 775-2686
with copy to:
City of Lubbock
Attn: Diane Selby, Lake Alan Henry Project Coordinator
P.O. Box 2000
Lubbock, Texas 79457-2000
Phone # (806) 775-2602
Facsimile # (806) 775-2686
10.06 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 such new address or numbers. The address and numbers
shall become effective on the thirtieth (30'') day after such notice is effective.
10.07 This Agreement contains the entire Agreement between the City and Contractor, and there are no other written or oral
promises, conditions, warranties or representations relating to or affecting the matters contemplated herein.
10.08 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
Contractor and City.
10.09 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, AT
LEAST 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.
10.10 If any provision, or portion of 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, the remainder of
such provision 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.
10.11 Contractor shall not utilize the Premises in any way, manner, or form, other than that as expressly set forth in this
Agreement.
10.12 This Agreement may not be assigned by Contractor.
10.13 Contractor shall have no use of surface water or groundwater, except for livestock watering purposes.
10.14 No failure to exercise, and no delay in exercising, on the part of City, 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.
10.15 Hazardous Substances (herein so called), as defined in the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C.S. §9601(14)), or materials containing Hazardous Substances, shall not (i) be utilized, in
any way, manner or form, in the operation of the Premises; or (ii) be brought upon, placed, or located, by any party,
on the Premises, without the written consent of the City. If Contractor believes that the utilization of a Hazardous
Substance is necessary in the grazing operation of the Premises, or that it is necessary to place and/or otherwise locate
upon the Premises, a Hazardous Substance, Contractor shall notify the City and request consent there from, at least
twenty (20) days prior to such action. City may grant or deny the request of Contractor and provide whatever
requirements such consent, if granted, is conditioned upon, in its sole and absolute discretion. If the request of
Contractor is not granted, or otherwise not responded to, by City within five (5) days of the receipt of said request,
said request shall be deemed to be denied.
10.16 In the event either party shall breach this Agreement, the defaulting party shall pay to the prevailing party all costs
incurred by it, including without limitation, reasonable attorneys' fees, and including all costs of appeal.
10.17 Any actions that are to be or may be exercised or taken by the City herein are hereby delegated by the City Council of
the City of Lubbock to the City Manager or his/her designee.
10.18 The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise,
including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further,
the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy.
The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of
any conflict between this provision and another provision in, or related to, this document, this provision shall control.
Effective for all purposes as of this &h day of March, 2012.
CITY OF LUBBOCK:
Tom M Mayor �—
ATTEST:
I �L , I —Sc
Rebe a Garza, City Secretary
APPROVED AS TO CON T ENT:
MOLLa a P t-), J
Marsha Reed, P.E., Chief Operations Officer
l
ne Selby, Lake Alan Henry
Project Coordinator
APPROV AS TO FO
Assistant City Attorney
CONTRACTOR:
BY
Authorized resentative's��jj gnature
G A,eY Hr-.:;J'40 fit; 6
Print Name
�tsf 4. s. N w r gY
Address
�-W. 7936Y
City, State, and Zip Code