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HomeMy WebLinkAboutResolution - 2002-R0392 - Agreement To Relocate Prairie Dogs - 09/26/2002Resolution No. 2002-R0392 September 26, 2002 Item No. 25 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Manager of the City of Lubbock, BE and is hereby authorized and directed to execute, from time to time, on behalf of the City of Lubbock an Agreement related to the capture and/or relocation of prairie dogs from the Lubbock Land Application Site in the form of the Agreement attached hereto as Exhibit "A". The form 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. The City Council of the City of Lubbock further resolves that the City Manager may delegate said authority to any person or persons as the City Manager deems advisable. The authority of the City Manager, and/or the delegee of the City Manager, shall expire two (2) years after the date of passage by the City Council. Passed by the City Council this 26th ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Director of Public Works i nnison Environmental Compliance Manager day of _9PntPmhPr APPROVED AS FORM: Richard K. Casner Natural Resources Attorney Ke/l/ccdocs/PrairiedogAgrmt. Res September IS, 2002 Resolution No. 2002-RO392 Exhibit "A" AGREEMENT This AGREEMENT, dated , 2002, is by and between , (referred to herein as "Captor"), and the City of Lubbock, a Texas home -rule municipal corporation ("the City"). WHEREAS, the City owns and operates an effluent land application site (the "LLAS") located in Lubbock County, Texas, containing numerous C nomys ludovicianus, commonly known as black -tailed prairie dogs ("Prairie Dogs"); WHEREAS, it is necessary that the City control the Prairie Dogs on the LLAS to effectively, efficiently, and agronomically operate the LLAS and to comply with all rules, laws, statutes, and regulations of the State of Texas, including without limitation, the rules and regulations of the United States Fish and Wildlife Service, the Texas Natural Resource Conservation Commission ("TNRCC"), and the Texas Parks and Wildlife Department; WHEREAS, Captor desires to enter upon the LLAS, or a portion thereof, and remove Prairie Dogs therefrom; WHEREAS, the City is amenable to Captor performing such activity, under the terms, conditions, and limitations as set forth herein. NOW, THEREFORE, Captor and the City agree as follows: 1. Captor may enter upon a portion of LLAS (the "Occupied Lands"), as designated by John Hindman, Farm Manager of the LLAS, or successor, in his sole and absolute discretion, at the time or times and for the durations so specified. A description of the Occupied Lands and times permitted for occupancy by the Captor are described on Exhibit "A", attached hereto. Any other occupation or use of the Occupied Lands, the LLAS, or any other lands of the City, by Captor is expressly prohibited. In the event Captor enters upon or occupies any lands of the City other than the Occupied Lands or enters or occupies the Occupied Lands during times other than that designated by the Farm Manager, Captor shall be deemed a trespasser upon such lands and shall be liable to the City for such action and shall be criminally responsible for same, to the extent provided by the laws, statutes, rules and/or regulations of the State of Texas regarding same. 2. Captor represents and warrants to the City that he/she has located real property to relocate any and all Prairie Dogs captured on the Occupied Lands pursuant to the terms hereof, and has secured the consent of the landowners to release the captured Prairie Dogs on said real property. Captor shall, in no event, release any Prairie Dogs upon any lands of the City or any lands in which he/she has not obtained such written authorization. Prior to entering upon the Occupied Lands, Captor shall provide the express written authorization of the subject landowners to the Farm Manager authorizing the Captor to release any Prairie Dogs upon lands owned by them. 3. Captor shall collect Prairie Dogs only, and shall do so in a humane and lawful manner. Immediately after removal of Prairie Dogs from the burrows or small groups of burrows, Captor shall physically and completely block the burrow openings with plugs of soil provided to Captor by the City. Captor shall Prairie Dog Agreement Page 2 of 7 comply with all rules, laws, statutes and regulations governing or affecting any activity contemplated by this Agreement. Captor shall not harm, take, harass, injure and/or kill any other species of mammal or bird, or damage vegetation on the LLAS and/or Occupied Lands. Further, Captor shall close any and all gates on the LLAS and/or Occupied Lands after exiting same. Captor shall not drive any motor vehicle upon the LLAS and/or Occupied Lands excepting along the route(s) designated by the Farm Manager. 4. CAPTOR, BY THE EXECUTION HEREOF, RELEASES CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND/OR 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 ANY OF THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT AND/OR THE CAPTORS' OCCUPATION OF THE OCCUPIED LANDS, THE LLAS AND/OR OTHER LANDS OWNED BY CITY, 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. 5. CAPTOR SHALL INDEMNIFY AND HOLD CITY AND CITY'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND ALL INDEPENDENT CONTRACTORS HARMLESS, TO THE FULLEST Prairie Dog Agreement Page 3 of 7 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 ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, AND/OR THE CAPTORS' OCCUPATION OF THE OCCUPIED LANDS, THE LLAS AND/OR OTHER LANDS OWNED BY THE CITY, 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 AND/ORINDEPENDENT CONTRACTORS. IF ANY ACTUAL PROCEEDING IS BROUGHT AGAINST CITY AND/OR CITY'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS ARISING FROM ANY OF THESE CIRCUMSTANCES, CAPTOR FURTHER AGREES TO DEFEND THE PROCEEDING WITH LEGAL COUNSEL ACCEPTABLE TO CITY. 6. Captor shall procure and carry, at 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 Captor, employee of Captor or other third party. A Prairie Dog Agreement Page 4 of 7 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, Captor 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 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 Automobile Liability Insurance. The Captor shall have Comprehensive Automobile Liability Insurance, with limits of not less than bodily injury/ property damage $300,000.00 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 City shall be named as an additional insured in such policy. B. Health Insurance. 7. This Agreement shall expire (_) hours from the date of execution hereof by the City of Lubbock as set forth below, or on 2003 at _ _.m., whichever is the first to occur. Upon expiration of this Agreement, all rights granted to Captor herein shall immediately cease and terminate. This Agreement is non-exclusive and it is expressly agreed and understood that the City may execute additional agreements providing for the Prairie Dog Agreement Page 5 of 7 capture and relocation of Prairie Dogs and/or occupation of all or any part of the LLAS. CITY OF LUBBOCK Bob Cass, City Manager Date: Time: APPROVED AS TO CONTENT: Terry Ellerbrook Director of Public Works �t Dan Dennison Environmental Compliance Manager APPROVED AS TO FORM: Richard Casner Natural Resources Attorney CAPTOR Prairie Dog Agreement Page 6 of 7 1. [Land Description] 2. Captor is permitted to capture Prairie Dogs upon the Occupied Lands on and during the hours of and M. RKC/PrairieDogAgreement.Final September 3, 2002 Prairie Dog Agreement Page 7 of 7