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HomeMy WebLinkAboutResolution - 2001-R0035 - Contract For Cattle Grazing Rights - Lubbock Feeders Of Lubbock - 02/08/2001Resolution No. 2001-R0035 February 8, 2001 Item No. 27 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 contract for cattle grazing rights at the Land Application Site, by and between the City of Lubbock and Lubbock Feeders of Lubbock, 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 this 8th day of February , 2001. &-X.— WINDY SI ON, MAYOR ATTEST: -9 '& I=Q-< z'� v' bnjx-;,, Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Victor Kilman, rchasing Manager AS TO FORM: t. Amy L. gs:/ccdocs/Contract-LubbFeeders.res Jan 29, 2001 CILJ Ll/LCIYJL LL: 11 OU01440LC17 LtiIVL WrL11.4-41 lUTA f'HQr- U/- Resolution .IL Resolution No. 2001-R0035 Date: May 24, 2001 To: Lubbock City Farm Attn: John From: Lubbock Feeders. LP Lubbock, TX Topic: Gazing Agreement on Lubbock City Farm Dear Sirs, We regret to inform you that we will be unable to accept the terms of the grazing previously set forth in the bidding process. We are informing you in writing that we will not be able to graze the City Farm and that it can be submitted for rebid, We appreciate your understanding in this matter. Sincerely, Derek Tbamm Lubbock Feeders, LP Resolution No. 2001-R0035 February 8, 2001 Item No. 27 GRAZING AGREEMENT This Agreement is made this 8th day of February, 2001, by and between Lubbock Feeders, LLC (the "Contractor"), whose mailing address is P.O. Box 53780, Lubbock, Texas, 79453-3780 and the City of Lubbock, a Texas Home Rule Municipal Corporation (the "City"), whose mailing address is P.O. Box 2000, Lubbock, Texas 79457. ARTICLE I GRANT 1.01. Inconsideration of the mutual covenants and agreements set forth in this Agreement, subject to the terms, provisions and limitations set forth herein, City grants Contractor the non-exclusive right to graze cattle upon the surface estate only of all or portions of the property of the City commonly known or referred to as the Lubbock Land Application Site, located in Lubbock County, Texas and the Hancock Land Application Site, located in Lynn County, Texas (collectively, the "Farm"), as directed by the City. It is expressly agreed and understood that this Agreement does not grant any rights, of any kind or nature, in the real property owned by City. 1.02. 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), as set forth in this Agreement. All other uses of the Farm 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 from July 1, 2001, to June 30, 2004, unless terminated earlier pursuant to the terms hereof. Page 1 of 14 2.02. This Agreement shall terminate without further notice, unless terminated earlier pursuant to the terms hereof, when the term specified in this Article II expires. Contractor shall immediately vacate the Farm 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 Farm. ARTICLE III RENT 3.01. During the term of this Agreement, Contractor shall pay to City $24.15 per head per month for grazing, payable each thirty (30) days. At the end of each thirty (30) day period and the final removal of the cattle from the Farm, the cattle will be gathered and counted by the Contractor, with the cooperation of the City 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 presented reflecting payments due from the Contractor to the City and all statements are due and payable in full within ten (10) days of the date of each thirty (30) day statement. Notwithstanding anything to the contrary herein, all amounts due the City under this Grazing Agreement must be paid prior to the removal of the cattle by Contractor. ARTICLE IV EFFLUENT APPLICATION 4.01. Contractor 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 City. Due to its intended purpose, portions of the Farm may not receive effluent in quantities and at Page 2 of 14 times necessary for optimum growth of crops on the Farm. Additionally, Contractor 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 of crops. 4.02. The City shall have the sole right of control over each and every system of effluent application and/or irrigation located upon the Farm. The City 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 the City 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, or as required by regulatory authorities. Contractor 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. 4.03. CONTRACTOR 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 EFFLUENT APPLICATION AND/OR . IRRIGATION UPON THE FARM, OR THE LACK THEREOF, INCLUDING, WITHOUT LIMITATION, EFFLUENT APPLICATION BEYOND NORMAL CROP Page 3 of 14 REQUIREMENTS OR BELOW NORMAL CROP REQUIREMENTS, 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 CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR INDEPENDENT CONTRACTORS. ARTICLE V RESPONSIBILITY OF CONTRACTOR 5.01. Contractor shall graze the Farm, or certain portions thereof, with a sufficient number of cattle, as directed by City, to allow City to maintain a proper water balance regarding optimum effluent disposal activities. Contractor hereby expressly agrees and stipulates that the number of cattle to be grazed 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 fifteen (15) days after written notice by City, increase or decrease the number of cattle upon the Farm, or certain portions thereof, as directed in the notice. 5.02. The Contractor shall provide no less than one "caretaker", and all other necessary labor, medication, supplements and services necessary for the care of the cattle grazed upon the Farm, and City has no responsibility for the care of the cattle. The cattle "caretaker(s)" and other laborers appointed by the Contractor shall be approved by the City, in its sole and absolute discretion, prior to access onto the Farm and may be required to provide references and performance history of such individuals. Page 4 of 14 5.03. Contractor shall keep accurate day-to-day records of cattle movement including, without limitation, dates and numbers received, dates and numbers shipped, and death loss. 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 OPERATION OF THE FARM, 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. 5.04. Contractor 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 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 Page 5 of 14 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. A. Comprehensive General Liability Insurance. Contractor shall have Comprehensive General Liability Insurance with limits of $1,000,000 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. B. Comprehensive Automobile Liability Insurance. The Contractor 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 City 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 Contractor or any permitted subcontractor with Employer's Liability of at least S 1,000,000. 5.05. CONTRACTOR SHALL INDEMNIFY AND HOLD CITY AND CITY'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 CONTRACTOR'S BUSINESS, CONTRACTOR'S USE OF THE FARM, OR ANY OTHER MATTER RELATED TO CONTRACTOR'S OPERATIONS UNDER THIS AGREEMENT, OR Page 6 of 14 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 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 CITY, CITY'S ELECTED OFFICIALS, AGENTS, OFFICERS, EMPLOYEES OR INDEPENDENT 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, CONTRACTOR FURTHER AGREES TO DEFEND THE ACTION OR PROCEEDING WITH LEGAL COUNSEL ACCEPTABLE TO CITY. 5.06. Contractor shall comply with all applicable state, federal and local laws, statutes, rules, regulations and ordinances. 5.07. Contractor shall pay all taxes, if any, on the livestock grazed on the Farm. 5.08. Contractor shall not make any alterations or additions to the Farm, without the prior written approval of City. ARTICLE VI RESPONSIBILITY OF CITY 6.01. In the event City has available hay or other roughage which has been produced on the Farm, the City may, in its sole discretion, make such hay or roughage available for use by the Contractor in feeding the cattle covered by this Agreement without additional charge to the Contractor during periods of excessive damage by Page 7 of 14 migratory birds which results in grazing being reduced or not available. It is expressly agreed and understood that nothing contained herein shall obligate City to provide such hay or other roughage to Contractor. 6.02. The City shall make available groundwater of suitable drinking quality for the cattle of the Contractor at locations to be determined by the City, in its sole discretion. 6.03. The City, in cooperation with the Contractor, shall allow Contractor to utilize the corrals, working pens and loading facilities now constructed on the Farm. ARTICLE VII TERMINATION 7.01. In the event the City determines that the Farm maybe more appropriately utilized for purposes other than the grazing of cattle or the City otherwise desires to terminate this Agreement for any reason or no reason, then the City may, by giving four (4) weeks notice to the Contractor, terminate this Agreement. Contractor shall have until the termination of this Agreement, as set forth in this Section, to remove the cattle remaining on the Farm. 7.02. If the Contractor wishes for any reason to terminate this Agreement, the Contractor may, by giving four (4) weeks prior notice to the City, terminate this Agreement. Contractor shall have until termination of this Agreement, as set forth herein, to remove the cattle remaining on the Farm. 7.03. Nothing contained in this Article VII shall relieve the responsibility of Contractor to make all payments due and owing to City. Page 8 of 14 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 either at law, equity, or contract, including without limitation, immediate termination of this Agreement, 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, City may lock out Contractor from the Farm or, in the case of the default of non-payment for cattle being removed from the Farm, prevent Contractor from removing cattle from the Farm, until the default is cured, without being liable for damages. In the event City shall breach any term and/or provision of this Agreement, Contractor may, at its sole and exclusive remedy, terminate this Agreement. ARTICLE IX MISCELLANEOUS 9.01. 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. 9.02. CITY AND CONTRACTOR 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 CONTRACTOR AS IS, WHERE IS AND WITH ALL FAULTS. Page 9 of 14 9.03. City reserves the right to hunt and fish and to permit third parties to hunt and fish upon the Farm. 9.04. 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 the mineral agreements and City shall receive all consideration paid for such damages. 9.05. 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 is enforceable in accordance with the terms hereof. 9.06. Contractor shall conduct all activities contemplated by this Agreement in a good and farmerlike 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 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 bodies having jurisdiction over such matters, including administrative orders imposing no monetary damage and/or penalty. 9.07. 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, ordinary postal delivery, telecopy or other reasonable means (in which case such notice Page 10 of 14 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. Contractor's address and numbers for the purpose of notice are: Lubbock Feeders, LLC Attn: Doug Kaba P.O. Box 53780 Lubbock, Texas 79453-3780 Dkaba@lubbockfeeders.com phone # (806) 745-4587 facsimile # (806) 745-1304 City's address and numbers for the purpose of notice are: City of Lubbock Attn: Terry Ellerbrook and John Hindman P.O. Box 2000 Lubbock, Texas 79457-2000 Phone # (806) 775-2585 an (806)767-3157 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 such new address or numbers. The address and numbers shall become effective on the thirtieth (30`h) day after such notice is effective. 9.08. 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. Page 11 of.14 9.09. 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 Contractor and City. 9.10. 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, 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. 9.11. 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. 9.12. Contractor shall not utilize the Farm in any way, manner, or form, other than that as expressly set forth in this Agreement. 9.13. This Agreement may not be assigned by Contractor without the prior written approval of the City. 9.14. Contractor shall have no use of surface or groundwater, except for livestock watering purposes. City shall have all rights regarding all surface water and Page 12 of 14 groundwater, including without limitation, the right to pump water from the wells or surface waters on the Farm. 9.15. 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. 9.16. 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 City. If Contractor 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, Contractor shall notify the City and request consent therefrom, 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. 9.11. 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 parry all costs incurred and reasonable attorneys' fees, including all costs of appeal. 9.18. Contractor understands that the City has the right to reject any bids and to waive any formality in the bidding. Page 13 of 14 9.19. Contractor is notified that any and all sections, decisions and provisions of this Agreement made herein are subject to City Council action and approval. Effective for all purposes as of July 1, 2001. CITY: TRACTOR: CITY OF LUBBOCK LUBBOC FEEDERS, LLC WINDY SI TON, MAYOR Doug Kaba Owner/General Manager ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Terry Ellerbroo Managing Director Water Utilities APPROVED AS TO FORM: Richard K. Casner 1 Natural Resources Attorney RKC:cp Cityatt/Richard/GrazingAgreement.acceptedredline December 7, 2000 Page 14 of 14