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HomeMy WebLinkAboutResolution - 2020-R0184 - Sueno Horse and Cattle Co., Contract 15277Resolution No. 2020-RO184 Item No. 7.10 .tune 9, 2020 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF T111, CITY OF LUBBOCK. 'THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and o behalf of the City of Lubbock. Contract No. 15277, Cattle Grazing Rights at Lake Alan Henr Wildliic Mitigation Area, as per ITB 20-15277-CM, by and between the City of Lubbock an Sucho i-lorse and Cattle Co- LLC of Post, Texas, and related documents. Said Contract i attached hereto and incorporated in this resolution as if' Billy set forth herein and shall b included in the minutes ofthe City Council. Passed by the City Council on .tune 9, 2020 ❑ANIEL M. POPE, MAYOR ATTEST: lee ca Garza. City Seer to APPROVED AS TO CONTENT: . 5 Brooke Witcher, Assistant City Manager APPROVED ASTO FORM: lt�-i Bro -e, ssistant City Attorney ccdocs/RFS.-Contract No. 15277-Cattle Grazing Rights 5.12.20 Resolution No. 2020-R0184 GRAZING AGREEMENT This Agreement is made this 9th day of June 2020, by and between Sueno Horse and Cattle Co, LLC (the "Contractor"), whose mailing address is P.O. Box 795, 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. 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 LAH Grazing Agreement Page 1 of21 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 one (1) 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 four (4) additional one (1) year term (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 $12 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 (IO'") day of each following month at the office of the City at 1625 13g' 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 LAH Grazing Agreement Page 2 of 21 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 City along with, and reflecting, payments due from the Contractor to the City for each monthly period. Notwithstanding anything to the contrary herein, all 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 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 LAH Grazing Agreement Page 3 of 21 City to have in their possession at all times written permits issued by the City. c. The City may conduct prescribed burn 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 LAH Grazing Agreement Page 4 of 21 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. 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. 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 5 and Pasture 4. Although the number of LA14 Grazing Agreement Page 5 of 21 cattle are likely to change during the term of this Agreement, and are 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. 5.02 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. FURTHER, 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 LAH Grazing Agreement Page 6 of 21 City, its officers, employees, elected officials and/or agents, and any such reliance shall be at Contractor's sole risk. 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, EXPRESS, 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. 5.03 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 LAH Grazing Agreement Page 7 of 21 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 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 LAH Grazing Agreement Page 8 of 21 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, LAH Grazing Agreement Page 9 of 21 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, along with the report related to cattle on the Premises, as set forth in Section 6.04. 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 therof. 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, LAH Grazing Agreement Page 10 of 21 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 LAH Grazing Agreement Page 1 l of 21 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. 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 primary 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 LAH Grazing Agreement Page 12 of 21 all owned and non -owned vehicles, including employer's non -ownership liability hired and non -owned vehicles. The required Automobile Liability Insurance shall include coverage for environmentally related bodily injury and property damage. The City shall be named as primary additional insured in such policy. C. Worker's Compensation. The Contractor shall elect to obtain worker's compensation coverage in the amount of $500,000 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. The Contractor may maintain Occupational Accident and Disability Insurance in lieu of Workers' Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the CITY OF LUBBOCK. 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 LAH Grazing Agreement Page 13 of 21 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 LAH Grazing Agreement Page 14 of 21 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. LAN Grazing Agreement Page 15 of 21 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. Hunting will proceed on the Wildlife Mitigation Area according to State guidelines. 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. LAH Grazing Agreement Page 16 of 21 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 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 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. 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: Sueiio Horse and Cattle Co, LLC P.O. Box 795 LAH Grazing Agreement Page 17 of 21 Post, TX 79356 Phone # (806) 782-1227 Facsimile # (806) 795-399 with copy to: Attn: Chance Fernandez Address: P.O. Box 795 City/State/ZipCode: Post, TX 79356 Phone # (806) 782-1227 Facsimile # (806) 795-3996 City's address and numbers for the purpose of notice are: City of Lubbock Attn: Brooke Witcher, Assistant City Manager P.O. Box 2000 Lubbock, Texas 79457-2000 Phone # (806) 775-3086 with copy to: City of Lubbock Attn: Diane Selby, Lake Alan Henry Project Coordinator 1301 Broadway Lubbock, Texas 79401 Phone # (806) 548-4097 Facsimile # (806) 775-2686 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 (301h) day after such notice is effective. 10.06. 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. LAH Grazing Agreement Page 18 of 21 10.07. 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. 10.08. 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. 10.09. 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. 10.10. Contractor shall not utilize the Premises in any way, manner, or form, other than that as expressly set forth in this Agreement. 10.11. This Agreement may not be assigned by Contractor. 10.12. Contractor shall have no use of surface water or groundwater, except for livestock watering purposes. 10.13. 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 LAH Grazing Agreement Page 19 of 21 any single or partial exercise thereof preclude any other further exercise thereof or exercise of any other right. 10.14. 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 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. 10.15. 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. 10.16. 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. June 9, 2020 Effective for all purposes as of May , 202-0 LAID Grazing Agreement Pale 20 of 21 ATTEST: ,&..4 8- & )NC Reb c Garza, City Secr to APPROVED AS TO CONTENT: &wyujffig�& Brooke Witcher, Assistant City Manager rt lane Selby, Lake Alan Henry Pr e t Coordinator APPROVED AS TO FORM: Ryanjoe7, sistant City A rney CITY OF LUBBOCK DANIEL M. POPE, MAYOR CONTRACTOR LAH Grazing Agreement Page 21 of 21 f ti� I • r ram' •.I I ^ ".5 - w Al ell LADE ALAN " HENRY r 4i. Mile, .' } LAKE ALAN HENRY=' WILDL(FE MANAGEMENT AREA ` Hunter Check4n Fence Line Food Plots all 0 Ponds 0 Gates