HomeMy WebLinkAboutMINUTES - 07082008 - C.29 C . 29
THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on JULY 08, 2008 by the following vote:
AYES. SUPERVISORS GLOVER, GIOIA, UILKEMA, PIEPHO, BONILLA
ABSENT: NONE
.ABSTAIN: NONE
SUBJECT: APPROVE AND AUTHORIZE THE DIRECTOR OF AIRPORTS
OR DESIGNEE TO EXECUTE A LICENSE AGREEMENT WITH
BYRON AIRPORT LIVESTOCK GRAZING TENANT.
RELISTED: REMOVED TO BE RELISTED TO A DATE TO BE DETERMINED.
I hereby certify that this is a true and correct
copy of an action taken and entered on the
minutes of the Board of Supervisors on the
date shown.
Attested: JULY 08 , 2008.
JOHN CULLEN, CLERK OF THE BOARD
Of Supervisors and County Administrator
By: A 6�
Deputy Clerk
SG.L
TO: BOARD OF SUPERVISORS Contra
FROM: KEITH FREITAS, DIRECTOR OF AIRPO TS ;; _ Costa
DATE: July 8, _008 c � County
7 vr�.coi:r't'` .1
SUBJECT: APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a license
agreement with Byron Airport livestock grazing tenant.
SPECIFIC RI-QUEST(S)OR RECOMMENDATioN(S)R BACKGROUND AND.IUST'IFICATION
RECOMMENDED ACTION:
APPROVE and AUTHORIZE the Director of Airports, or designee, to execute license agreements for livestock
grazing of the Habitat Management Lands at Byron Airport with Joseph C. and Patricia A. Borges effective July
2008, Byron area. (District III)
FISCAL IMPACT:
The Airport Enterprise Fund will realize a total of$956 in fees for period from effective date to September 30,2008.
Effective October 1, 2008 through September 30, 2009, the Airport Enterprise Fund will realize a total of$2,868.
The annual fee will be increased by four percent for each year thereafter.
Continued on Attachment: ® SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR. ❑ RECOMMENDATION OF BOARD COMMITTEE
❑ APPROVE ❑ OTHER
SIGNATURE(S):
ACTION OF BOARD ON
APPROVED AS RECOMMF E OT ER ❑
VOTE OF SUPERVISORS
UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN: I hereby certify that this is a true and correct copy ot'an action taken
and entered on the minutes of the Board of'Supervisors on the date
shown.
Orig.Div:County Airports ATTESTED:
Contact: Beth Lee(925)646-5722 JOHN CULL Cle of the Board of Su ervisors and Count
cc: County Adm inistrator p y
Public works Director Administrator
By Deputy
SUBJECT: APPROVE and AUTHORIZE:the Director of Airports, or designee, to execute livestock grazing
license agreement with Byron Airport grazing tenant.
DATE: July 8, 2008
PAGE:. 2 of 2
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
Of the 1307 acres at the Byron Airport, 814 are designated as Habitat Management Land (HML) pursuant to a
conservation easement granted by the County to the State of California Department of Fish and Game(Easement).
In accordance with the Easement,the County is responsible for conserving and improving the HML for endangered
and other special-status species. The County has determined that livestock grazing on the HML will help the County
achieve the conservation goals.
The HML has been divided into ten separate parcels(shown on the attachment to the license agreements) for grazing
as follows:
Kuhn in Pastures 6 and 7,.for a total of 127 acres.
Stewart in Pasture 5, for a total of 122 acres.
Borges in Pastures 1, 21, 3, 4, 8, A and B, for a total of.478 acres.
The license provides for a fee from the effective date until September 30, 2008, at which time an annual fee is
assessed to each licensee based on their acreage. Gary and Delores Kuhn's fee amount is $254 to September 30,
2008,and$762 annually for October 1,2008 to September 30,2009. Jacqueline G. Stewart's fee amount is$244 to
September 30, 2008, and $732 annually for October 1, 2008 to September 30, 2009. Joseph C. and Patricia A.
Borges' fee amount is$956 to September 30,2008,and$2868 annually for October 1,2008 to September 30,2009.
All three parties have existing agreements with the County for livestock grazing but the form of these agreements
does not properly define the Easement requirements. The new form of license agreement includes all the required
language and provisions to assist the County in achieving and maintaining the conservation goals.
CONSEQUENCES OF NEGATIVE ACTION:
If the license agreements are not approved,the County will have to implement alternative measures for vegetation
management in order to meet the conservation goals of the Easement. Such alternative measures may result in
increased cost to the County to comply with the Easement.
LICENSE AGREEMENT
BETWEEN
CONTRA COSTA COUNTY
AND
JOSEPH C. and PATRICIA A. BORGES
FOR LIVESTOCK GRAZING
BYRON AIRPORT
TABLE OF CONTENTS
1. Effective Date.............................................................................................................. 3
2. Definition of Grazing Terms.......................................................................................... 3
3. Purpose ...................................................................................................................... 3
4. Grant of License ..............................................................................:........................... 4
.......................
S. County's Title ....................... ................................................................ 4
6. Term ................................:......................................................................................... 4
7. Condition of Licensed Premises..................................................................................... 4
8. Use of Licensed Premises........................................................................................... . 5
9. Nonrefundable Grazing License Fee .............................................................................. 7
10. Security Deposit.......................................................................................................... 8
11. Range Management Practices ....................................................................................... 8
12. Grazing Capacity, Grazing Season and Authorized Livestock........................................... 9
13. Residual Dry Matter Requirements ............................................................................. 11
14. Licensee Responsibilities for Rangeland Monitoring ..................................................... 12
15. Required Licensee Notifications.................................................................................. 12
16. Maintenance and Construction of Improvements......................................................... 13
17. Waste, Hazardous Materials...................:................................................................... 13
18. Default.........................................................................:........................................... 14
19. Entry and Inspection ................................................................................................. 14
20. Suspension or Limitation of Use ............... .................. 14
................................................
21. Revocable Use .......................................................................................................... 14
22. Security.................................................................................................................... 15
23. Permits and Approvals............................................................................................... 15
24. Indemnification......................................................................................................... 15
25. Insurance................................................................................................................. 15
26. Notices..................................................................................................................... 16
27. County Provisions for Airport....................................................................................... 17
28. Assignment and Subletting ........................................................................................ 18
29. Non-Discrimination.................................................................................................... 18
30. Navigational Aids....................................................................................................... 18
31. Governing Law.......................................................................................................... 19
32. Non-Waiver of Breaches ............................................................................................ 19
33. No Modification......................................................................................................... 19
34. No Third-Party Beneficiaries....................................................................................... 19
35. No Warranties...................................:....................................................................... 19
36. Severability............................................................................................................... 19
37. Revocation of Prior Licenses ...................................................................................... 19
38. Entire Agreement...................................................................................................... 20
Page 2 of 20
THIS LICENSE AGREEMENT ("Agreement") is made and entered into on this day of ,
2008, by and between the County of Contra Costa, a political subdivision of the State of
California, hereinafter called "County" and Joseph C. Borges and Patricia A. Borges, hereinafter
called "Licensee." Now, therefore, the parties hereby agree as follows:
I. Effective Date
This Agreement is subject to approval 'by the County Board of Supervisors. This
Agreement shall be effective on the date approved by the Board of Supervisors (the
"Effective Date").
2. Definition of Grazing Perms
For purposes of this Agreement; the following terms shall_have the following meanings:
A. "Animal Unit Month" or "AUM" means the amount of forage required by one (1)
animal unit for one (1) month. For purposes of this Agreement, the AUM for one
(1) mature cow is deemed to be eight hundred (800) pounds of forage.
B. "Grazing Capacity" means the level of livestock use allowed on the Licensed
Premises consistent with forage production and resource conservation. The unit
of measure of Grazing Capacity for this Agreement is the AUM. The initial Grazing
Capacity for the Licensed Premises is set forth in Section 12 below.
C. "Grazing Season" means the period of time during each year of this Agreement
during which Licensee's Livestock are permitted to graze the Licensed Premises,
as..determined by County from time to time. The initial Grazing Season for the
Licensed Premises is set forth in Section 12 below.
D. "Livestock" means steers, heifers, cows, calves and bulls. County may change the
kinds of Livestock authorized to graze the Licensed Premises as provided in
Section 12 of this Agreement.
E. "Range Manager" means the individual designated by County to oversee the
portion of the Habitat Management Land that is the subject of this Agreement.
F. "Residual drymatter" or "RDM" means the amount of dry, herbaceous plant
material, expressed in pounds per acre that must remain on the ground at the end
of the Grazing Season during each year of this Agreement, as determined by
County.
3. Purpose
County is the owner and operator of a public airport located near Byron, California, and
commonly known as the Byron Airport ("Airport'). Approximately 814 acres of the
Airport property have been reserved as Habitat Management Land ("HML") pursuant to a
conservation easement granted by County to the State of California Department of Fish
and Game ("Easement"). A true and correct copy of the Easement is on file with the
Director of Airports at 550 Sally Ride Drive, Concord, California.
Page 3 of 20
Under the Easement, the County is responsible for conserving and improving the HML for
endangered and other special-status species. County has determined that Livestock
grazing on the parcels of land identified in Section 4 below as the..."Licensed Premises"
will help County meet the conservation goals of the Easement.
The purpose of this Agreement is to provide for the grazing of Livestock on the Licensed
Premises for vegetation management in accordance with specifications outlined herein.
Any and all rights granted or implied by this Agreement are subject and subordinate to
the Easement. In addition, all rights granted to Licensee hereunder are subject to all
existing and future rights of way, reservations, franchises, easements and permits with
respect to all or any portion of the Licensed Premises, regardless of who holds same,
including County's right to use the Licensed Premises, or any portion thereof, for any
purpose, and Licensee shall not interfere with such uses. .
4. Grant of License
Licensee now desires to obtain a license to use a portion of the Airport property identified
as Pastures 11 2, 3, 4, 8, "A" and "C" on Exhibit "A" attached hereto and incorporated
herein and made a part hereof, hereinafter referred to as the "Licensed Premises," for
Livestock grazing. County, for good and valuable consideration, hereby grants to
Licensee, and Licensee hereby accepts from County, a revocable, nonexclusive license
(`License') to enter and use the Licensed Premises for the grazing of Livestock pursuant
to the terms and conditions hereinafter set forth.
5. County's Title
Licensee hereby acknowledges County's fee title in and to the Licensed Premises and
agrees never to assail or to resist said title. Licensee agrees that it has not acquired nor
will it hereafter acquire any rights or interest in the Licensed Premises, nor does Licensee
have nor will it obtain any right or claim to the use of the Licensed Premises beyond
those specifically granted in this Agreement.
6. Term
The term of this Agreement will commence on the Effective Date, and expire on
September 30, 2013, unless the License granted hereunder is suspended or revoked as
hereinafter set forth.
7. Condition of Licensed Premises
Licensee acknowledges, agrees to, and hereby accepts the Licensed Premises in their "as
is" condition, without representation or warranty of any kind, and subject to all applicable
laws, statutes, ordinances, rules and regulations governing the use, occupancy,
management, operation and possession of the Licensed Premises. Licensee agrees,
upon termination of this Agreement, to surrender the Licensed Premises to County in the
condition as directed by the Director of Airports, and to remove all of Licensee's Livestock
and personal property from the Licensed Premises.
Page 4 of 20
8.' Use of Licensed Premises
A. Permitted Use: The Licensed Premises are licensed to Licensee upon the express
condition that Licensee shall use the Licensed Premises. for grazing of Livestock
owned by Licensee and for no other purposes without prior written consent from
County, which may be withheld in County's sole discretion. Licensee represents
and warrants that Licensee has conducted a thorough and diligent inspection and
investigation of the Licensed Premises and the suitability of the Licensed Premises
for Licensee's intended use. Licensee is fully aware of the needs of its grazing
operations and has determined, based solely on its own inspection, that the
Licensed Premises are suitable for Licensee's operations and intended use.
Licensee shall conduct all operations on the Licensed Premises in a responsible,
safe, professional, and environmentally conscious manner, and is responsible at all
times for containment of the Livestock on the Licensed Premises.
B. Satisfaction of RDM Requirements: Licensee shall conduct grazing operations on
the Licensed Premises so that the RDM requirements specified herein are met.
C. Land Management and Forage Utilization: Licensee shall distribute Livestock
throughout the Licensed Premises in accordance with the Grazing Capacity
established by County for each Pasture, as specified in Section 12, unless modified
by County. Licensee shall maintain optimum distribution of Livestock by frequent
herding, by strategic location of supplemental feeds, and by maintaining boundary
and interior fencing and developed watering systems in good condition and repair.
Licensee shall use the Licensed Premises in accordance with rangeland
management practices specified by County, and with due regard to the
conservation of the natural resources located thereon.
D. Grazing Within Licensed Premises: Licensee shall at all times prevent Livestock
from trespassing onto other lands owned or operated by County on which
Licensee is not authorized to graze, into areas within the Licensed Premises
excluded from the authorized grazing areas, or upon any adjacent, third-party
lands, whether private or public.
E. Supplemental Feeding: Licensee shall not conduct supplemental feeding of
Livestock on the Licensed Premises to prolong grazing use in areas where the
established forage utilization levels have been reached or exceeded. Licensee
shall relocate supplemental feeding sites when such sites become sufficiently
grazed, or at County's direction, so as to minimize the potential for damage to
natural resources on_ the Licensed Premises caused by congregating Livestock.
Licensee shall locate supplements only in under-utilized areas of the Licensed
Premises, and at least 1000 feet away from water, whenever possible.
In the event of unusual or emergency circumstances, such as drought or the loss
of vegetation by wildfire, County may allow short-term supplemental feeding on
the Licensed Premises until Licensee can make arrangements to remove Livestock
from the Licensed Premises, which may require short-term confinement of
Livestock to restricted locations on the Licensed Premises to minimize resource
impacts.
Page 5 of 20
F. Livestock Health: Licensee covenants and warrants that all Livestock on the
Licensed Premises shall be in good health with appropriate vaccinations, including
but not limited to specific vaccinations for Anthrax, according to good husbandry
practice. Licensee shall develop a health program for preventing and curing
general parasitic diseases, for maintaining healthy immune systems, and for
minimizing diarrhea infections for Livestock on the Licensed Premises.
G. Outbreak of Disease: Licensee shall immediately report to County, the Range
Manager, the Contra Costa County Agricultural Commissioner ("Commissioner")
and all other appropriate governmental agencies, any case of infectious disease
appearing in the Livestock on the Licensed Premises. Licensee shall take all steps
required and recommended to isolate all Livestock exhibiting symptoms of disease
or that have been exposed to other Livestock exhibiting symptoms of disease, and
to control and eliminate any such disease at Licensee's sole cost and expense.
H. Disposal of Dead Livestock: Licensee shall immediately dispose of any deceased
Livestock carcasses, at Licensee's sole cost and expense, in accordance with
instructions: provided by, the Commissioner and other local authorities and in
conformance with all applicable laws including, but not limited to, California Food
and Agricultural Code Sections 9141, .9142, 19348. If Licensee fails to remove
such deceased .Livestock. from the Licensed Premises within five (5) days after
written notice from County requiring such removal, County may remove such
Livestock. Licensee shall immediately reimburse County for all costs and expenses
incurred by County to remove the carcasses. Licensee shall inform County and
the Range Manger when Livestock disposal is necessary and shall ensure that
these regulations are followed.
I. Removal or Use of Natural Resources: Licensee shall not cut down, destroy or
remove, 'nor permit to be cut, destroyed or removed, any trees or shrubs, earth,
soil, vegetation, artifacts, fossils or firewood, standing, growing or found on the
Licensed Premises, without prior written authorization from County to commit
such acts, except where such earth, soil or vegetation are in the form of
landslides, downed trees, or shrubs which are creating an immediate hazard or
substantial impediment to the routine operation of the rights herein granted.
Licensee shall not hunt, fish or camp, or permit any hunting, fishing or camping,
on the Licensed Premises, and shall at all times keep and maintain the Licensed
Premises in a clean and sanitary condition to the satisfaction of County.
]. Wildlife and Vegetation Control: Licensee shall not undertake any form of wildlife
or vegetation control, such as the use of pesticides or rodenticides, without prior
written approval from the Director of Airports, County and the State of California
Department of Fish and Game. Any violation of this Section shall be considered a
default under this Agreement.
K. Compliance with Laws:. Licensee shall not use, or permit the use of, the Licensed
Premises for any illegal purpose. Licensee shall comply with all State, County and
local laws, ordinances, rules and regulations concerning the Licensed Premises
and the use thereof. Licensee shall not carry on or permit any nuisance on the
Page 6.of 20
Licensed Premises, or allow any use of the Licensed Premises that is against public
or County policy.
L. Vehicular Traffic: Licensee shall keep all vehicular traffic on the Licensed Premises
to an absolute minimum in order to protect the conservation values of the HML.
Licensee shall limit all vehicular traffic to established pasture "roads" as specified
by County, unless Licensee obtains.County's prior written approval for vehicular
traffic off established pasture "roads."
M. Access to Licensed Premises: Licensee shall not allow access to the Licensed
Premises to any person other than Licensee or Licensee's agents and employees,
County, the Range Manager, and County's officers, agents and employees.
9. Nonrefundable Grazing License Fee
A. Annual Fee: Each year during the term of this Agreement, Licensee shall pay to
County an annual nonrefundable fee ("Fee") for grazing on the Licensed Premises.
.The Fee shall be payable in advance in equal semi-annual installments due on
October 1 and April 1 of each year during the term of this Agreement. If any
semi-annual installment covers a period of time less than six (6) months, the Fee
shall be prorated at the .rate of 1/12th of the annual Fee for each full calendar
month, and 1/30th of the monthly Fee for each day during any partial month, for
the time period covered by the payment in question.
B. Fee for Use to September 30, 2008: On the Effective Date, Licensee shall pay
County a nonrefundable 'fee for the period of time from the Effective Date to
September. 30, 2008, in the amount of NINE HUNDRED FIFTY-SIX DOLLARS
($956.00).
C. Annual Fee Adjustments: On October 1, 2008, and on April 1, 2009, Licensee shall
pay County the semi-annual installments of the first annual Fee. The amount of
each installment due from Licensee is ONE THOUSAND FOUR HUNDRED THIRTY-
FOUR DOLLARS ($1,434.00), for a total first annual Fee of TWO THOUSAND
EIGHT HUNDRED SIXTY-EIGHT DOLLARS ($2,868.00). On October 1, 2009, and
thereafter on the first day of October for each year during the term of this
Agreement, the annual Fee will be increased by an amount equal to four percent
(4%) of the annual Fee for the preceding year. Set forth below is an example of
the schedule of adjustments to the annual Fee during the term of this Agreement.
Time Period Annual Fee First Installment Second Installment
10/1/08 - 9/30/09 $2,868.00 $1,434.00 due 10/1/08 $1,434.00 due 4/1/09
10/1/09 - 9/30/10 $2,982.00 $11491.00 due 10/1/09 $1,491.00 due 4/1/10
10/1/10 - 9/30/11 $3,102.00 $1,551.00. due 10/1/10 $1,551.00 due 4/1/11
10/1/11 - 9/30/12 $3,226.00 $1,613.00 due 10/1/11 $1,613.00 due 4/1/12
10/1/12 - 9/30/13 $3,354.00 $1,677.00 due 10/1/12 $1,580.00 (due 4/1/13
Page 7 of 20
D. No Deductions or Offsets: The Fee shall be payable, without prior demand and
without any deduction, setoff or counterclaim whatsoever. Licensee shall pay the
Fee when due, whether or not Licensee's Livestock have consumed all of the
authorized AUMs, unless County has given prior written authorization for a
reduced utilization of the authorized AUMs.
E. Place for Payments: All payments shall be made payable to Contra Costa County
at the offices of the Director of Airports, 550 Sally Ride Drive, Concord, CA 94520,
or as County may designate from time to time.
10. Security Deposit
Licensee is the successor in interest to the licensee under those certain livestock grazing
licenses entered into between County and Borges Angus Ranch, dated February 1, 1997
for Pastures 1-4 and Pastures 7-12. Therefore, the security deposit paid by the former
licensee in the amount of Seven Hundred Fifty and No/100 Dollars ($750.00) for Pastures
1-4 and Seven Hundred Fifty and No/100 Dollars ($750.00) for Pastures 7-12, for a total
Security deposit of One Thousand Five Hundred and No/100 Dollars ($1,500.00) shall
become the security deposit for this Agreement. This security deposit will act as security
for the full performance by Licensee of the terms, conditions, and covenants of this
Agreement.
Upon revocation of the License granted hereunder or upon termination of this
Agreement, County may use any portion of the security deposit as it deems to be
necessary to remedy Licensee's defaults under any of the provisions of this Agreement,
including, but not limited to, payment of any unpaid Fee due under Section 9 of this
Agreement, repair of damage, removal of any of Licensee's equipment or debris which
has been abandoned by Licensee, or to remedy any other default as determined by
County. Upon expiration or termination of .this Agreement, County will refund any
remaining portion of the security deposit to Licensee, after deduction for all amounts
described above.
11. Range Management Practices
A. Range Manager: County may designate alternate Range Managers from time to
time to oversee the HML and to ensure that Licensee complies with all
requirements of this Agreement. . County will provide Licensee with written notice
if it designates a Range Manager and will thereafter provide Licensee with written
notice of any changes in its designated Range Manager.
B. Range Readiness: Prior to the beginning of each Grazing Season during the term
of this Agreement, the Range Manager may inspect the Licensed Premises to
assess whether adequate forage material is available to support grazing by
Licensee's Livestock at the existing Grazing Capacity. In situations where, in the
previous Grazing Season, forage utilization by Licensee's Livestock has caused the
standing vegetation to fall below 400 pounds/acre, County will require that
sufficient plant re-growth be established to provide adequate forage and soil
protection before County will allow Licensee to resume grazing on the Licensed
Premises.
Page 8 of 20
C. Assessment of Rainfall Patterns: The Range Manager may make an annual
assessmentof early rainfall patterns to determine whether precipitation appears
average or significantly below or above average. In the event the rainfall patterns
remain below average in any year, County may delay or reduce the length of that
year's Grazing Season or reduce the Grazing Capacity to a level consistent.with
forage availability and other resource management considerations.
D. Grazing Compliance Program: The Range Manager may conduct an ongoing
grazing compliance program, which will include, without limitation, measuring
grass height at various times throughout the Grazing Season, both to ensure
Licensee's compliance with the RDM requirements set forth herein and to enable
County . to determine whether any modifications are needed to the Grazing
Capacity established for the Licensed Premises, the Grazing Season or the kinds or
numbers of Livestock authorized to graze the Licensed Premises.
12. Grazing Capacity, Grazing Season and Authorized Livestock
A. Initial Grazing Capacity: The authorized Grazing Capacity for the various pastures
that comprise the Licensed Premises is set forth in the table below. Unless
changed in. the manner provided below, the Grazing Capacity shall remain the
same throughout the term of this Agreement.
PASTURE ACRES AUM's
. 1 38 45
2 70 137
3 112 188
4 79 147
8 141 185
A 28 39
B 10 13
B. Initial Grazing Season: Unless changed in the manner provided below, the
authorized Grazing Season for the Licensed Premises is October 1 to September
30 for each year during the term of this Agreement.
C. Initial Authorized Livestock: The kinds of Livestock authorized to graze the
Licensed Premises are steers, heifers, cows, calves and bulls. Unless changed. in
the manner provided- below, the kinds of Livestock authorized to graze the
Licensed Premises shall remain the same throughout the term of this Agreement.
Licensee shall brand or. mark its authorized Livestock and their offspring with
Licensee's brand or mark. County may also require Licensee to identify its
authorized Livestock with distinctive eartags to prevent or detect trespass by
unauthorized Livestock. Licensee shall submit to the County and to the Range
Manager a copy or copies of Licensee's Certificate(s) of brand.
D. Countyas Sole Judge of Grazing Capacity, Grazing Season and Livestock: County
shall be the sole judge as to the Grazing Capacity, of the Licensed Premises and
any Pasture thereof, the Grazing Season, and the kinds and number of Livestock
Page 9 of 20
authorized to graze the Licensed Premises. The determination of the County as to
the Grazing Capacity, the Grazing Season and the authorized Livestock shall be
binding and conclusive upon Licensee. In determining the Grazing Capacity,
Grazing Season and authorized Livestock for the Licensed Premises, County may,
at its option, give such consideration as it deems advisable to such factors as
vegetation, wildlife, fisheries, soil, water, air, aesthetic and other resources, and to
the compatibility of the Grazing Capacity, Grazing Season and authorized Livestock
with the availability and conservation of such resources.
E. Changes in Grazing Capacity and Grazing Season: The Range Manager may
conduct regular assessments of the Licensed Premises to identify areas the County
considers suitable for grazing and to estimate the forage production for the
upcoming Grazing Season. RDM requirements, as identified below, will be
subtracted from the estimated total amount of forage available on areas of the
Licensed Premises suitable for grazing to determine how much forage is available
for Licensee's Livestock to consume in an average, above average and below
average rainfall year. County's determination of Grazing Capacity and Grazing
Season for the Licensed Premises will be based upon the estimated forage
production in an average rainfall year, and may be changed by County, in its sole
discretion. Licensee acknowledges that the forage production during an above
average rainfall year could increase by as much as thirty-five percent (35%), and
a below average rainfall year could result in substantially less forage available for
consumption, both of which may result in. a temporary change in the stocking
levels for Licensee's Livestock.
F. Relative Forage Requirements: The Range Manager may regulate the kind and
number of Livestock on the Licensed Premises to make sure that the Grazing
Capacity is met, but not exceeded, and that the RDM requirement set forth below
is satisfied. County may at any time modify the kind and number of Livestock
permitted to graze the Licensed Premises, if, in County's sole opinion, such
changes are necessary for conservation of the Licensed Premises. In order to
make this determination, the Range Manager may need to compute the rate of
consumption of the authorized available forage by Licensee's Livestock. For the
purpose of computing the consumption rate, the relative forage requirements of
the various kinds of Livestock permitted to graze the Licensed Premises shall be
deemed to be as follows, expressed as an animal unit conversion factor:
Tye of Livestock Animal Unit Conversion Factor
Steer or heifer 6 months to 2 years of age) 0.65 AUM
Cow or cow and calf under 6 months of age 1.00 AUM
Bull 1.25 AUM
As the types of Livestock change in age, the new factor shall be effective upon the
date on which the change occurred. .
G. Notice of Change in Grazing Capacity, Grazing Season and Livestock: If County
deems it necessary to modify the Grazing Capacity of the Licensed Premises, the
length of the Grazing Season or the kinds or number of Livestock authorized to
graze the Licensed Premises, County will provide written notice of any such
Page 10 of 20
change in Grazing Capacity, Grazing Season or Livestock to Licensee. Licensee
shall have fifteen (15) days to comply with the written notice. Unless further
changed by subsequent written notice, the Grazing Capacity, Grazing Season and
authorized Livestock for any year during the term of this Agreement shall remain
as last authorized by County.
H. Changes in Grazing Capacity and Grazing Season by Mutual Consent: In any year
during the term of this Agreement, County and Licensee may, by written mutual
consent, modify the authorized Grazing Capacity and the length of the Grazing
Season. Any such change shall remain in force and effect until the beginning of
the next Grazing Season, unless sooner terminated or modified by further mutual
agreement or by County in its sole discretion.
I. Exceeding Grazing Capacity without Authorization: Licensee shall limit the number
of Livestock to be grazed upon the Licensed Premises in order. to meet, but not
exceed, the authorized Grazing Capacity for the Licensed Premises. Should the
Licensed Premises be grazed in excess of the authorized number of AUMs,
Licensee shall immediately remove all or such number of Livestock as are
necessary to.comply with the Grazing Capacity authorized by County.
13. Residual Dry Matter Requirements
A. Initial RDM Requirement: The minimum RDM requirement for the Licensed
Premises is 400 pounds per acre. The height in inches of standing vegetation
remaining on the ground is a general indication of RDM levels, and the RDM level
required for the Licensed Premises will generally equate to approximately three
(3) inches of standing vegetation. However, County will deem the RDM
requirement met if the height of standing vegetation at the end of each Grazing
Season is three (3) inches to six (6) inches. . Unless changed in the manner
provided below, the RDM requirement shall remain the same throughout the term
of this Agreement.
B. County to Monitor RDM Levels: The Range Manager may monitor the height of
standing vegetation on a monthly basis, and may require Licensee to move
Livestock to a different location on the Licensed Premises, or to increase or
decrease the number of Livestock grazing the Licensed Premises to increase the
likelihood that the annual RDM requirement will be met by the end of the Grazing
Season. County will attempt to provide advance notice to Licensee before RDM
levels reach 200 pounds/acre above the minimum RDM requirement to allow
Licensee ample time to decrease herd size or remove Livestock. Whether or not
Licensee receives such advance notice, Licensee shall immediately remove all
Livestock from the Licensed Premises (or the affected Pasture thereof) if the RMD
levels drop below 400 pounds/acre (approximately three (3) inches of standing
vegetation), and shall not allow any further grazing of the affected areas until
County determines that such areas have sufficiently recovered to allow continued
grazing.
C. Change in RDM Requirement: County may change the RDM requirement for the
Licensed Premises from' time to time throughout the term of this Agreement if
Page 11 of 20
County, in its sole discretion, deems it necessary to do so in order to promote soil
stability, maintain plant productivity or diversity, enhance visual and recreational
values; conserve wildlife habitat, promote biodiversity or reduce fire hazards.
D. Notice of Change in RDM Requirement: County will provide written notice to
Licensee of any change in the RDM requirement. Upon receipt of the notice,
Licensee' shall make any necessary adjustments to the number of Livestock
grazing the Licensed Premises in order to meet the changed RDM requirement.
14. Licensee Responsibilities for Rangeland Monitoring
A. Rangeland Conditions: Licensee shall conduct measurements and visual estimates
of a variety of rangeland condition indicators in coordination with County and the
Range Manager to monitor the condition of Licensed Premises.
B. Height of Grasses: Licensee shall on a monthly basis estimate the height of
grasses (in inches) for each Pasture(s) of the Licensed.Premises from convenient
locations, record the estimates, and report them to County and to the Range
Manager in writing within two (2) weeks of the day the estimates were taken. A
minimum of two (2) estimates shall be made in each Pasture.
C.. Record of Unusual Events: Licensee shall record descriptions of unplanned
disturbing events (fires, new infestations of weeds, vandalism, etc.), including
dates and locations, and show such events on a map. Licensee shall submit the
descriptions and maps to County and to the Range Manager within two (2) weeks
of the date recorded. For disturbing events that affect forage availability or
containment of Livestock, Licensee shall notify County and the Range Manager
immediately.
D. Livestock Loa: Licensee shall maintain a log of the number, type, weight and age
of Livestock grazing in each Pasture, and report these numbers to County and to
the Range Manager at the beginning and end of each Grazing Season, and on a
monthly basis during each Grazing Season.
15. Required Licensee Notifications
In addition to any notifications required under any other. Section in this Agreement,
Licensee shall provide the notifications set forth below.
A. Placing Livestock on Licensed Premises: Licensee shall notify County and
the Range Manager fifteen (15) days prior to 'the date Licensee intends to
introduce Livestock to the Licensed Premises in order that County and the Range
Manager can verify range readiness conditions as specified in Section 11 above.
Licensee shall not introduce Livestock to the Licensed Premises until Licensee
obtains written authorization from County to begin grazing the Licensed Premises.
B. Livestock Roundup: Licensee shall provide seven (7) days advance notice to
County and to the Range Manager before performing any major Livestock
roundup, or activities involved in the movement of the Livestock on the Licensed
Premises and/or use of the corral facilities.
Page 12 of 20
16. Maintenance and Construction of Improvements
Licensee shall maintain, repair and replace, if necessary, in good order and condition
throughout.the term hereof, all improvements related to Livestock grazing existing on the
Licensed Premises as of the Effective Date, including, but not limited to, all fences, gates,
corrals, ditches, wells, windmills, pumps, and water troughs and roadways
("Improvements").
Licensee shall not construct or install any additional Improvements on the Licensed
Premises without the prior written consent.of County. Prior to the commencement of any
maintenance, repair or replacement of any existing Improvements, or the construction or
installation of any approved additional Improvements, Licensee shall give County and the
Range Manager ten (10) days written notice to.enable County to post appropriate notices
to avoid liability on account of such work.
Licensee shall defend, indemnify, save,. protect and hold harmless County, its officers,
agents and employees, from all. liens, claims, demands and liabilities arising out of any
work performed, materials furnished or obligations incurred by Licensee upon the
Licensed Premises during the term of this Agreement and agrees not to suffer any such
lien or other lien to be created. This indemnification clause shall survive the termination.
or expiration of this Agreement.
In .the event Licensee shall fail to perform its obligations hereunder, County, in addition
to all other remedies available hereunder or by law or in equity and without waiving any
of said alternative remedies, may perform same, and Licensee agrees to repay County
the cost thereof within five (5) calendar days after County's written request. Licensee
hereby waives all rights to make repairs at the expense of County if provided for in any
statute or law in effect at the time of execution of this Agreement.or any amendment
thereof or any other statute or law that may be hereafter enacted during the term of this
Agreement.
17, Waste, Hazardous Materials
Licensee, at its sole cost and expense, shall comply with all applicable laws, regulations,
rules, and other requirements, with respect to the. use of the Licensed Premises,
regardless of when they become or became effective, including, without limitation, those
relating to health, safety, noise, environmental protection, waste disposal, and water and
air quality, and furnish satisfactory evidence of such compliance upon request of County.
Licensee shall not commit; or suffer or permit the commission of any waste upon the
Licensed Premises, or any nuisance or other act or thing that may disturb the quiet
enjoyment of the use of the Airport or surrounding property. Licensee shall not, and
shall. ensure that no others shall, store or dispose of any Hazardous Materials on the
Licensed Premises. The term "Hazardous Materials" shall mean any hazardous or toxic
substance, hazardous or radioactive material, hazardous waste, pollutant or contaminant
at any concentration that is, or during the term of this Agreement becomes, regulated by
any local or regional government authority having jurisdiction over the Licensed
Premises, by the State of California, or by the United States.
Page 13 of 20
Licensee shall not permit any activity on the Licensed Premises that directly or indirectly
produces unlawful amounts or levels of air pollution (gases, particulate matter, odors,
fumes, smoke, or dust), water pollution, noise, glare, heat emissions, radioactivity, or
trash or refuse accumulations, or vibration that is hazardous or dangerous by reason of
risk of explosion, fire, or harmful emissions.
18. Default
In the event of Licensee's breach of any of the covenants or conditions herein, County
may revoke the License and remove all persons, Livestock and property from the
Licensed Premises, upon five (5) days written notice to Licensee. Licensee defaults shall
include, but shall not be limited to, failure to pay all fees when due, failure to carry
proper insurance, failure to maintain specified grass heights, failure to remove or dispose
of dead Livestock as directed by the Commissioner, failure to properly maintain the
Licensed Premises, failure to notify and obtain approval of County and the State
Department of Fish and Game prior to any wildlife or vegetation control, and failure to
comply with any other term and condition of this Agreement.
19. Entry and Inspection
Licensee agrees that County, its agents, and employees may enter upon the Licensed
Premises at any time to inspect, make any changes or alterations or repairs which
County considers necessary for the protection, improvement or preservation thereof, or
to post any notice provided for by law, or otherwise to protect any and all rights of
County. Licensee shall not be entitled to any abatement of consideration by reason of
the exercise by County of any such rights herein reserved. Nothing herein contained
shall be construed to obligate County to make any changes, alterations or repairs to the
Licensed Premises.
20. Suspension or Limitation of Use
County shall have the right, in County's sole discretion, to suspend or to limit the use of
the Licensed Premises by Licensee without compensation to Licensee, for a reasonable
amount of time, as solely determined by County, for the protection of public safety or for
the construction, installation, operation, maintenance, or repair of Airport facilities on or
near the Licensed Premises or to rest a particular Pasture(s) to meet a conservation
value. Should such suspension or limitation be necessary, County will provide Licensee
fifteen (15) days prior written notice, except prior written notice will not be required in
cases of emergency.
21. Revocable Use
County may revoke the License granted hereunder at any time, for any reason or no
reason, with or without cause; upon thirty (30) days written notice to Licensee. County
may revoke this License at any time upon five (5) days written notice upon a breach of
any term or condition of this Agreement. The installation or construction of any
equipment or fixtures by Licensee pursuant to this Agreement shall not render this
revocable license irrevocable, and shall not be deemed a conveyance of any property
Page 14 of 20
right to Licensee. In the event of revocation, Licensee shall have no right to, and shall
not seek, reimbursement of any expenses of Licensee, or for any other purpose.
22. Security
County shall have no obligation to provide security to the Licensed Premises. Licensee
shall provide for the total security of the Licensed Premises, and shall provide, through
the use of fences and gates, security against the unauthorized pedestrian and vehicular
access onto and over.any portion of the Licensed Premises.
23. Permits and Approvals
Licensee shall be responsible for obtaining any permits or approvals from any agency
having jurisdiction over the Licensed Premises. This Agreement does not .constitute
governmental approval by Contra Costa County of this use.
24. Indemnification
Licensee shall indemnify, defend, save, protect and hold harmless County and its officers,
agents and employees from any and all claims, costs, and liability for any damages,
injury or death arising directly or indirectly from or connected with Licensee's use or
occupancy of the Licensed Premises and shall reimburse County for any expenditures,
including costs and attorneys' fees, County may make by reason of such matters and, if
requested by County, will defend any such suits at the sole cost and expense of
Licensee.
Licensee hereby acknowledges that the presence of Livestock on a public road can create
serious driving conditions for vehicles that can result in injuries and death to people and
damage to property. Licensee hereby agrees to take all necessary precautions to ensure
that Livestock do not enter onto any public road, including but not limited to Armstrong
Road, Byron Hot Springs Road and North Bruns Road, from the Licensed Premises.
Licensee hereby specifically accepts all liability and obligations related to the existence of
Licensee's Livestock on any public road, including, but not limited to, Armstrong Road,
Byron Hot Springs Road and North Bruns Road, and shall hold County entirely harmless
from any injuries, damages, or liabilities resulting from the presence of Licensee's
Livestock thereon. .
This indemnification. provision shall survive the termination or expiration of this
Agreement.
25. Insurance
Licensee shall, at no cost to County, obtain and maintain during the entire duration .of
this Agreement, the following insurance coverages:
A. General Liability: Comprehensive General Liability insurance with minimum
combined single-limit coverage of One Million and No/One Hundredths_ Dollars
($1,000,000.00) for all claims and losses due to bodily injury or death to any
Page 15 of 20
person, or damage. to property, including loss of use thereof arising out of each
accident or occurrence.
B. Worker's Compensation: Worker's Compensation insurance that may be required
by law.
C. Certificates: Licensee shall name County and its officers, agents, and employees
as additional insureds under all policies held for the Licensed Premises. All
coverage shall provide for thirty (30) days written notice to County of cancellation
or lapse in coverage. A Certificate of Insurance for each of the policies hereunder
required, indicating the name and telephone number of the insurance agent most
responsible for the insurance policy and evidencing such coverage, shall be
furnished to County prior to the Effective Date of.this Agreement.
26. Notices
All notices (including requests, demands, approvals or other communication) under this
Agreement shall be in writing.
A. Notice shall be sufficiently given for all purposes as follows:
(1) When delivered by first class mail, postage paid, notice shall be deemed
delivered three (3) business days after deposit in the United States Mail.
(2) When mailed by certified mail with return receipt requested, notice is
effective on receipt if delivery is confirmed by a return receipt.
(3) When delivered by overnight delivery by a nationally recognized overnight
courier, notice shall be deemed delivered one (1) business day after deposit
with that courier.
(4) When personally delivered to the recipient, notice shall be deemed
delivered on the date personally served.
B. The place for delivery of all notices given under this Agreement shall be as
follows:
County: Director of Airports
Contra Costa County Airports
550 Sally Ride Drive
Concord, CA 94520
Telephone (925) 646-5722
With Copies to County's Range Manager, as designated by County throughout the
term of this Agreement.
Licensee: Joseph and Patricia Borges
3130 Byer Road
Byron, CA 94514
Page 16 of 20
(925) 634-3072 Home
(209) 481-9980 Cell
. (925) 515-1182 Facsimile
27. County Provisions for Airport
A. County reserves the right to further develop or improve the Airport as it sees fit,
regardless of the desire or view of the Licensee and without interference or
hindrance.
B. County reserves the right, but shall not be obligated to Licensee, to maintain and
keep in repair the landing area of the Airport and all publicly-owned facilities of
the Airport, together with the right to direct and control all activities of Licensee in
this regard.
C. This Agreement shall be subordinate to the provisions and requirements of any
existing or future agreement between the County and the United States, including
but not limited to the Federal Aviation Administration, relative to the development,
operation or maintenance of the Airport.
D. There is hereby reserved to County, its successors and assigns, for the use and
benefit of the public, a. right of flight for the passage of aircraft in the airspace
above the surface of the Licensed Premises. This public right of flight shall include
the right to cause in said airspace any noise inherent in the operation of any
aircraft used for navigation or flight through the said airspace or landing at, or
taking off from, or operating on the Byron Airport.
E. Licensee agrees to comply with the notification and review requirements covered
by 14 CFR Part 77 of the Federal Aviation Regulations in the event future
construction of a building is planned for the Licensed Premises, or in the event of
any planned modification or alteration of any present or future building or
structure situated on the Licensed Premises.
F. Licensee shall not erect nor permit the erection of any structure or object, nor
permit the growth of any tree on the Licensed Premises to exceed the established
height contours. In the event the aforesaid covenants are breached, County
reserves the right to enter upon the Licensed Premises and to remove the
offending structure or object and/or cut the offending tree, all of which shall be at
the sole cost and expense of the Licensee.
G. Licensee shall not make use of the Licensed Premises in any manner that might
interfere with the landing and taking off of aircraft from the Airport, or otherwise
constitute a hazard. In the event the aforesaid covenant is breached, County
reserves the right to enter upon the Licensed Premises, and cause the abatement
of such interference at the sole cost and expense of Licensee.
H. Nothing herein shall be construed to grant or authorize the granting of an
exclusive right within the meaning of Section 308a of the Federal Aviation Act of
1958 (49 U.S.C. § 1349A).
Page 17 of 20
I. This Agreement and all provisions hereof shall be subject to whatever right the
United States Government now has or.in the future may have or acquire, affecting
the control, operation, regulation and taking over of said Airport or the exclusive
or non-exclusive use of the Airport by the United States during the time of war or
national emergency. In the event the United States Government acquires or takes
over the Airport during a time of war or national emergency, the Fee shall be
abated in proportion to that portion of the. Licensed Premises unavailable for
Licensee's use for the period of such acquisition or control by the United States
Government.
J. County reserves the right to take any action it considers necessary to protect the
aerial approaches to the Airport against obstruction, together with the right to
prevent Licensee from erecting or permitting to be erected any building or other
structure on the Licensed Premises which, in the opinion of the County, would
affect the usefulness of the Airport or constitute a hazard to aircraft.
K. Nothing herein contained shall in any way affect the right of the County to use the
Licensed Premises covered by this Agreement in the performance of anything
pertaining to the operation of the Airport with full right of ingress and egress over
the same; the County also reserves the right to perform any work on said
Licensed Premises that the County may see fit without being liable to Licensee in
any way for any damage which may be caused to any vegetation or other
improvements Licensee may have made or placed upon said real property.
28. Assignment and Subletting
No rights or interest of Licensee hereunder shall be transferred or assigned, nor shall the
Licensed Premises or any portion thereof be sublet, nor shall Licensee permit the use of
any part of the Licensed Premises by any third party or parties for any purpose, without
the prior written consent of County, which may be withheld in County's sole discretion.
29. Non-Discrimination
Licensee, as part of the consideration for the License, agrees that no person on grounds
including, but not limited to, race, color, sex or national origin, shall be excluded from
using, denied the benefits of, or be otherwise subjected to discrimination in the use of the
Licensed Premises. In the event of any breach of this non-discrimination covenant, County
shall have the right to terminate this Agreement without compensation to Licensee.
30. Navigational Aids
County has the right at any time to install, at its sole expense, air navigational aids
including lighting, in, on, over, under, and across the Licensed Premises. In the exercise
of any of the rights hereof, County agrees to give Licensee no less than thirty (30) days'
written notice of its intention to install such air navigational aids, and to coordinate such
installation with Licensee; provided, however, that no such installation shall unreasonably
interfere with Licensee's use.
Page 18 of 20
31. Governing Law
The laws of the State of California shall govern the interpretation and enforceability of
this Agreement. The venue for. any legal action between the parties pertaining to this
Agreement shall be Contra Costa County, which courts shall have exclusive jurisdiction
over such legal action.
32. Non-Waiver of Breaches
County's failure to insist, in any one or more instances, upon strict performance of any of
the terms or conditions of this License shall not be considered as a waiver of any
subsequent breach as to the same or any other term or condition, but the same shall
continue and remain in full force and effect. No waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by County.
33. No Modification
This Agreement shall not be modified or amended.without the mutual written consent of
both parties.
34. No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer on any person, other
than County and Licensee, and their respective successors-in-interest, any rights or
remedies under or by reason of this Agreement.
35. No Warranties
County does not warrant or represent that the Licensed Premises are safe, healthful or
suitable for the purpose for which they are permitted to be used under the terms of this
Agreement. Licensee hereby acknowledges and agrees that County, including without
limitation its officers, employees and agents, has not made, and County hereby disclaims
making, any representations or warranties, express or implied, concerning (i) the
physical, geological or environmental condition of the Licensed Premises, (ii) the present
or future capacity or suitability of the Licensed Premises for Livestock grazing, (iii) the
feasibility, cost or legality of constructing any Improvements on,the Licensed Premises if
required for Licensee's use permitted under this Agreement, (iv) the condition of any
fences, roads, gates or range Improvements, or (v) any other matter whatsoever relating
to the Licensed Premises or its use, including, without limitation, any implied warranties
of fitness for a particular purpose.
36. Severability
If any term, covenant or provision of this Agreement, which does not materially affect
the consideration for this Agreement, is held to be invalid, illegal or unenforceable in any
respect,'the validity of the remainder of this Agreement shall not be affected thereby.
37. Revocation of Prior Licenses
Upon the Effective Date, those certain license agreements entered into between County
and Borges Angus Ranch, (Licensee's predecessor in interest, which were effective
February 1, 1997, for Pastures 1-4 and 7-12, as shown on Exhibit "A" attached to those
license agreements, are hereby immediately revoked. Notwithstanding anything to the
Page 19 of 20
contrary in those prior license agreements, in the event the Effective Date of this
Agreement, and the revocation of the prior license agreements, occurs prior to the end of
the month in which any fees under the prior license agreements have been paid, County
shall retain those fees as payment for the use of the Licensed Premises during the partial
month following the Effective Date.
38. Entire Agreement
It is understood that this document (including the exhibits hereto), which is subject and
subordinate to the Easement, contains the entire agreement between the parties hereto
and all prior understandings or agreements, oral or written, of whatsoever nature
regarding the rights hereby granted are superseded by this Agreement and are hereby
abrogated and nullified.
IN WITNESS WHEREOF, the parties hereto.have executed this Agreement, in duplicate, the day
and year first above written.
COUNTY: LICENSEE:
CONTRA COSTA COUNTY 7oseph C. Borges and Patricia A.
Borges
BY Y B
Keith Freitas oseph C. 96rges
Director of Airports
By/-
I
Recommended for Approval ` Patricia A. Borges U
By Date (0 1
Karen A. Laws (Dat sighed by Licensee)
Principal Real Property Agent
By
Beth Lee
Airport Business and
Development Manager
Approved as to form:
Silvano B. Machesi
County Counsel
By
Pamela Zaid!;' :)
Deputy County Counsel
CP:sr
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Page 20 of 20
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