BILL NO

BILL NO. 3772 ORDINANCE NO. _____________

A REVISED ORDINANCE AUTHORIZING THE MAYOR OF THE CITY OF WEST PLAINS, MISSOURI TO EXECUTE A CONTRACT ON BEHALF OF THE CITY WITH HOOVER BROS. FARMS, INC. FOR UTILITY EASEMENT PURCHASE AND PLACEMENT OF LINES, WATER LINE, HYDRANT, USE OF CITY PROPERTY FOR LIVESTOCK, AND ALTERING A PREVIOUS REAL ESTATE CONTRACT DATED DECEMBER 18, 2000. (NORTH WATER WELL #14 AT THE WEST END OF COUNTY ROAD 1300) (PREVIOUS ORDINANCE 3769 WAS NOT FULLY EXECUTED)

BE IT ORDAINED BY THE COUNCIL OF THE CITY OF WEST PLAINS, MISSOURI AS FOLLOWS, TO-WIT:

Section 1: That the Mayor of the City of West Plains, Missouri is hereby authorized on behalf of the City of West Plains to execute a contract (EXHIBIT A) with the Hoover Bros. Farms, Inc.

Section 2: This Ordinance shall take effect and be in force after its passage and adoption and signing by the presiding officer.

PASSED AND APPROVED THIS ______ DAY OF _______________, 2002.

CITY OF WEST PLAINS, MISSOURI

____________________________________

MAYOR JOE PAUL (J. P.) EVANS

ATTEST:

_____________________________

CONNIE SHELTON, CITY CLERK

CONTRACT FOR UTILITY EASEMENT

THIS CONTRACT made and entered into this 16TH day of August, 2002, by and between the CITY OF WEST PLAINS, MISSOURI, a municipal corporation, referred to as CITY, and HOOVER BROTHERS FARMS, INC., a Missouri corporation, referred to as HOOVER.

WITNESSETH:

WHEREAS, pursuant to a contract with CITY dated December 18, 2000, HOOVER previously conveyed to CITY a 1/2 acre parcel of real estate upon which CITY has located a water well, referred to as the well site, and;

WHEREAS, HOOVER presently owns land across which CITY needs to locate utility easements going to and from the well site with the approximate location of the easements to be as shown on attached Exhibit A, with a legal description for the easements to be contained in the easements.

Now therefore, CITY and HOOVER agree as follows:

1. EASEMENTS. HOOVER shall convey to CITY permanent raw water utility easements. The utility easements shall be permanent easements twenty (20) feet in width with an additional twenty 20) foot temporary easement adjacent to the permanent easement for purposes of installing the water line. CITY will be responsible for installing all water lines along the easements in question and as outlined on Exhibit A.

2. TITLE SEARCH. HOOVER represents that it has marketable title to the real estate in question and has the unencumbered right to convey the easements in question to CITY. CITY shall be responsible for obtaining such title report or search that CITY deems necessary.

3. PAYMENT TO HOOVER. Upon the signing of this agreement, CITY shall pay to HOOVER the sum of Seven Thousand Eight Hundred Dollars ($7,800.00) and HOOVER shall execute the easements to be obtained by CITY.

4. WATER TO SALE BARN. At HOOVER’S expense, HOOVER shall be allowed to construct a water line and connect it to the CITY’S raw water line that will be constructed on the easements obtained from HOOVER for the purpose of providing raw water to HOOVER’S sale barn for consumption by livestock only. The parties understand that the water to be provided to HOOVER is not potable. HOOVER shall be responsible for the construction and maintenance of the line running from the easement to the sale barn including, but not limited to, the purchase and installation of pipe, and the permitting and boring required for running the line under the railroad tracks. The water provided to the sale barn will be metered and the water used will be sold to HOOVER by CITY at a rate in accordance with the other water rates charged by CITY to its water customers.

5. HYDRANTS. At CITY’S expense, CITY will install three (3) water hydrants along the easement to be obtained from HOOVER to be used by HOOVER only for the purpose of providing water to its livestock at that location. HOOVER will not be charged for this water as long as it is used only for consumption by cattle owned by HOOVER. HOOVER shall be responsible for maintaining the hydrants and for limiting use to livestock only.

6. USE OF TREE SHADED AREA. HOOVER will be allowed to use the West 200 feet of the old city landfill owned by CITY to provide shade for HOOVER’s livestock for a period of ten (10) years from the date of this agreement. HOOVER will be responsible for moving and maintaining the fence so as to allow its livestock use of this area. At the end of the ten (10) year period, HOOVER will be responsible for moving the fence back to its original location.

7. RELOCATION OF EASEMENT. Upon receiving eight (8) months prior notice from HOOVER, CITY agrees that it will relocate the water line easements obtained pursuant to this agreement in order to accommodate future development or construction by HOOVER. The easement for relocation shall be given to CITY by HOOVER and the expense of such relocation will be divided equally between HOOVER and CITY.

8. PRIOR AGREEMENT FOR POTABLE WATER LINE. CITY shall be relieved of its responsibility under the last sentence of Paragraph 1 of the real estate contract dated December 18, 2000, between CITY and HOOVER to install a potable water line through the railroad bore to the east side of the railroad right-of-way for use by HOOVER. This is the railroad bore CITY will have done in order to bring the new raw water line to the Highway 14 junction well. However, if HOOVER desires potable water on the east side of the railroad at some future date, CITY will permit the placement of a potable water line(s) within the railroad bore casing so long as it does not interfere with CITY’s raw water line that will be located in the railroad bore casing.

9. LIQUIDATED DAMAGES. If any party defaults and fails to comply with the terms of this, then the expenses actually incurred by the other party in connection with this contract shall be reimbursed by the defaulting party as liquidated damages, it being agreed that actual damages are difficult if not impossible to ascertain. This paragraph shall not waive or in any way affect any party’s right to specifically enforce the terms of this Contract.

If either party should file suit to enforce the terms of this contract, the prevailing party shall be entitled to recover its attorney fees and court costs from the other party.

Time is of the essence of this Contract.

10. This Contract shall be binding upon the successors and assigns of the parties. The terms of this contract shall survive beyond the time at which the easements are executed by HOOVER and payment is made by CITY to HOOVER.

11. This agreement may be executed in counterparts, all of which together constitute one agreement. This contract may be executed by facsimile, which is considered an original signature.

12. All documents and papers referred to in this agreement are to be delivered to Cantrell & Oberzalek, Attorneys, P.O. Box 1030, Mountain View, Missouri, 65548, phone number (417)934‑2226, fax number (417)934-6223 or to West Plains City Hall.

IN WITNESS WHEREOF, the parties have subscribed their names.

HOOVER BROTHERS FARMS, INC. CITY OF WEST PLAINS

By:______________________________ By:____________________________

ATTEST: (Seal)

_______________________________

Connie Shelton, City Clerk