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Res 153-2007 10/16/2007 RESOLUTION NO. 153-2007 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING THE LEASE FOR HOME SITES AT LAKE ARROWHEAD; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, staff is recommendirig Council approve the suggested changes to the leas� agreement for the lease of home sites at Lake Arrowhead to promote continuity and ease of implementation; and, WHEREAS, the legal department has edited, reviewed and approved requested changes; and, WHEREAS, the City Council of the City of Wichita Falls, Texas, deems it reasonable and in the public's best interest to approve the lease as requested and herein presented. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. That certain lease agreement, a copy of which is attached hereto, for the lease of home sites at Lake Arrowhead, is approved, and the City Manager is hereby authorized to execute leases on this form on behalf of the City of Wichita Falls. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 16 day of October, 2007. MAYO R ' ATTEST: � Ci Clerk 25-Year Term (Under 40K) July 1, 2001 LAKE ARROWHEAD LEASE STATE OF TEXAS § COUNTY OF WICHITA § This Lease Agreement, made and entered into on the day of January, 2007, by and between the City of Wichita Falls, a municipal corporation, acting through its City Manager, hereinafter called "Lessor", and of , hereinafter called "Lessee", WITNESSETH: Lessor does hereby lease to Lessee the following described real property located in Clay County, Texas, to wit: Lot No. , Block , Lake Arrowhead - North, Clay County, Texas, according to the �m_ap on file in the ��*�• �''°rU'° ����°�ffice of Lake Lot Administration of the City of Wichita Fa11s, hereinafter called "premises", upon the terms and conditions hereafter set out. i. GENERAL PURPOSE. The parties hereto (Lessor and Lessee) recognize and acknowledge that the primary purpose of Lake Arrowhead is to supply the City of Wichita Falls with water for human consumption. 2. TERM. The term of this lease is for a period of 25 years beginning on January, 2007A� and ending onJanuarv, 20 . If Lessee has maintained this lease in good force and effect, then upon the expiration thereof, the Lessee shall have the preferential right to acquire a continuing lease on the premises upon such terms and conditions as may then be offered by Lessor to Lessee at Lake Anowhead. 3. RENTAL. Lessee agrees to pay City as annual rental under this agreement the sum of Six Hundred Dollars ($600.00), said rental payable in advance of each year on or before �rie-�-September 30 at the office of the Lake Lot Administration, 1300 Seventh Street, Wichita Falls, Texas, (or at such other place as may be designated in writing by the City). The initial rental shall be prorated for the number of months from the date of this lease to the next � �September 30 due date. Commencing with the rental due on or before �-�September 30, 2009, and each five (5) years thereafter during the term of this lease, the Lessor may increase the annual rental by an amount that does not exceed thirty percent (30%) of the rate in effect for the preceding five (5) year period, or less if during the initial term prior to ��September 30, 25-Year Term (Under 40K) July 1, 2001 2009. The amount of the rate increase shall be set by the Lessor by action of the City Council of Wichita Falls. Notification shall be given to Lessee at least ninety (90) days prior to the effective date of the rental rate increase. Failure to notify Lessee shall not affect the validity of any rental increase. 4. ADDRESSES. The address listed below Lessee's signature on this lease agreement shall be used for all notices and/or correspondence required between Lessor and Lessee. The Lessee shall notify the Lessor of any change of address of Lessee. Such notice shall be on a chang� of address form provided by the Lake Lot Coordinator and executed by Lessee and the Lake Lot Coordinator for the Lessor. Such changes of addresses shall be maintained in the files of the Lake Lot Coordinator. All notifications hereunder will be presumed to be correct if sent to the Lessee's address as reflected by the records of the Lake Lot Coordinator. Notices to the Lessor shall be to the Office of the Lake Lot Coordinator unless otherwise designated by Lessor on a form provided by the Lake Lot Coordinator and receipt thereof acknowledged by the Lessee. 5. RECORDING. Neither the Lessor nor the Lessee shall be required to record this lease in the records of Clay County, Texas; provided, however, that upon request by Lessee, the lease shall contain the appropriate acknowledgments which would permit recording in Clay County, Texas. If Lessee elects to record such lease, a copy thereof shall be furnished to the Lake Lot Coordinatar and maintained in the Lake Lot Administration files. Likewise, a change of address form of any subsequent amendment of this lease between Lessor and Lessee shall at the request of Lessee be in recordable form and may be recorded in like manner and filed with the Lake Lot Coordinator. 6. NOTIFICATION. Lessor shall not be required to send Lessee a notice of the annual rental payments due under this lease except for the rental increases as noted above. If Lessee fails to timely pay a rental under this lease, a late notice will be sent by the Lake Lot Administration office by certified mail to the last address of Lessee on file with the Lake Lot Coordinator. The Lessee will have until 3�;�-�-October 31 to pay the delinquency, along with a late fee of One Hundred Dollars ($100.00). If the payment of the delinquency and late fee are not received by the Lake Lot Coordinator on or before 3�-�October 31, this lease shall be deemed terminated without further action by Lessor. 25-Year Term (LTnder 40K) July 1, 2001 7. USE. Lessee shall not use the leased premises nor any part thereof for commercial purposes, but only for residential purposes. 8. CONSTRUCTION. Buildings, structures, and facilities, installed or constructed on the leased premises, shall be of sound and substantial construction and be done in accordance with plans and specifications approved by Lessor. Plans for buildings, structures, and facilities shall meet the minimum standards provided for similar construction within the City of Wichita Falls, and shall be approved by the Building Inspection Department of the City of Wichita Falls prior to the construction or installation. Such plans and specifications shall be furnished by Lessee at Lessee's expense. All construction and improvements made to the premises shall comply with all applicable City, State, and Federal building, health, and sanitation rules and regulations. No building, structure, or facility shall be constructed or installed without Lessee obtaining a proper permit for such work from the applicable department of the City of Wichita Falls. Ail buildings, structures, and facilities shall be constructed substantially in accordance with the plans and specifications previously approved by Lessor in good and workmanlike manner, and shall be properly maintained in good repair and appearance by Lessee. During the term of this lease, the Lessee agrees to correct any substandard or otherwise undesirable conditions resulting from failure to properly maintain structures, grounds, or facilities. If on the date of this lease, there are buildings, structures, and/or facilities located on the premises, the Lessor shall have the Building Inspection Department and such other departments as are appropriate, inspect the property to determine if such buildings, structures, and facilities meet the minimum standards set by the City of Wichita Falls. If such inspection reveals failure to meet such minimum standards, then a report shall be given to Lessee of the needed repairs to meet such standards. Lessee shall have one year after receipt of such inspection report to bring the premises up to the minimum standards set forth in the inspection report, provided that for good cause the City Council of Wichita Falls or its designated representative may extend such time period an additional six (6) months. Lessee shall pay the appropriate City fees for all permits and inspections save and except the initial inspection provided for above. Failure to comply with these requirements shall be cause for termination of this lease. A manufactured home may be installed on the premises provided that: it has been manufactured as a manufactured home by a commercial manufacturer after June 15, 1976; it is at least 10' wide and 26' long; and it does not have self contained fuel, water supply or sewage 25-Year Term (LTnder 40K) July 1, 2001 facilities. No additions may be built onto such manufactured home other than skirts or other enclosure of the space beneath the manufactured home and roofs, steps, porches, patio covers and carports. 9. MAINTENANCE. Lessee shall keep the premises clean of trash, rubbish, garbage, and waste matter of all kinds and will provide such facilities for the disposal of this matter as Lessor shall require. Lessee further agrees to maintain the shoreline, immediately adjacent land and water free of garbage, trash, or other waste. Lessee shall not discharge, nor allow to be discharged any waste of any kind into the waters of Lake Arrowhead, and agrees to abide by all rules, regulations, or other laws related to the maintenance of water quality in Lake Arrowhead as established by Lessor and other local, State, and Federal agencies with jurisdiction over same. Lessee shall indemnify Lessor for any cost associated with the clean-up of any pollution caused by Lessee's use of the premises. Lessee acknowledges that Lessor shall have no obligation to furnish any solid waste collection or disposal system. Lessee shall keep the weeds on the premises mowed to a height not exceeding nine (9) inches, and shall not allow or maintain on the premises any dangerous or dilapidated buildings, structures, or facilities as determined by Lessor in applying the applicable City of Wichita Falls and State rules and regulations. Outdoor storage, as defined by Section 46-157 of the Code of Ordinances of the City of Wichita Falls, including but not limited to the accumulation of abandoned or junked vehicles, household furniture, appliances or parts thereof, shall not be permitted on the premises. Lessor shall notify Lessee in writing of Lessee's failure to comply with any of the above provisions as to maintenance of the premises. Lessee shall have ten (10) days in which to correct the situation set forth in the notice from Lessor (or longer period set by Lessor if such default is of a nature that it cannot be corrected within such period) and if Lessee fails to make necessary corrective action within said time period, then Lessor may make such corrections. Lessor shall be entitled to recover its costs of labor, materials, equipment, and administration in correcting such situation and payment shall be made within thirty (30) days of receipt of statement of such cost by Lessee. Any inspections after the initial inspection by Lessor shall be paid for by Lessee at the rates provided for by the appropriate department of Lessor. In the alternative, Lessor may terminate this lease or choose other remedies available herein or by law. 10. SEWAGE DISPOSAL. Lessee shall be required to adhere to all City, State, and Federal environmental rules and regulations as to the sanitary disposal of sewage. As of the date 25-Year Term (Under 40K) July 1, 2001 of this lease. septic tanks shall be the only sewage disposal facilitv used on the premises, and such facilities shall be in accordance with the applicable City, State. and Federal requirements and be maintained in proper operating condition at all tiines. All sewage disposal systems shall be inspected at the beginning of the lease, when the lease is transferred, or whenever there is cause to believe that the sewage disposal system is in non-compliance with the applicable City, State, or Federal environmental rules and regulations as to sanitary disposal of sewage. Fees shall be assessed and paid by the Lessee to the Health Department or such other agency as is appropriate for conducting such inspections. 11. ASSIGNMENT. Lessee shall have the right to assign, or convey Lessee's leasehold rights hereunder as to the premises, provided that such assignment or conveyance shall be filed in the office of the Lake Lot Administration. No assignment or conveyance shall be effective until such time as the premises have been inspected and found to be in compliance with the terms and provisions of this lease, and payment has been made of a transfer fee of Two Hundred Dollars ($200.00), and all inspection fees as appropriate hereunder. Lessee shall remain primarily responsible for the terms and provisions hereunder until such time as the assignment or conveyance has been approved as provided for herein for the payment of the appropriate charges. The party assuming the rights and responsibilities of Lessee hereunder by such assignment or conveyance shall execute an acknowledgment of such assumption under the terms of this lease on a form as provided by the Lake Lot Coordinator. All forms provided for under this assignment provision may be recorded in Clay County, Texas, and shall be in a form to permit such recording. Any transfer of ownership occurring as a result of the death of Lessee under his or her Will, or the statutes of descent of distribution of the State of Texas, shall not be considered as assignment hereunder, and any such person taking ownership by virtue of the death of Lessee shall be bound by the obligations of this lease and the rights hereunder. Any party acceding to the rights of Lessee as a result of the death of the Lessee shall file with the Lake Lot Coordinator within one year of the Lessee's death, notice of such ownership and assume responsibilities and rights under the lease on a form as provided by the Lake Lot Coordinator. 12. ROADS AND RIGHT-OF-WAYS. Lessor shall provide maintenance for the primary roads serving the premises; however, Lessor shall not be obligated to any higher standard of maintenance than it cunently provides. Lessor shall have the right to sublet the maintenance of such roads to Clay County or other responsible authorities. Lessee is granted a 25-Year Term (Under 40K) July 1, 2001 non-exclusive right-of-way over the roads, and if the leased premises do not adjoin the primary roads, the Lessee is granted the right-of-way from said primary roads to the leased premises. The Lessee shall be responsible for the maintenance of any such right-of-ways from the primary road to the leased premises. If the leased premises are adjacent to the waters of Lake Arrowhead, then Lessee is granted a non-exclusive right-of-way, easement and right of use of the lands between the leased premises and the waters of Lake Arrowhead. Such right-of-way, easement, and usage shall be in accordance with the rules and regulations adopted by the Lessor, and shall provide for the safety and non-pollution of the waters of Lake Arrowhead. Lessee expressly understands and agrees that if the Lessor decides to expend funds to improve the roads, that Lessor may, but is under no obligation to, expend funds to improve the roads, that Lessor may, but is under no obligation to, expend funds in excess of those realized from the rental received from Lake Arrowhead lease lot rentals on a per annum basis, less any amount expended to provide other services hereunder, and under similar leases. Any decision as to improving the roads shall be within the sole discretion of the City Council of Wichita Falls. 13. WATER LEVEL. It is further agreed and understood by and between the Lessor and Lessee that in the event, through appropriate action by the City Council of Wichita Falls, a determination is made to raise the water level in Lake Arrowhead by raising the dam thereof to a level that would cause flooding of the leasehold rights of Lessee, then Lessor shall give Lessee notice in writing by a certified letter to the address of Lessee as reflected by the records of the Lake Lot Coordinator set forth herein. The notice shall advise Lessee of the actions of the City Council of Wichita Falls and set a date for the removal of the improvements on the premises owned by Lessee which will be necessary as a result of the proposed action of the City Council of Wichita Falls. In the event Lessee fails to remove Lessee's property as provided for in said notice within one hundred twenty (120) days or such additional time period as set by said notice, Lessor may remove the same and Lessee agrees to pay Lessor for the cost thereof, including the reasonable cost of supervision. 14. TAXES. Lessee agrees to pay and discharge all taxes and assessments which now or hereafter may be taxed, assessed, levied, or imposed upon the premises or any improvements placed thereon. 15. FINANCING. The other provisions of this lease notwithstanding, Lessee may secure any obligation to finance improvements upon the premises by a lien upon such 25-Year Term (Under 40K) July 1, 2001 improvements and upon Lessee's rights in the lease premises. Photocopy of any such obligations must be on file with the Lake Lot Administration's office, together with the current name and address of the lienholder, and the receipt of which shall be acknowledged by the Lessor by the execution of the "Consent to Mortgage of Leasehold Estate" form provided by the office of the Lake Lot Coordinator. Lessor shall, provided that the "Consent to Mortgage of Leasehold Estate" form has been executed, notify the lienholder in writing of any default in Lessee's obligation under this lease. The lienholder shall have ninety (90) days upon receipt of said notice within which to cure said default and, should said default not be cured within such ninety (90) days period and should the lease be terminated as a result thereof, the lienholder shall have an additional thirty (30) days to remove the improvements covered by the lien from the leased premises, provided that the condition of the leased premises shall not, as a result of such removal, be made substantially poorer than its condition at the commencement of the lease. Provided further that if the lienholder is authorized under the obligation executed by the Lessee, the lienholder may succeed to the rights of Lessee under the lease and assume the obligations of the Lessee and the rights of Lessee as provided for herein, including the reinstatement of the lease as provided for above. At the request of the Lessee and/or lienholder, all instruments involved in regard to such obligations, including the "Consent to Mortgage of Leasehold Estate" shall be in a form that may be recorded in Clay County, Texas. 16. SURVEY. The �s map on file in the office of the Lake Lot Administration of the Citv of Wichita Falls as to lots and blocks of Lake Anowhead shall control as to the location of same and Lessor will be under no obligation to conduct a survey of the premises. If Lessee elects to conduct a survey of the premises at Lessee's cost and expense, then a copy thereof shall be furnished to the office of the Lake Lot Administration. 17. LIEN FOR RENTALS. Lessee agrees that all buildings or other improvements erected on the premises are charged with a lien in favor of the Lessor for payment of all rentals and/or fees provided for hereunder that may be owed by Lessee to the Lessor under this lease. Said lien shall be subject to any deed of Trust or Mechanic's Lien for the purchase price or construction of such buildings or improvements. 18. MISCELLANEOUS RULES AND REGULATIONS. Lessee agrees to obey the following rules and regulations: 25-Year Term (Under 40K) July 1, 2001 a. No farm stock shall be kept on said premises except as mav be sanctioned in writin�by a health official of the City of Wichita Falls. b. Fishin� and hunting shall be subiect to Citv and State laws and rerulations. c. Said premises shall not at anv time be used in anv manner or for an�urpose in conflict with or contrarv to the penal statutes of the State or Federal �overnment. d. Lessee shall not make anv use of the premises v�-hich «-ould constitute a nuisance. e. Lessee is under the absolute obli�ation to use the leased premises in a manner that shall prevent the pollution of the waters of Lake Arrowhead in any manner. £ Lessee may use water from Lake Arrowhead on the premises onlv for the watering of trees. shrubs, and �rass, but no ���ater will be used off the premises b�T Lessee. Lessor in no way_�uarantees the accessibilitv of water to the leased premises or the level of water in Lake Arrowhead. �,�Lessee shall comply with the publication "Lake Arrowhead Rules, Regulations And Building Restrictions" as published by the City of Wichita Falls including all existing or future amendments thereto. h. Lessee shall not keep more than four dogs ten (10) weeks of age or older on the premises. 19. BREACH OF COVENANTS. If Lessee breaches any express or implied covenant of this lease, the Lessor shall have the right to terminate this lease, giving the appropriate notices to Lessee as provided for herein. After the appropriate notices as provided for herein and the time periods have expired for late payment, or the time to cure breaches set forth by Lessor, then Lessor shall proceed to dispose of Lessee's interest in the premises in the following manner: Lessee shall have sixty (60) days from the date of termination of the lease by Lessor in which to dispose of Lessee's leasehold rights by assignment or conveyance to person or persons acceptable to Lessor and provided that said person or persons shall satisfy the obligations of Lessee as set forth in the notice of termination. Or the Lessee may, at Lessee's election upon receipt of notice of termination, within sixty (60) days of the date of said notice, remove all improvements placed on the premises by Lessee, but in removing such improvements 25-Year Term (Under 40K) July 1, 2001 the Lessee will not damage to any extent any of the property belonging to Lessor or any other person. If Lessor has not made an assignment or conveyance, or elected to remove Lessee's improvements as provided for above within the time period provided, then Lessor shall have the right to enter upon the premises and take possession thereof or at Lessor's option, sell to the highest bidder at either public or private sale, all of Lessee's interest in this lease and the improvements placed thereon. The receipts from the sale shall be applied first to the expense of holding the sale; second to any deed of Trust or Mechanic's Lien outstanding against any buildings or improvements placed on the improvements; third to any indebtedness owed by Lessee to Lessor; and the remainder, if any, shall be paid to Lessee and shall be received by Lessee as full payment of all rights, title and interest of Lessee in and to the leased premises and improvements thereon. Provided, however, that the time periods provided for above shall not prevent Lessor's right to immediate action to abate any nuisance on the premises. 20. LIABILITY FOR TERMINATION. In no event shall Lessor, its agents, servants, or employees be liable for any damages, breach of contract, or any action in the nature of trespass of any kind or character for terminating this lease as provided for herein. 21. INDEMNITY. Lessee represents and agrees that Lessee has thoroughly inspected the premises covered by this lease prior to execution of the lease Agreement, and has found no hazardous conditions which may cause injury to persons or damage to the property, and Lessee accepts the premises in such condition. Lessor makes no warranties, express or implied, concerning the condition of the premises. Lessee also agrees that Lessor shall not be liable in any manner for bodily injury or death to any person or damage to any property (including the person and property of Lessee) caused in whole or in part by any latent ar patent condition or defect on the leased premises or as a result of flooding or high water or as a result of any act or omission of Lessee or Lessee's family members, guests, or licensees, and Lessee specifically agrees to indemnify and hold Lessor harmless from any such claims, demands, or suits for injuries or death to persons or damage to property, regardless of whether such injury, death, or damage was caused or contributed to in part by some act or omission by the Lessor, its officers, agents, or employees. 22. RIGHT OF ENTRY. Lessor, its agents, employees, or representatives may enter the leased premises at any reasonable time for the purpose of inspection to determine that the conditions or provisions of this lease are being fulfilled. 25-Year Term (Under 40K) July 1, 2001 23. APPLICABLE LAW AND VENUE. This Agreement and all transactions made hereunder shall be construed and governed according to the laws of the State of Texas. Venue for any legal proceedings shall be in Wichita County, Texas. 24. LESSOR'S SERVICES. The Lessor may designate other parties to perform the services provided for herein, including those to be performed by the Lake Lot Coordinator. The Lessor, through the City Council of Wichita Falls, may adopt such additional rules and regulations as are appropriate and necessary to carry out the intent of this lease and similar leases. Notice of any changes in the parties responsible for Lessor's duties hereunder and the adoption of any such rules and regulations shall be made by certified mail to the last known address of Lessee, as provided for herein. 25. INVALID PROVISIONS. In the event any covenant, condition, or provision herein contained is held to be invalid by a court of competent jurisdiction, the validity of any such covenant, condition, or provision shall in no way affect any other covenant, condition, or provision. 26. ENTIRE AGREEMENT. This written contract constitutes the entire agreement between the parties. APPROVED AS TO FORM: CITY OF WICHITA FALLS, TEXAS By: Assistant City Attorney Darron J. Leiker, City Manager LESSEE Signature: Address City State Zip 25-Year Term (Under 40K) July 1, 2001 STATE OF TEXAS § COUNTY OF WICHITA § This instrument was acknowledged before me on the day of January, 2007, by Darron J. Leiker, City Manager of the City of Wichita Falls. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF WICHITA § This instrument was acknowledged before me on the _ day of , 20_, by Notary Public, State of STATE OF TEXAS § COUNTY OF WICHITA � This instrument ��-as acknowledged before me on the dav of , 20 , by Notary Public, State of