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Res 073a-94 5/17/19941e. Is RESOLUTION NO. (1, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING THE SECOND GENERATION LAKE KICKAPOO LEASE, AS PREPARED BY THE LAKE LOT STUDY COMMITTEE AND CITY STAFF; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, the City Council appointed a Lake Lot Study Committee to develop a second generation Lake Kickapoo Lease; and, WHEREAS, the Lake Lot Study Committee, along with various City staff members, has now presented a proposed second generation Lake Kickapoo Lease to the City Council for its consideration; and, WHEREAS, the City Council is of the opinion that this second generation Lake Kickapoo Lease serves the best interests of the City and of the present and potential leaseholders at Lake Kickapoo. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. That certain second generation Lake Kickapoo Lease, a copy of which is attached hereto and made a part hereof for all purposes, is hereby approved for the execution of lake lot leases at Lake Kickapoo. 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 17th day of May, 1994. M A Y O ATTEST: d-las_to )(16)-(A- City Clerk 1_ LAKE KICKAPOO LEASE STATE OF TEXAS COUNTY OF WICHITA § This Lease Agreement, made and entered into on the day of 199 by and between the City of Wichita Falls, a municipal corporation, acting through its City Manager, hereinafter called "Lessor, " and hereinafter called "Lessee, " WITNESSETH: Lessor does hereby lease to Lessee the following described real property located in Archer County, Texas, to- wit: Lot No. Block Lake Kickapoo, Archer County, Texas, according to the plat on file in the City Clerk's office of the City of Wichita Falls, hereinafter called premises, " upon the terms and conditions hereafter set out. 1. GENERAL PURPOSE. The parties hereto (Lessor and Lessee) recognize and acknowledge that the primary purpose of Lake Kickapoo is to supply the City of Wichita Falls with water for human consumption. Parties hereto acknowledge that Lessee is in possession of the premises under a prior lease granted by Lessor which has or will expire with the effective date of this lease. 2 . TERM. The term of this lease is for a period beginning on the date of this lease and ending on September 30, 2019, provided that Lessee shall have the option to extend the term of the lease twenty-five (25) years to September 30, 2044. The option to extend shall be considered automatic if lessee is in compliance with the terms and provisions of the lease on the date of the option to extend said lease. 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 Kickapoo. Provided further, that if Lessor should elect to sell its rights by making a fee conveyance, then Lessee shall have the preferential right to acquire on such terms and provisions as offered by Lessor. 3 . RENTAL. Lessee agrees to pay City as annual rental under this agreement the sum of Three Hundred Eighty Five and No/100 ($385.00) for the period from the date of this lease through September 30, 1999, said rentals payable in advance of 2 each year or before September 30 at the Office of the City Clerk, 1300 Seventh Street, Wichita Falls, Texas, (or at such other place as may be designated in writing by 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, 1999, 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 (30%) percent of the rate in effect for the preceding five (5) year period, or less, if during the initial term, prior to September 30, 1999. The amount of the rate increase shall be set by the Lessor by action of the City Council. 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 change of address form provided by the City Clerk and executed by Lessee and the City Clerk for the Lessor. Such changes of addresses shall be maintained in the files of the City Clerk. All notifications hereunder will be presumed to be correct if sent to the Lessee's address as reflected by the records of the City Clerk. Notices to the Lessor shall be to the Office of the City Clerk unless otherwise designated by Lessor on a form provided by the City Clerk and receipt thereof acknowledged by the Lessee. 5 . RECORDING. Neither the Lessor or the Lessee shall be required to record this lease in the records of Archer county, Texas; provided, however, that upon request by Lessee, the lease shall contain the appropriate acknowledgments which would permit recording in Archer County, Texas. If Lessee elects to record such lease, a copy thereof shall be furnished to the City Clerk and maintained in the Clerk's files. Likewise, a change of address form or 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 City Clerk. 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 City Clerk's office by certified mail to the last address of Lessee on file with the City Clerk. The Lessee will have thirty (30) days from the date of 3 the mailing of the delinquent notice to pay the delinquency, along with a late fee of One Hundred ($100. 00) Dollars. If the payment of the delinquency and late fee are not received by the City Clerk within thirty (30) days of the mailing of the notification, this lease shall be deemed terminated without further action by Lessor. Provided further, that for a period of six (6) months after said termination, Lessee, upon appropriate application to the office of the City Clerk, may apply for reinstatement of the lease for good cause by the payment of the delinquency, late fee, and a reinstatement penalty of one year's additional rental. Reinstatement may be approved by the City Council or such City official as the City Council may designate to make such determinations. 7 . USE. Lessee shall not use the leased premises nor any part thereof for commercial purposes, but only for residential purposes. 8. CONSTRUCTION. Building structures, 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 building 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 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. All 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 building, 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 L r 4 the premises up to the minimum standards set forth in the inspection report, provided that for good cause the City Council 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. 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, or allow to be discharged any waste of any kind into the waters of Lake Kickapoo, and agrees to abide by all rules, regulations or other laws related to the maintenance of water quality in Lake Kickapoo 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. Lessee further agrees not to allow or permit to be accumulated on the premises, any abandoned or junked vehicles, household furniture, or appliances or parts thereof. 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 thirty (30) 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. 5 10. SEWAGE DISPOSAL. Lessee shall be required to adhere to all City, State, and Federal environmental rules and regulations as to sanitary disposal of sewage or any revisions or successors to these requirements thereto. As of the date of this lease, septic tanks shall be the only sewage disposal facility used on the premises, and such facilities shall be in accordance with applicable City, State, and Federal requirements and be maintained in proper operating condition at all times. All sewage disposal systems shall be inspected at the beginning of the lease, when the lease is transferred, or renewed 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 health department or such other agency as is appropriate for conducting such inspections. 11. ASSIGNMENT. Lessee shall have the right to assign, convey or sublease Lessee's leasehold rights hereunder as to the premises, provided that such assignment, conveyance or sublease shall be filed in the office of the City Clerk. No assignment, conveyance or sublease 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 200. 00) Dollars, and all inspection fees as appropriate hereunder. Lessee shall remain primarily responsible for the terms and provisions hereunder until such time as the assignment, conveyance, or sublease 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, conveyance, or sublease shall execute an acknowledgment of such assumption under the terms of this lease on a form as provided by the City Clerk. All forms provided for under this assignment provision may be recorded in Archer 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, inure to the benefit of any such person the heirs and assigns as permitted. Any party exceeding to the rights to Lessee as a result of the death of the Lessee shall file with the City Clerk 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 City Clerk. I 6 12 . ROADS AND RIGHTS-OF-WAY. 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 currently provides. Lessor shall have the right to sublet the maintenance of such roads to Archer County or other responsible authorities. Lessee is granted a non-exclusive right-of-way over the roads, and if the leased premises do not adjoin the primary roads, then 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 rights-of-way from the primary road to the leased premises. If the leased premises are adjacent to the waters of Lake Kickapoo, 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 Kickapoo. 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 Kickapoo. 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 in excess of those realized from the rental received from Lake Kickapoo 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. 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 Kickapoo 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 City Clerk set forth herein. The notice shall advise Lessee of the actions of the City Council 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. 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. 7 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 improvements and upon Lessee's rights in the lease premises. Photocopy of any such obligation must be on file with the City Clerk'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 City Clerk. 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) day 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 Archer County, Texas. 16. SURVEY. The plat as on file in the office of the City Clerk as to lots and blocks of Lake Kickapoo 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 City Clerk. 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. 8 18. MISCELLANEOUS RULES AND REGULATIONS. Lessee agrees to obey the following rules and regulations: a. No farm stock shall be kept on said premises except as may be sanctioned in writing by a health officer of the City of Wichita Falls. b. Fishing and hunting shall be subject to State laws and regulations. c. Said premises shall not at any time be used in any manner or for any purpose in conflict with or contrary to the penal statutes of the State or Federal government. d. Lessee shall not make any use of the premises which would constitute a nuisance. e. Lessee is under the absolute obligation to use the leased premises in a manner that shall prevent the pollution of the waters of Lake Kickapoo in any manner. f. Lessee may use water from Lake Kickapoo on the premises only for the watering of trees, shrubs and grass, but no water will be used off the premises by Lessee. Lessor in no way guarantees the accessibility of water to the leased premises or the level of water in Lake Kickapoo. 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, lease reinstatement 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 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 9 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 or 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, invitees 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, on reasonable notice to lessee (except that no notice need be given in a case of emergency) for the purpose of inspection to determine that the conditions or provisions of this lease are being fulfilled. 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 proceeding shall be in Wichita County, Texas. 10 24. LESSOR'S SERVICES. The Lessor may designate other parties to perform the services provided for herein, including those to be performed by the City Clerk. The Lessor, through the City Council, 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. Attest:City Of Wichita Falls, Texas By: City Clerk City Manager LESSEE Address City State Zip Approved as to Form: Assistant City Attorney 11 STATE OF TEXAS COUNTY OF WICHITA § This instrument was acknowledged before me on the day of 199 by 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 199 by Notary Public, State of Texas