Res 2875 10/20/1981RESOLUTION NO. Ar25}
RESOLUTION APPROVING AND AUTHORIZING THE
CITY MANAGER TO EXECUTE LEASE AGREEMENT
WITH PROPERTY OWNER ON SANITARY LANDFILL
PROPERTY
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF
WICHITA FALLS, TEXAS, THAT:
That certain lease agreement, a copy of which is attached
hereto covering a 149. 98 acre tract of land owned by Mr.
Cecil D. Parker, is hereby approved and the City Manager is
authorized to execute said lease.
PASSED AND APPROVED this the 20th day of October, 1981.
M A Y O R
ATTEST:
16L- XQ-'
j
City Cl rk
LF:\SF AGRr1 SENT
This Lease Agreement is made and entered into this day of 1`t_
by and between Cecil Parker, the Lessor and the Cit '. of Wichita Falls, the
Lessee.
ARTICLE 1 . DEMISE OF LEASED PREMISES
Lessor for and in consideration of, the rents, covenants , and promises herein
contained to he kept, performed and observed by Lessee, does hereby lease and
demise to Lessee, and Lessee does hereby rent and accept from Lessor, that
real property, referred to as the leased premises and more particularily des-
cribed as
Tract 2
A 84.44 acre tract of land in Block 12, Cowherd Brothers South Side Farms lb-
division out of the Palo Pinto County School Land, Abstract "+1 , qichita County
Texas and being a part of a tract of land described by deed ; O Donald C. F-rker
as recorded in Volume 394, Page 20 and Cecil D. Parker as recorded in Volume 39, ,
Page 21 , Deed Records, Wichita County, Texas, and being described by metes and
bounds as follows :
B1-GINNINC at a 1'>" iron pipe found for the Southwest corner of Block 12, i",o.Ath
Side Farms Subdivision.
THEN0E NOO° 06'03"W at 1,780.21 feet pass a i" iron reinforcing rod and
continuing on the same course in all 2,647.9 feet to a :_" iron pipe
found0for the Northwest Corner of Block 12, South Side Farms Subdi.vi si,.n.
1 HFHCE 589 03'59"E 1,010.0 feet along the North line of Block 12, South
Side gams ubdivision to a 2" iron reinforcing rod.
TIEPCE SO9 33'5""F, 1 ,590.4 feet to a 2" iron reinforcing rod
THENCE S42°52' 16"E 1 ,457.84 feet to a Z" iron reinforcing rod on the South line
of- Block 12, South Side Farms Subdivision
THENCE N89
0
51143"U along the South line of Block 12, South Side Farms Subdivision
at 169.4 feet pass a 's" iron .•einforcing rod and continuing on the same
course in all 2,261 .34 feet to the pl-ice of beginning and containing 84.44
acres of land more or less.
Tract 4
A 28.45 acre tract of land in Block 9, Cowherd Brothers South Side Firms
division out of the Palo Pinto County School Land, Abstract 241 , Wichita County,Texas and being a part of a tract of land described by deed to Donald C. Parker
as recorded in Volume 394, Page 20 and Cecil D. Parker as recorded in Volume 391 ,
Page 21 , Deed Records , '.Iichita County, Texas, and being described by metes and
rind bounds as follows :
BEGI::NING at a 111 iron reinforcing rod at the midpoint of the .South line of
Block 9, South Side Farms Subdivision which bear> N89°35' 12":•1 1,514.35' from
a 1";" iron pipe found for the Southeast corner. of Block 9, South Side Firms
Subdivision.
THENCE H38°55'47"`.! 859.53 feet . to a L " iron reinforcing rod
THENCE N00°03'50"J 1 ,965.0 feet to a 2>>" iron reinforcing rod on the North line
of Block 9 , South Side Farms Subdivision
THENCE• N89°54' 23"E 538.5 feet along the North line of Block 9, South Side
Farms Subdivision to a L " iron reinforcing rod at the midpoint of the
North line of Block 9 , South Side Farms Subdivision
THENCE SOO°04'53"E 2,634.5 feet to the place of beginning and containing 28.45
acres of land more or less.
TRACT 6
A 37.09 acre tract of land in Block 11, Cowherd Brothers South Side Farms
Subdivision out of the Palo Pinto County School Land, Abstract 241 , Wichita
County, Texas, and being a part of a tract of land described in the Report
of Commissioners to Donald G. Parker as recorded in Book 8, Page 243, Minutes
of 78th District Court, Wichita County, Texas and by deed to Cecil D. Parker
as recorded in Volume 394, Page 21, Deed Records, Wichita County, Texas and
being described by metes and hounds as follows :
BEGINNING at a 2" iron pipe found for the Southwest Corner of Block 11, South
Side Parms Subdivision.
THENCE N00°17' 28"W 1 ,600.0 feet along the West line of Block 11, South Side
Farm Subdivision to a " iron reinforcing rod
THENCE 389 003'59"E 1,010.0 feet to a 2" iron reinforcing rod
THENCE S00 17'28"E at 649.4 feet pass a ' " iron reinforcing rod and continuing
on the same course in all 1,600.0 feet to a " iron reinforcing rod on
the South line of Block 11 , South Side Farms Subdivision
THENCE N89°03'59"W 1 ,010.0 feet along the South line of Block 11 , South Side
Farms Subdivision to the place of beginning and containing 37.09 acres of
land more or less.
TO HAVE AND TO HOLD the said leased premises, together with all rights,
priveleges, easements, appurtenances , and immunities belonging to or in any
way appertaining to said leased premises, including, but not limited to, any
and all easements, rights, titles and priveleges of Lessor now or hereafter
existing in, to, or under adjacent streets, sidewalks, alleys, party walls
and property contiguous to the leased premises and reversions which may
hereafter accrue to Lessor as owner of the leased premises by reason of the
closing of any street, sidewalk or alley.
TICLr.
1'ixcd Commencement and Termination D•te
l This 1ca. n Mall he for a term of tan ( 1l) dear.; rrEr, . ed tr. as the leas
term, cn t;enCin;', en 19 and ending on_
1n. ;.,
nbjcc :
however to earlier termination as provided in this agreement.
Right to extend
2.n2 If Lessee desires to continue this lease after the expiration of the lea ;e
term it shall have the right to so extend by proceeding in the follovvving manner.
Lessee shall , not less than three months before the expiration of the lease tern
give to Lessor written notice of its desire and election to continue the lease
for an additional term of five years. In the notice Lessee shall include propos d
terms for the five year extended period based upon the top market value of curr ?nt
grass lease prices not to be less than $12 per ac'ie per year. Upon receiving th ?
written notice Lessor either shall accept the proposed terms and notify Lessee
in writing of its acceptance or shall appoint an individual to act as an apprai ;er
and shall then notify the Lessee in writing of the appointment.. Upon notifi.cati 'n
of Lessor's appointment of an appraiser lessee shall appoint an individual to a :t
as appraiser and shall then notify Lessor in writing of the appointment. The
two appraisers so appointed shall review current grass lease prices and apprais
the value of the lease at the top market value of current grass lease prices
not -to be less than $12 per acre per year and the appraisal of the appraisers
shall be bind lug and final for the purpose of this lease, an:-! thereupon without
any further act this lease shall be extended for a further term of five years ,
upon the same term and conditions in all thin{ s as before, r.<cept that the annu t'
rent for such second term be such sum as is equal to the top market value of
current grass lease prices or $12 per acre, whichever is greater, the same to
be paid in annual installments as before; and Lessee shall pay all taxes and
assessments and keep and observe all other covenants and agreements, as during
the 1 e'1:,` term. If the two -il'.,`r i';ers are unable to reach agreement on the
terms for the extended five year period they shall have authority to :_appoint a
third appraiser. If the two appraisers Jr(' uuabl e to reach agreement on the
terns for the extended five year period they shall have authority to :appoint
a third appr,a.iser. If the two appraisers fail to reach agreement on the terms
or fail to appoint a third appraiser within ten (10) days• after being notified
of their appointment , then either party of the lease may, upon two days' writt. n
notice to the other party apply to any judge of the District Court residing in
the County of Wichita , for the appointment of the. third appraiser, which
shall thereupon be duly made. In the event a third appraiser has been chosen
then the appraisal of any two of the appraisers a!lll he binding and final for
the purpose of this lease.
Right to Future Extensions
2.03 On the close of the second term, and of any subsequent term for which
this lease may be renewed, the Lessee shall have the option of renewing their
lose in the same manner in all things a:: sect ion 2.02 of this agreement for a
further term of five years, the rent to be fixed each time at the top market
value of current grass lease prices at the respective renevsls or $12 per acre
per year, whichever is greater, until the full end of twenty five years after
the date of this lease, at which time this lease, if it shall have been thereto
extended, shall absolutely end and determine.
ARTICLE 3. RENT
Fixed ;um- Annual Installment
3.01 Lessee agrees to pay to Lessor as rental for the use and occupany of •the
leased premi'es under this lease the sum equal to $12 per acre, fenced or
unfenced, in advance on the first business day of October, of each year during
the term of the lease.
vent by Lrssee
0l To . d;H.tion to the rental , Lessee _'.11 i - end discharge all t-o::es ,
reuer:11 sessments , an other charge, of ever' do c• ': tlor, which
during the tern of this lease may he levied on or assessed against the leased
premises and all interests therein and all improvements and other property
thereon, whether belonging to Lessor or. to Lessee, or to which either of them
mev become liable. Lessee shall par all such taxes , charge , and assessments
to the public officer charged with the collection thereof not less than f_ifteer
15) days before the same shall become delinquent , and Lessee agrees to in-
demnify and save harmless Lessor from all such taxes, charges, and assessments.
Lessee shall have the right in good faith at his own sole cost and expense (in
his own name or in the name of Le sor, or both, as Lessee n:ry determine
appropriate) to contest any such ta::es , charges , and as..cssnenta and :hall be
obligated to pay the contested amounty only if -!nd when fi I-;ll., determined to
be due.
Payment by Lessor
4.02 `subject to the right of the Lessee to contest taxes , as:=essncnts, and
governmental charges as provided in section 4.01 , Lessor may at time that
the payment of any item of taxes , special ass:e_•sments or governmental charges
which Lessee is obligated to pay under the provisions of section 4.01 remains
unpaid give written notice to Lessee of his default , specifyint the same, and
if l.e<:;ee continues to fail to pay an i_tc'i of taxes , speci d rise,:Sment,or
rovernmental charge or to contest the same in good faith, then at any time after
ten ( 10) days from such written notice, Lessor m.Iy pay the item specified in
notice, with interest thereon at the rate of ten percent ( 107;) per annum from the
date of such payment by Lessor until repaid by Lessee, provided, however, if
Les=or, without giving the ten (IC) days notice provided Loy in this section,
p• may= any such item which ha not been p-ifd Lessee within they time required in
t. fl . , r \-hieh Ii not thr,n r thire succr,-(u1H ,- contested
Le.;,iee shdll neverthFloss reimhurse Ln-o.or for ::.uch ht
ARTICI)T 5 . UTILITIES
Lessee shall prly or cause to be paid all charge:: for ,iater, heat, gas ,electricity .
sei.,:ers and anv and a l l other u t i l i t i e s used on the leased premises throughout the
the term of this le7se including any connection fee.
Al7ICL7 6. USF OF PRENT.U.S
Principle Use
6.01 Lessee shall have the right to use the lensed premises for any lawful purptsE
In this connection and without detracting from the ferez,oing, it is understood
and agreed that the primary purpose for which the leased premises have been
leased and hired is for the development and construction of r sanitary landfill.
Use of Unfenced Property
6.C2 The Lessor shall he alle;:cd the usc7,2 of property which is not under
fence by the Lessee for its use as a sanitary larlfill.
Notice of Additional Fencing
6.03 The Lessee shall give the Lessor four (4) months advance written notice
before fencing in additional property.
Release of Property
6.04 The Lessee shall release and ii.low the Lessor to use thlt land which
has hoen completed in iL function as o. -'.a.nittry Landfill .
CO'1' 111'.. Ie:: 1
7.01 1.(.55.(•(` r;11._'.11 1:1V'' the I"i^hl ',t any , 'mo "il'd from time to time - irri' the
term of this le.'se, to erect , maintain, alter, remodel, r eoo":_ t rut , rebuild,
rcpli'.c,,, and remove buildings and other ii.provf:ment'- on the leased premises and
correct and char'gc the contour of the 1er.;ed premises , subject to the fcllowin
general conditions :
1 ) The cost of any such construction, reconstruction, demolition or of
ny change, ['iteration or improvements, shall be borne and paid for by Lessee; in '
2) The leased premises shall at all times be kept free of mechanics' and
matcrialmen's liens.
Lessee's Ownership of Improvements and fixtures
7.02 All buildings, improvements , fixtures , machinery and equipment of whatever
nature at any time constructed, placed or maintained on any part of the leased
premises shall be and remain the property of Lessee.
Right to Remove Improvements
7.03 Lessee shall have the right at any time during Lessee's occupancy of the
leased premises , or within -a reasonable time thereafter, to remove any and all
huildiegs, improvements, fixtures, and all equipment owned or placed by Lessee,
in, under, or on the leased premises, or acquired by Lessee, whether before or
during the lease term, but Lessee shall not be obligated to do so. Any buildings,
improvements, Fixtures , or cquipnent which are not removed .;hall become the
property of the Lessor.
A '1 ICLF 8. ;,171. : '!
Lo;,s .c's ant,
8.01 Lessee, at Lessee's o,:n cost :ind cpcn;;e at all time during the term of
this lease, .agrees to keep and in-ilnt ii n, or cause to be kept and maintained,
all buildings and improvements which may be erected on the leased premises
in a hoed state of appearance and repair, reasonable wear and tear excepted.
Lessee's Duty to Restore
8.02 Upon termination of this lease ;agreement , Lessee shall restore the fences
existing at the inception of the lease agreement . Lessee shall construct said
fences with steel posts and 5 strr.nd barbed wire.
Damage or Destruction- Repair
8.03 In the event the buildin` or any building or improvements . thereafter
constructed on the leased premises is damaged by fire or other casualty,
regardless of the extent of such damage or destruction, Lessee shall within
one year from the d-ate of such damage or destruction, commence the work of
repair, reconstruction, or replacement of the c mar;c l or destroyed building or
improvement and prosecute the same 'filth reasonable dil ligence ,:o nit the building
or improvelnert , to the extent origion•elly constructed by Lessee, shall be
restored to substantially the condition it was in prior to the happening
of the casualty; provided however, that if the commencement , construction or
completion of said repaii, reconstruction or replacement work shall be
prevented or rlcl ?.yed by reason of war, civil. commotion, acts of Cod, atrikes,
governmental restrictions or regulations , or interferences, fire or other
casualty, or any other reason beyond the control of Lessee, whether similar
for damages occasioned thereby and shall , in the event of a ju cement of
foreclosure in said mechanics lion, cause the sane to be discharned and re-
moved prior to the execution of the judgement.
ARTICLE 9. DEFAULT AND Rt'1FD1ES
Termination on Default
9.01 Should Lessee default in the performance of any covenant, condition or
agreement in this lease, and such default is not corrected within ten (10) days
after receipt of written notice from Lessor to Lessee, Lessor may declare this '
lease, and all rights and interests created by it , to be terminated. Upon
Lessor electing to terminate, this lease shall cease and come to an end as
if that were the day origionally fixed herein for the expiration of the
term hereof. Lessor, his agent or attorney may resume possession of the
premises and relet the same for the remainder of the term at the best rent
Lessor, his agent or attorney, may obtain for the account of Lessee, who
shall make good any deficiency.
Other Remedies
9.02 Any termination of this lease as herein provided shall not relieve Lessee
from the payment of any sum or sums that shall then be due and payable to
Lessee hereunder, or any claim for damages then or theretofore accruing against
Lessee hereunder, and any such termination shall prevent Lessor from enforcing
the payment of any such sum or sums or claims for damages by any remedy
provided for by law, or from recovering damages from Lessee for any default
thereunder. All rights, options, and remedies of Lessor contained in this lease
shall be construed and held to be cummulative, and no one of them shall be
exclusive of the other, and Lessor shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by
law, whether or not stated in this lease. No xJaiver by Lessor of a breach
rV inv of t11o:P ('ilume -citedd or not , the time or the eo imen n or co^!rllf_ting,
or both, or the conetuction of :?aid lnli l ing, is to c ::r, „
artom,.ut ical 1 v he extended for the period of e:lcll such
echnnic s' Lien;
3•f: ( l ) lre:;-ee shall not suffer or permit any mechanic: Liens or other liens
to be filed against the fee of the leased premise= nor against Lessee's
leasehold interest in the land nor any buildings or improvements on the leased
premises by reason of anv work, labor, services or materials supplied to or
claimed to have been supplied to Lessee or to anyone holding the leased
promises or any part thereof through or !under the lessee.
2) if Any such mechanics' liens or materi.;.lmen's liens shall be recorded
against the leased premises , or any improvements thereof, Lessee r all cause
the s tine to he removed or, in the alternative, if Lessee in good faith desires
to contest the same, Lessee shall be privileged to do so, but in such case
Lessee hereby agrees to indemnify inct save Lessor harmless from all liability
of any of the covon;uats , conditi na , or restrictions of this lease shall be
construed or held to he a waivey oi my succeeding or preceding breach of the
same or any other covenant , condition, or restriction herein contained.
ARTICLE 10. 'l ORAt1'1'I1•"
Lessor's ',Iarranty of Title
10.01 Lessor hereby represents and warrant:; that he is the owner in fee simple
absolute of the leased premises subject to covenants , conditions , restrictions ,
easements and other matters of record.
Lessor's 'Warranty of Quiet Endo}anent
10.02 Lessor covenants and agrees that Lessee on paying the rent and other chars=.s
herein provided for and abserving and keeping the covenants, conditions, and
terms of this lease on Lessee's part to he kept or performed , shall lawfully
and quietly hold, occupy, and enjoy the leased premises during the term of this
lease without hinderance or molestation of Lessor or any person claiming under
lessor.
ARTICLE 11. GENERAL PROTECTIVE PROVISIONS
Right of Entry and Inspection
11 .01 Lessee shall permit Lessor or. Lessor's agents , representatives , or employes
to enter on the leased premises for the purpose of inspection, to determine
whether Lessee is in compliance with the terms of this lease, Lou purpose
of maintaining, repairing or altering the premises , or for the purpose of
showing .the leased premises to prospective lessees , purchasers , mortgagees ,
or beneficiaries- under trust deeds.
No Partnership
11 .02 The relationship between Lessor and Lessee at all times shall remain
solely that of landlord and tenant and shall not be deemed a partnership or
joint venture.
Tore '.: inure
11.03 if the commencing of construction of the sanitary la.ndfi l l or the completi )n
of the same or the curing of any default (other than failure to pay rent or
ad valorem taxes ) or the performance of any other covenant , ,Trc'euent , obiiRgati n.
or undertaking herein contained is delayed by reason of Saar, civil commotion,
Act of God, governmental restrictions, regulations or interferences , fire or
other casualty, or any cirunstances beyond Lessee's control or beyond the
control of the party obligated or permitted under the terms hereof to do or
perform the same, regardless of whether any such circumstance is similar to any
of those enumerated or not, each such party shall be excused from doing or
performing the same during such period of delay.
No Termination on Sale or Bankruptcy
11.04 Neither sale of the leased premises by Lessor, bankruptcy, insolvency,
assignment for the benefit of creditors, nut the appointment of a receiver
shall affect this lease so long as all covenants of the Lessee or Lessor are
continued in performance by Lessee or Lessor and their respective successors
or legal representatives.
No Waiver
11.05 No waiver by Lessor of any default or breach of any covenant , condition .
or stipulation herein contained shall be treated as a waiver of any subsequent
default -or breach of the same or any other covenant , condition or stipulation
hereof.
Use Clause
11.06 Lessee agrees not to use the leased premises or any building situated
upon siad premises, or any part therefor, for any use or purpose in violation
of any valid and applicable law, r-gulation or ordirunce of the United .states ,
the State of Texas , or the City of Wichita Frills, or other lawful authority
having jurisdiction over the leases( premise ; , provided, however, that there
shall be no violation by Lessee of this provision unless and until Lessor has
notified Lessee in writing, specifying the alleged violation anduntil there
has been a final adjudication that the specified use is in violation of the
law, regulation, or ordinance specified in such written notice, and that such
specified law, regulation or ordinance is valid and applicable to the leased
premises , and until Lessee has had a reasonable time after such final
adjudication to cure the specified violation.
ARTICLE. 12. MISCELLANEOUS
Delivery of Rents and Notices
12.01 All rents or other sums, notices, demands or requests from one party
to another may be personally delivered or sent by mail, certified or registered ,
postage prepaid, to the addresses stated in this paragraph, and shall be deemed
to have been given at the time of personal delivery or at the time of mailing.
All payments, notices , demands, or requests from Lessee to Lessor shall
be given to Lessor at 3509 Regina, Wichita Falls or at such other address as
Lessor shall request in writing,
All payments, noticies , demands , or requests from Lessor to Lessee shall
be given to Lessee at P.O. Box 1431 , Wichita Falls, Texas or at such other
address as Lessee shall request in writing.
Parties Round
12.02 This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors , administrators, legal
representatives, successors , and assigns where permitted by this agreement.
Texas La, to Apply
12.03 This lgreeweut shall be construed under and in accordance with the
Livs of the State of Texas, and all obligations of the parties created hereunder
are performable in Wichita County, Texas.
Legal Construction
12.04 In case any or more of the provisions contained in this agreement shall
for any reason be held to he invalid, illegal , or unenforceable in any respect ,
such invalidity, illegality or unenforceability shall not affect any other
provision thereof and this agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
Prior Agreements Superseeded
12,05 This agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings or written or oral agreements
between the parties respecting the written subject matter.
Amendment
12.06 No amendment , modification or alteration of the terms hereof shall he
binding unless the same be in writing, dated subsequent to the date hereof and
duly executed by the parties hereto.
Rights aid Remedies Cumulative
12.07 The rights and remedies provided by this lease agreement are cumulative
and the use of any one right or remedy be either party shall not preclude or
waive its right to use any or all other remedies. Said rights and remedies
are given In addition to any other rights the parties may have by law, statute,
ordinance, or od`cr`/i.'e.
Attorney's Fee
Z,CH In the event Lessor or Lessee breaches any CI the terms of this agreement
whereby the plrty not in def-Ault employes atterneys tn protect or enforce its
rirhL:; herenwler and prevail , then the deCaulting party ng.rees to pcy the other
party reasonable Attorney's fees so incurred by such other p:Irty.
Time of Essence
12.09 Time is of the essence in this agreement.
Further Documents
12. 10 Lessor agrees that he will from time to time and at any reasonable time
execute and deliver to Lessee such other and further instruments and assurances
as Lessee may reasonably request approving, ratifying, and confirming this leas(
and the leasehold estate created hereby and certifying that the same is in full
force and effect and that no default thereurder on the part of Lessee exists ,
except that if default on the part of Lessee does exist , Lessor shall specify ir
said certificate each such default.
This lease has been executed by the parties on the date and year first
above written.
Cecil Parl:er, Lesser
Sworn and subscribed to before me , Kathleen L. Burbank, Notary
this 8th day of October, 1981.
If tri0 Par
Kathleen L. Burbank
Notary, Wichita County