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Res 1358 10/31/1972RESOLUTION NO. 1j p RESOLUTION APPROVING CONTRACT BETWEEN THE CITY OF WICHITA FALLS, WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 AND W. T. WAGGONER ESTATE WHEREBY THE CITY AND THE WATER DISTRICT ACQUIRE AN ADDITIONAL FLOW- AGE EASEMENT FOR LAKE KEMP IN BAYLOR COUNTY, TEXAS. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: That certain agreement between the City of Wichita Falls, Wichita County Water Improvement District No. 2 and the W. T. Waggoner Estate, a copy of which is attached hereto, is hereby approved, the Mayor is authorized to execute the same, and the City Manager is authorized to pay to the W. T. Waggoner Estate the sum of $231, 385.00, which is the City' s part of the cash consideration payable to the Waggoner Estate under said contract. PASSED AND APPROVED THIS THE 31ST DAY OF OCTOBER, 1972. l i e. M A Y O R ATTEST: City Clerk THE STATE OF TEXAS X COUNTY OF BAYLOR X LAKE KEMP AGREEMENT THIS AGREEMENT made and entered into on this the day of 19 , by and between WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2, a municipal and political subdivision of the State of Texas, and THE CITY OF WICHITA FALLS, TEXAS, a municipal and political corpora- tion of the State of Texas, Sponsors, and hereafter jointly referred to as "SPONSORS, " and THE W. T. WAGGONER ESTATE, a trust created by certain articles of agreement and dec- laration of trust dated March 31, 1923, with certain amend- ments thereto, hereinafter referred to as "WAGGONER ESTATE. " W I T N E S S E T H: SPONSORS are presently engaged in the process of raising the Lake Kemp dam to an elevation of 1186 ft. m.s.l. SPONSORS have heretofore acquired by easement from W. T. Waggoner by contract dated January 16, 1922, all the land covered by the waters of Lake Kemp up to an elevation of spillway level, being 1153 . 5 ft. m.s.1. , surrounding Lake Kemp, which referenced contract has been duly recorded in Volume 62, Page 22, of the Deed Records of Baylor County, Texas, and WHEREAS, SPONSORS have heretofore made and entered into an agreement with the United States of America whereby and under the terms of which the United States of America, through its Corps of Engineers, is presently engaged in raising the spillway level of Lake Kemp to an elevation or contour line of 1160 ft. m.s.l. and SPONSORS are required by the United States of America to obtain a flowage easement upon an addi- tional 3 ft. of such land and structures surrounding Lake Kemp up to a contour line 1163 ft. m.s. l. as a precautionary measure against wave action, surge and backwater, to which SPONSORS have agreed: NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THAT for good and valuable considerations including the perfor- mance by the respective parties of the covenants herein contained, SPONSORS and WAGGONER ESTATE have agreed as follows: I. Additional Flowage Easement: For ten dollars and other good and valuable considera- tion which the WAGGONER ESTATE shall receive, as of the date of this contract, together with other benefits, WAGGONER ESTATE shall convey and by these presents does GRANT, SELL and CONVEY an additional flowage easement for the storage of waters to THE CITY OF WICHITA FALLS, TEXAS, and WICHITA WATER IMPROVEMENT DISTRICT NO. 2 surrounding Lake Kemp, which additional flowage easement is situated on lands 2_ owned by WAGGONER ESTATE in Baylor County, Texas , up to elevation 1163 feet m.s .l. and includes the land described in that certain contract entered into by W. T. Waggoner and Wichita County Water Improvement District No. 1, dated January 16, 1922, and recorded as above stated in the Deed Records of Baylor County, Texas, and to the record of said contract, reference is hereto made for a more particular description of said land (subject to Paragraph XV on Page as hereinafter stated in this contract) . Upon the con- summation of this contract, the new flowage easement granted herein includes all lands owned by WAGGONER ESTATE below 1163 ft. m.s.l. , including the land owned by WAGGONER ESTATE covered by the presentlyexistinaLeke Kew, down to the bottom of the Wichita River channel contiguous to and on the upstream side of the Lake Kemp Dam i:i Baylor County, Texas. The CITY OF WICHITA FALLS TEXAS, as a Grantee herein shall receive and be the owner of an undivided interest consistirof eleven_._one-hundredt is_ er cent 66.11%) of the_interest herein the WICHITA_ COUNTY WATER IMPROVEMENT DISTRICT NO. 2 shall receive and be the owner of an undivided_interest consisting, of thirty: three and eight nine e__.one-hundredths_Pzr,,,..cent 133:893.) of the interest herein convene TO HAVE AND TO HCLD the above described .remises , sub- ect to the conditions herein contained, to.ether with all 3- and sin uglar, the ri hts and appurtenances thereto in any; wise belonainq, unto_the said CITY_ OFWICHITA FALLS, TEXASy and the WICHITA COUNTY WATER IMPROVEMENT DISTRICT their successors and assians forever; and W. T. WAGGONER ESTATE does hereby bind itself, its successors and assigns, to Warrant and Defend all and sinlar _the said premises Ito t e sa.d CITYCFWICHITA _FALLS„, TEXAS and the WICHITA COUNTY,,_W_AT.E,R IMPRQ; Z MENST .SM, EO,2,,, tY eir__successors _ and assi.gns_, a•ainst ever •erson whomsoever lawfully claiming, or to c] aim_the same, or any part thereof, by, through or under it, forever. II. Below 1159 Feet M. S.L. : WAGGONER ESTATE agrees from the date this contract is signed that said Estate will not permit the construction of any type of new habitable buildings and structures that would have a first floor elevation below 1159 feet m.s.l. III. Below 1150 Feet M.S.L. : WAGGONER ESTATE shall not extend or renew the term of any lease or leases covering any structures or buildings that are habitable with a first floor elevation below 1150 feet m.s.l. beyond January 1, 1978, and in the event that any such lease is in existence, the term of which extends 4- beyond January 1, 1978, WAGGONER ESTATE shall terminate the same and said habitable structures thereon will be removed or required to be removed, nor shall any leases be granted for habitable structures with first floor eleva- . tions below 1150 ft. m.s . l. This paragraph does not affect the right of WAGGONER ESTATE to control and term- inate any leases prior to January 1, 1978 . SPONSORS will furnish to WAGGONER ESTATE a list of such leases as affected within this area as soon as prac- ticable, but not later than January 1, 1973, and WAGGONER ESTATE will assist in furnishing information that will facilitate the determination of such lease owners. IV. From 1150 Feet M.S.L. to 1159 Feet M.S.L. : WAGGONER ESTATE shall not extend or renew any lease or leases covering any structures or buildings that are habitable with a first floor elevation from at or above 1150 feet ,m.s. l. and below 1159 feet m.s.l. beyond January 1, 2000, and in the event any such lease is in existence, the term of which extends beyond January 1, 2000, WAGGONER ESTATE shall terminate same and said habitable structures thereon will be removed or required to be removed, nor shall any leases be granted for habitable structures with first floor elevations below 1159 ft. m.s.l. This paragraph does not affect the right of WAGGONER ESTATE to control and 5- terminate any leases prior to January 1, 2000. SPONSORS and WAGGONER ESTATE will cooperate in compil- ing a list of such leases as affected within this area which list will be completed between January 1, 1973 and January 1, 1974. V. Hold Harmless: WAGGONER ESTATE shall hold SPONSORS harmless for any floodwater damage of any kind or nature suffered by it to its lands or property within the easement granted by or pursuant to this contract; however, this clause is not to be considered as a covenant of indemnification nor hold harmless covenant as to any claim or cause of action by any cabin owner or owners directly or indirectly growing out of an alleged flooding of cabin owners ° cabins, lake houses or structures of any kind. VI. Releases: In accordance with paragraph (4) of the Waggoner Estate • Lease, a copy of which is attached hereto as "Exhibit A" , WAGGONER ESTATE will transmit to each lessee on Lake Kemp a release from the damage caused by the storage of waters in Lake Kemp, a copy of which release is attached hereto as 6- Exhibit B" . Such release will be transmitted to said lessees by January 1, 1973, and in accordance with the terms of the lease heretofore described, the execution of such release by the lessee is a condition to the continued occupancy of said premises by each lessee, and WAGGONER ESTATE shall furnish all properly executed releases to SPONSORS by April 1, 1973. Any new leases granted by WAGGONER ESTATE in the future shall contain a release by the lessee of the same grounds for damages as stated in "Exhibit B. " VIJC Reservation: Except as to the rights herein granted and as regula- ted and restricted herein, WAGGONER ESTATE retains and reserves the right to the use of all lands affected hereby down to the water' s edge of the waters impounded by the Lake Kemp dam during the life of this contract, including, but by no means inclusive, farming, grazing, oil, gas and mineral development, recreational development, and the exercise of all riparian rights in the lands not actually submerged by waters impounded by said dam and in the river bed adjacent to such lands. The development of the lands for oil, gas, or minerals down to the water' s edge on the flowage easement herein described shall not be construed as pollution of the waters of said reservoir if conducted and/or continued in a careful and prudent manner and in accordance with all laws and governmental regulations applicable thereto. WAGGONER ESTATE shall have the right to construct and dig water canals leading from the lake for purposes of provi- ding access to the lake from subdivision or recreation developments. 7- VIII. Compensation to Lessees : As to all lessees situated below elevation 1150 feet m.s.l. , SPONSORS will negotiate with such lessees and com- pensate them in some manner, i.e. , either for the value of the improvements or the cost of removal thereof as agreed upon between SPONSORS and such lessee, or in the absence of an agreed settlement, as determined in eminent domain proceedings. In no event shall SPONSORS use the termination date of any lease or any provisions therein as affecting the fair market value of the improvements of such leases whether by purchase or in eminent domain proceedings. IX. Removal of Structures: As to any structure abandoned below elevation 1159: feet m.s.l. , it shall be the responsibility of SPONSORS at their sole expense to remove or demolish the same if such removal or demolition is required by any governmental authority. By the term "abandoned° is meant where a struc- ture has been left on a tract by a person for a period of thirty (30) days after the lease has lapsed for any reason or has been terminated. X. Elevation Markers: SPONSORS, at their expense, will mark elevations 1163 8- feet m.s. l. and 1159 feet m.s.l. contiguous to Lake Kemp by regularly spaced, permanent and plainly identifiable structures, the placement and plan for such markers being set forth in "Exhibit C" attached hereto and made a part hereof for all purposes. XI. Warning System and Egress-Ingress: As required by the U. S. Corps of Engineers and within a reasonable time, SPONSORS covenant and agree to at their expense construct or cause to be constructed a flood warn- ing system on Lake Kemp and means of egress-ingress routes from presently: exstinc low lying structures that are subject to being cut off from higher ground by rising water. Any such systems or structures constructed will be, maintained by SPONSORS. By the term "maintained, " as applied to roads, will mean only the replacement of embankment fill. XII. Definition: By the term "habitable buildings" or "habitable struc- tures" as used in this contract is meant buildings or struc- tures with a permanent foundation suitable for human inhab- itation over an extended period of time and which are not readily movable in emergency situations. 9- XIII. Survey: The total additional acreage under the new flowage easement upon WAGGONER ESTATE lands between elevations 1153 feet m.s.l. up to 1163 feet m.s.l. is mutually esti- mated by the parties hereto at 6330 acres. XIV. Abandonment of Lake: In the event that SPONSORS or its assigns should ever permanently abandon Lake Kemp as a water storage facility, then all rights as granted herein to SPONSORS shall revert to WAGGONER ESTATE. XV. Previous Contract: The original contract dated January 16, 1922, between the predecessors of the parties hereto of record in Volume 62, Page 22 of the Deed Records of Baylor County, Texas, shall remain in full force and effect and shall not be considered as changed or modified by this contract insofar as to all matters pertaining to the lands concerned with the most eastern of said dams originally called Diversion Dam and now commonly known as Diversion Lake. With regard to Lake Kemp, the provisions of this contract enlarge the ease- ment rights acquired by SPONSORS below elevation 1153 feet m.s.l. in the January 16, 1922, contract. 10- XVI. Venue: The venue for any suit or cause of action which may originate by virtue of this agreement shall be in Baylor County, Texas. XVII. Merger and Modification: All oral agreements are merged into the terms of this agreement and the contract between the parties hereto consists solely and completely of the terms found in this instrument and no modification or change therein shall be recognized unless evidenced by an instrument in writing signed by all parties hereto. XVIII. Execution: By a Resolution duly enacted by the governing body of the City of Wichita Falls, Texas, on the day of 1972, this Agreement was approved, and the execution carrying out said Resolution by the Mayor was duly authorized. By a Resolution duly enacted by the Board of Directors of Wichita County Water Improvement District No. 2 on the day of 1972, this Agreement was approved, and the execution carrying out said 11-. Resolution by the President was duly authorized. This instrument shall be executed in triplicate originals with an original going to WAGGONER ESTATE and an original going to each of the entities represented by the term SPONSORS. XIX. Successors and Assigns: This instrument shall enure to the benefit of and be binding upon the parties hereto and their respective successors, legal representatives, and subsequent assigns. Executed in triplicate this the day of 1972. SPONSORS: CITY OF WICHITA FALLS, TEXAS ATTEST: By Mayor City Clerk WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 ATTEST: By President of Board of Directors Secretary WAGGONER ESTATE W. T. WAGGONER ESTATE By Trustee THE STATE OF TEXAS I NO. COLT.`iT7 OF WILBARGER TI-ZS CONTRACT entered into on the date hereinafter shown, between W. T. Waggoner Estate, a trust estate created by certain articles of agreement and declaration of trust dated March 31, 1923. with certain amendments thereto, hereinafter referred to as "Lessor", and a citizen of County. Texas, hereinafter referred to as "Lessee". WITNESSETH: In consideration of the rentals to be paid by Lessee as hereinafter specified and on condition that Lessee shall•perform each and every obligation by this contract imposed on him, Lessor hereby grants its permission to Lessee, so long as Lessee shall perform such obligations, to occupy the following lot or parcel of ground approximately 50' X 100'with a frontage of Fifty (50) feet on or near the lake shore, in the.Lake Kemp Area in Baylor County, Texas, to-wit: for personal, residential or camping purposes only. excluding any commercial purpose whatsoever, under the following express stipu- lations. agreements, and restrictions, but not otherwise, which the said Lessee obligates and binds himself to carry out. The obligations of Lessee, which are conditions of his occupancy, are: 1) The term of this lease shall be for a period of five (5)years dating from the 1st day of January, 1968. Provided all the terms and conditions of this lease have been complied with, Lessor grants Lessee the right and option to renew and extend this lease for an additional five (5)year term dating from the end of the term of this lease on January 1, 1973, and such renewal shall be on the same terms sad provisions as provided herein. 2) Subject to the conditions hereinafter stated, the rental to be paid by Lessee to Lessor during the term hereof shall be Thirty and No/100 Dollars ($30.00)per year payable in advance and the first such annual rental shall be paid on or before January 1, 1963, and a like payment shall be payable on or before the 1st day of January of each subsequent year during the term thereof. The rental provided herein is not considered by the parties as an economic rent as such is defined in the law. In its sole discretion, Lessor shall have the right and option to increase the amount of annual rentals due from Lessee during the term thereof. If Lessor decides to increase such rentals, Lessor shall notify Lessee in writing at least thirty (30) days prior to January 1st of the year such new rental rate shall be effective. Lessee shall have an option to not pay such increased rentals and if such option is exercised, this lease shall be terminated as of January 1st of the year that the new rates become effective. The right to increase rentals as herein specified is personal to and enures to the sole benefit of the W. T. Waggoner Estate only and said right shall terminate at such time, if any, that a condemning authority seeks to remove the structures or improvements on said site. All rentals shall be payable to Lessor at its office in Vernon, Wilbarger County, Texas. Lessee further agrees to pay all personal property or ad valorem taxes assessed on the value of any property or improvements situated upon the site hereby leased. 3) Any misconduct on the part of Lessee or his family or his guest, to be judged solely by Lessor or its agents, will, with- out reference to other provisions or conditions of forfeiture herein, be adequate cause for immediate revocation of this lease at the election of Lessor. 4) Lessor makes no representations as to the matter of whether or not the said site is subject to or may be overflowed as this hazard is one assumed wholly by Lessee. If such matter has been approved by Lessor, Lessee, at Lessor's request, agrees to execute any releases in favor of the governmental authorities connected with the storage of waters in Lake Kemp concerning damages to the person or property of Lessee as situated on said site in the event such site comes within any new flowage easements condemned by governmental authorities in the future and provided structures are allowed to remain thereon. Lessor is not responsible for any Intent or patent defects in the site hereby leased or as to the means of access to said site. Lessee shall be solely,responsible for any injuries incurred by his guests, business invitees, or members of Lessee's family while visiting the Lessee. 5) In the event Lessee fails to pay the rental due under this lease for a period of thirty days after;he same is due, this lease shall automatically terminate. In the event of the termination of this lease, whether by lapse of time, failure to pay rentals, or for any reason, Lessee shall have the right to remove all improvements from the site within thirty (30)days. If said improve- ments are not removed within such time, Lessor shall become the owner of all such improvements not removed, together with the contents thereof, with the full right, power, and authority to sell, dispose of, or do with as it may desire. 6) The possession or use of firearms by Lessee upon the site hereby leased or in adjacent areas shall be strictly pro- hibited except in such manner or in such area which are expressly designated by Lessor. Refuse, trash, and debris shall be dumped by Lessee only at the locations expressly designated by Lessor, and Lessee shall keep the cabin sites hereby leased in an orderly maer, free from the accumulation of litter, refuse, trash and junk. Lessee shall not in any manner harass or molest any livestock which are on or adjacent to the site covered by this lease. 7) The lease hereby given is for the use of the land hereby described only and an additional fee or charge shall be made by Lessor for access thereto. Lessee hereby repudiates the right to assert easements by necessity or otherwise and agrees that his access to the site hereby leased is only by such means and according to such conditions as are prescribed by Lessor. Lessee shall not assign or sublet this lease or any rights thereunder without the consent in writing by Lessor. If consent is given by Lessor, the now Lessee shall pay a transfer fee of thirty dollars ($30.00). 3) The failure of Lessee, his guests or invitees,to fully carry out and perform each of the obligations and conditions im- posed by this instrument, heretofore described in paragraphs (1) thru (7), shall give to the Lessor the complete right at its election and in its sole discretion and judgment to cancel and rescind this agreement, with the same effect as if the full lapse of the period hereof had occurred. The delay, acquiescence, or lapse of time of any duration by Lessor as to the enforcement of any of its rights under this contract shall not be considered as a waiver or renunciation of any of such rights. 9) Lessee shall not use said premises in such a way as to pollute the waters of said reservoir and Lessee shall be solely responsible for failure to comply with any sanitation requirements imposed by governmental authorities. 10) In the event the premises subject to this lease, any part thereof, or interest therein, shall be taken through the exercise of tae power of eminent domain, by condemnation or voluntary purchase, Lessor shall own the award or compensation for all damages to and proceeds for the premises, both leasehold and reversion, with the sole exception that Lessee shall own any damages, proceeds awarded, or compensation, ii any, from the condemning authority for the value of any improvements thereon or the costs of removal of. such improvements. The Lessor shall have the right and option if it chooses to settle or litigate its damages with the condemning authority separate and apart from the Lessee's interest in said premises as herein reserved. 11) The parties hereto have read the provisions of this agreement before signing the same and agree that no statement, re- mar:, representation, oral or written, between the parties, their agents or assigns, made before or after the date of this agreement, will be recognized or enforced. Venue for the purposes of any disputes and/or onforcements under this contract shall be in Wilbarger County, Texas. WITNESS the signature of the parties hereto this day of 19_ W. T. y4A DAR ESTATE A.TrwtEs' te) By LESSEE bdQR Exhibit A II RELEASE THE STATE OF TEXAS COUNTY' OF BAYLOR . WHEREAS, the undersigned is the Lessee in Lease Agreement No. with the W. T. Waggoner Estate, a Trust Estate, as Lessor, said lease being filed in the offices of the W. T. Waggoner Estate in Vernon, Texas, reference to which is hereby made for all purposes and the same ,is incorporated herein for all purposes, said lease covering a lot or parcel ' of land as therein described in the Lake Kemp area in Baylor County, Texas, and WHEREAS, as part of the consideration for such lease, the Lessee cove- nanted that he would, at Lessor's request, execute any releases in favor, of• the governmental authorities connected with the storage of waters in Lake • Kemp concerning damages to the person or property of Lessee as situated on said site; and, WHEREAS, W. T. Waggoner Estate has now requested that the undersigned execute such release; and, WHEREAS, the City of Wichita Falls, Texas and Wichita County Water Improvement District No. 2 in conjunction with a joint project on Lake-Kemp with the U. S. Corps of Engineers have a water flowage easement up to eleva- tion 1163 feet m.s.l . : NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that the undersigned, for and in consideration of the premises, does hereby release, save and hold armless said City of Wichita Falls, Texas, Wichita County Water Improvement . District No. 2 and the United States of America from all loss or damage and from every claim, demand or cause of action that may be made or could be made by me, my hairs or legal representatives, against either or all of them and the Lessor by reason of the inundation of said premises by the waters of Lake Kemp, for so long as I hold the above described lease or any renewal or extension thereof, or any new lease which might in the future be entered into between W. T. Waggoner Estate and me. This right to flood and release of damages shall be binding on me, my heirs, legal representatives, successors and assigns. WITNESS MY HAND THIS the day of a 19 WITNESSES: nB`t.Izibit Bu EXHIBIT C" Elevation markers will be placed and maintained by . SPONSORS for elevations 1159 feet m.s.l. and 1163 feet m.s. l. The markers at elevation 1163 m.s. l. are to be placed at an' interval of one each two miles along the contour. Such markers are to be completed and in place by January 1, 1975 . WAGGONER ESTATE and SPONSORS have marked and des- ignated certain areas upon a U. S. Geological Survey Map for the placement of elevation markers at 1159 feet m.s.l. This map has been dated and initialed by an authorized representative of each group hereto. The interval distance along the 1159 feet m.s.l. contour for the placement of each marker and the date for the completion of the placement is as follows: Elevation 1159 feet m.s.l. Interval Completion Area Along Contour Date n Red Zone See below) January 1, 1973` Blue Zone *(See below) April 1, 1973 Green Zone *(See below) June 1, 1973 Unmarked Zone 2 miles January 1, 1975 i.e. , all other areas) The location of the markers within the colored designated areas has been marked with the designation upon the map. The total number of markers required within such colored areas is estimated at 94 , with a variance factor of 10% . As to the unmarked (2 mile interval) areas, SPONSORS will endeavor to place these markers on major points of land. As to these completion dates, SPONSORS may place temporary markers in lieu of permanent markers. The temporary markers shall be a pipe at least three inches in diameter and six feet in length. At least three feet of the pipe shall be above the ground level and be painted a high visibility yellow in color. The permanent markers will then be put into place within six (6) months after the completion dates as specified. At each major stream road crossing, including Flippen Creek, Big Moonshine, Little Moonshine, Pony Creek, and Gray Creek, SPONSORS will place and maintain permanent type water markers to visibly demonstrate the depth above the road of waters which may back up from Lake Kemp. The permanent elevation markers shall be of a sub- stantial nature of the type planned for this project for siltation studies by the U. S. Corps of Engineers , i.e. , similar to those customarily used and placed by the U. S. Geological Survey with a bench mark at or near ground level and constructed of concrete. For location purposes, a three inch iron pipe painted with a yellow color shall , be placed contiguous thereto and be at least three (3) feet above the ground. All markers as herein described will be regularly maintained by SPONSORS. A map showing the placement of all markers shall be prepared by SPONSORS and furnished to WAGGONER ESTATE within a reasonable time.