1988 Memo Batting Cage LeaseDEC > 1988
MEMO C11"' fVJi�;{h�; " OFFICE
To: Dennis Kissinger, City Manager; Steve Snyder, Interiff
Director of Parks and Recreation; and Keith Rawlings,
Director of Risk Management
From: Greg A. Bengtson, City Attorney
Date: December 7, 1988
Re: Proposed batting cage lease agreement
I understand it will work for all of us to meet Tuesday,
December 13th -at 10:00 a.m. to discuss the proposed lease
agreement with Fred A. Young for the installation of batting
cages at the East Crawford facility. Enclosed is a copy of
the draft proposed by Phil Shaffer, counsel for Fred Young.
The following is a summary of my initial concerns and
questions.
1. Paragraph (1), Lease Term. I suggest that we cap the
successive five year terms at a time that should allow
Mr. Young a sufficient return on his investment.
2. Paragraph (2), Rental. Am I correct that we intend for
rent to be based on 8% of the monthly gross "revenue?"
If that is true I suggest that we refer to "gross
revenue" instead of "gross income." I am also
concerned about how far you might wish to go in
providing for monitoring of monthly gross revenues.
3. Paragraph (3), Operation. I suggest that we add the
provision that the mechanical pitching machines and
accessories shall not be installed prior to approval by
the Director of the Parks and Recreation Department.
4. Paragraph (9), Taxes. Have we conclusively determined
our willingness to assume responsibility for real
estate taxes that will probably result from the new use
of the property?
5. Paragraph (13), Relationship of the Parties. I
recommend that the indemnification provision be
expanded to clarify that it covers any costs or
expenses in defending any such claims, including
attorneys fees.
6. Paragraph (16), Public Liability Insurance. I
recommend that we expand that provision to require
coverage equal to the maximum exposure to the City
under the Kansas Tort Claims Act over the term of the
agreement and that the policy contain a provision that
the City shall be given at least 10 days written notice
by the insurance company before the policy is
substantially changed or cancelled.
TERM:
RENT:
i
Five years with option to negotiate successive 5
year terms.
$200 a month, or 8% of gross income, whichever is
greater, during months of April through September
inclusive, 8% of gross income during months of
October through March.
DEFAULT:
Concrete pad and fence to remain and become
property of the City. Pitching equipment to
remain Mr. Young's property. Mr. Young to have
ten days to cure any default. Default may be
either financial on part of owner or performance
standards based on standards set by City.
MAINTENANCE:
The owner shall provide acceptable general
maintenance of defined area. 'Maintenance
standards shall be set by City.
ASSIGNMENT:
No assignment without City's written consent,
which consent will not be unreasonable withheld.
TAXES:
Mr. Young to pay personal property taxes and City
real estate taxes.
INSURANCE:
Mr. Young to provide acceptable liability
insurance.
EXPENSES:
Mr. Young to pay all operational expenses, labor
and labor taxes, utility expenses, and licenses.
This Lease Agreement, dated December , 1988, is entered into
between City of Salina, Kansas (Lessor) and Fred A. Young (Lessee).
Lessor hereby leases to Lessee, the real estate described on Exhibit A,.
which is attached hereto, and incorporated herein, by reference. The real
estate is herein called the "premises."
Lessor, in consideration of the rents and covenants herein contained,
does hereby lease to Lessee, the premises, according to the following terms
and conditions:
1. Lease Term. The initial term of this lease shall be five years,
commencing January 1, 1989, and ending midnight December 31, 1993.
Lessee shall have the right to negotiate successive five-year terms
upon expiration of the initial term. It is agreed that the rental in each
successive term shall not be increased by more that ten percent of the
rental for the preceding term.
2. RenIa1. Lessee agrees to pay to Lessor, as rent for the premises,
the sum of Two Hundred Dollars ($200), per month; or eight percent of the
monthly gross. income, whichever is greater, during the months. of April
through September, inclusive. During the months of October through March,
the monthly rental shall be limited to eight percent . of the monthly gross
income.
3. Operation. The premises shall be used as the site for a
mechanical pitching -machine operation. The site will consist of a concrete
pad surrounded by a chain-link fence. The mechanical pitching -machines
and accessories, the concrete pad, and chain-link fence shall be furnished by
Lessee, at his sole expense.
4. Maintenance.
a. Lessor's Lessor shall maintain and repair the access
roads to the premises, and parking.
b. Lessee's Lessee shall maintain the premises.
Maintenance standards, set by Lessor, are attached hereto, and incorporated
herein by reference.
S. Use of Premises. Lessee agrees that the premises shall not be
used or occupied for any purpose other than provided for in paragraph 3
hereof, or that constitutes a nuisance, or _may be objectionable the adjacent
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property.
6. Licenses. Lessee agrees to strictly comply with federal, state, and
local laws and regulations, and to obtain, at his expense, all necessary
licenses and certificates for the operation of the premises. .
7. Utilities. Lessee agrees to pay for all utility expenses) incurred in
the operation of the premises.
8. , Costs of Operation. Lessee shall be solely responsible for all of
the costs of operating the premises not specifically excluded herein.
9. Taxes.
a. Lessor's. Lessor shall assume ail real estate taxes and
assessments which are due upon the premises.
b. Lessee'. Lessee shall pay all personal property taxes
which are due upon the personal property located on the premises.
10. Alterations. Following the initial construction necessary to
begin operation, Lessee shall not alter, improve or change the premises
without the prior written consent of the Lessor. The concrete Dad and
chain-link fence and all alterations, improvements, or changes made, and
consented to by Lessor, shall become the property of the Lessor as part of
the premises. Lessee, unless otherwise agreed to in writing, shall pay all
the costs associated with any alterations, improvements, or changes.
11. Ownershifl of Pitching Machines.: Notwithstanding any
provisions herein to the contrary, the pitching machine equipment shall
remain the property of the Lessee.
12. Assignment. Lessee shall not assign this Lease Agreement,
without the prior written consent. of the Lessor, which consent shall not be
unreasonably withheld.
13. Relationship of the Parties. The relationship of the parties is
solely that of Lessor and Lessee, and nothing herein contained shall create
any other relationship or liability. In the event any claim is made against
either party for damages arising out of the relationship, the party
responsible for such claim shall indemnify and hold harmless the other
party from any loss on account thereof.
a
14. Extended Coverage Insurance. Lessee shall maintain
extended coverage insurance on the property owned by him, located on the
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premises, in such amounts as he deems appropriate to fully insure himself.
15. Untenantability. If the premises are made untenantable for
any reason whatsoever, this Lease Agreement and all obligations hereunder
shall be null and void, and all future performances by either party,
including the payment of rent, shall terminate.
16. Public Liability Inaurance- To insure that both Lessor and
Lessee have adequate public liability insurance coverage, Lessee agrees to
obtain public liability insurance acceptable to Lessor. The Lessor shall be
named as an additional named insured on such policy. The amounts of the
insurance coverage to be obtained are:
17.Indemnification. If either party fails to pay any obligations
which that party is required to pay according to the terms and conditions of
this Lease Agreement, and the other party is required to pay the same, the
paying party will be entitled to reimbursement from the defaulting party.
18. Time is of the Essence. It is mutually;agreed to by the parties
that time is of the essence of this Lease Agreement, and all the terms and
conditions of this Lease Agreement, including the payment of rent, must be
performed, and paid, as specified herein.
19. Default. Neither Lessor nor Lessee shall have the right to cancel
this Lease Agreement for default unless such default remains uncured for
ten (10) days after notice in writing to the other party specifying the nature
of the default. At the expiration of the ten-day period, this Lease
Agreement shall terminate, at the sole option of the party not in default,
unless such default has been cured within such ten-day period.
20. Written Notices. All written notices, as provided herein, shall
be delivered by certified mail, return receipt requested, mailed to Lessor:
City of Salina, City -County Building, 300 West Ash, Salina, Kansas 67401,
and Lessee: Fred A. Young, 732 Victoria Heights, Salina, Kansas 67401.
21. Applicability. This Lease Agreement shall be binding upon the
parties hereto, and their, heirs, executors, trustees, administrators, personal
representatives, successors, and assigns.
IN WITNESS WIIERFAF, the parties have executed this Lease Agreement
on the date first above written.
Lessor:
Lessee:
v
City of Salina, Kansas
By:
Fred A. Young
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