Agreement Relating to Dean Evans Statium AGREEMENT
among the
CITY OF SALINA, KANSAS
and the
"SALINA ATHLETIC PARTNERS"
including
SALINA BASEBALL ENTERPRISES, INC.;
UNIFIED SCHOOL DISTRICT NO. 305;
and
KANSAS WESLEYAN UNIVERSITY
Relating to Dean Evans Stadium
This Agreement dated effective August ,6 , 2020 (the "Agreement") is entered into
among the City of Salina, Kansas, a Kansas municipal corporation ("City") and collectively the
"Salina Athletic Partners" including the following partners: Salina Baseball Enterprises,Inc., a
Kansas not-for-profit corporation ("Baseball Enterprises"); Unified School District No. 305,
Saline County, State of Kansas ("District"); and Kansas Wesleyan University, a Kansas not-
for-profit corporation ("KWU"). When used in this agreement "Party" refers to each of the City
and the Salina Athletic Partners and "Parties" refers collectively to the City and all of the Salina
Athletic Partners.
Recitals
A. In 2018 the Salina Athletic Partners initially presented a proposal to the City for a
multi-phase, $8M partnership project to enhance the baseball and softball experience in Salina for
local and visiting teams through upgrades to existing public facilities and construction of new
public facilities at the East Crawford Recreation Area, including Dean Evans Stadium, ("ECRA")
and Bill Burke Park.
B. On July 22, 2019, the City Commission adopted Resolution No. 19-7722
expressing its conceptual support for the objectives of the Salina Athletic Partners proposal,
expressing the City's desire to pursue a partnership with the Salina Athletic Partners within
parameters ultimately determined by the City Commission to be programmatically and financially
prudent and feasible, and authorizing staff to proceed with necessary preparations for the City's
participation in such a partnership; however, the Coronavirus pandemic precluded the City from
participating in the $8M partnership project, resulting in this Agreement relating to Dean Evans
Stadium.
1
C. The City and Baseball Enterprises are currently parties to the sixth renewal term of
an Agreement dated February 25, 1991 and Addendum to Agreement dated March 31, 1992 which
address matters relating to use and scheduling of Dean Evans Stadium and other ECRA baseball
facilities (the "Dean Evans Stadium Agreement"). The City and Baseball Enterprises intend by
this Agreement to terminate the Deans Evans Stadium Agreement effective December 31, 2020,
such that this Agreement shall control in all matters relating to use and scheduling of Dean Evans
Stadium commencing January 1, 2021.
D. The City and Salina Athletic Partners intend through this Agreement to address the
funding, design, construction, and maintenance of improvements to and the future scheduling of
Dean Evans Stadium.
THE PARTIES, therefore, agree and covenant:
1. Dean Evans Stadium Improvements.
1.1. Salina Athletic Partners. The Salina Athletic Partners agree to design,
independently contract for construction and installation, and fund the cost of a multi-task
program of improvements to Dean Evans Stadium ("Stadium") located in the East
Crawford Recreation Area ("ECRA") referred to as the "Dean Evans Stadium
Improvements" subject to the terms and conditions of this Agreement. The attached and
incorporated Exhibit A inventories the Dean Evans Stadium Improvements in terms of a
description of each component, budgetary cost estimates for each component, and a total
project budgetary cost estimate(the "Project").
1.2. City Participation in Drainage Improvements and Netting. The City
has completed Dean Evans Stadium drainage improvements authorized by Resolution No.
19-7769 (adopted by the City Commission on November 25, 2019). The City agrees to
pay the base cost equivalent to purchasing and installing the netting for the current Dean
Evans Stadium configuration. Baseball Enterprises agrees to pay the additional cost of
adapting and installing the netting to accommodate the patio seating component of the
Dean Evans Stadium Improvements. The City and Baseball Enterprises will coordinate
the timing of the post-patio seating project installation of the spectator protective netting.
2. Salina Athletic Partners Funding. The Salina Athletic Partners agree to fund the
cost of the Project and its contribution to the maintenance fund described in Section 4.5.3. below
in the following manner.
2.1. Salina Athletic Partners Funding Source. The City acknowledges that
Baseball Enterprises has and will continue to pursue contributions from principal users of
the City's public baseball facilities and from persons desiring to support Salina's baseball
tradition as the means of funding the cost of the Project.
2.1.1. Funds on Account; Line-of-Credit-Backed Pledges. The City is
advised that contributions toward the Salina Athletic Partners' funding of the
Project are being administered under both a project contributions account
2
maintained by Baseball Enterprises and a provisional account with the Greater
Salina Community Foundation ("GSCF") identified as the Salina Athletic Partners
Fund (collectively, the "Accounts"). The City is further advised that certain of the
private contributions to Salina Athletic Partners' funding of the Project are in the
form of pledges payable over a period of years which are backed by a consortium
of local banks in the form of a line of credit upon which Baseball Enterprises may
draw,subject to guidelines prescribed by the bank consortium,in the form of a bank
loan payable by Baseball Enterprises (the "Line of Credit").
2.1.2. District Participation. As a Salina Athletic Partner and a
significant user of the City's public baseball and softball facilities, the District has
agreed to pay$500K as part of its responsibilities under this Agreement in exchange
for a separate Facility Use Agreement to be entered into between the City and the
District in accordance with K.S.A. 72-1149 for use of the City's public baseball
and softball facilities for a period of 10 years with an option for two additional,ten-
year renewable periods upon written request to the City made 30 days prior to the
expiration of each term.
2.1.3. Naming Rights. As part of its fundraising efforts, Salina Athletic
Partners have expressed their desire to offer and propose the potential renaming of
ECRA. ECRA is subject to the City of Salina Municipal Facility Naming
Guidelines, including a five-step process contained in Resolution No. 17-7481
adopted October 9, 2017 (the "Naming Guidelines"). On July 27, 2020 the City
Commission adopted Resolution No. 20-7851 in completion of the first step under
the Naming Guidelines by identifying ECRA, in its entirety, as a qualified facility
for naming rights under the Naming Guidelines. The District has expressed its
desire to provide input regarding the potential renaming of ECRA in order to further
its interest in advocating that City facilities in which the District has committed to
invest its capital funding are suitably named as locations for secondary-level
student athletic competition. Salina Athletic Partners agree that when
communicating with prospective donors regarding the renaming of ECRA, its
representatives will inform prospective donors that any naming initiative is
ultimately subject to City Commission discretionary approval. The City agrees to
invite and consider input from an authorized representative of the District in
response to any proposed renaming of ECRA while retaining its ultimate
discretionary authority regarding the naming of City-owned facilities.
2.1.4 Required Certification of Availability of Funds as Condition
Precedent to Commencement of Improvements. As a condition precedent to
commencement of the Project, within ten business days after August 18, 2020,
Baseball Enterprises,the GSCF, and any banks backing pledges with lines of credit
must collectively provide to the City written certification of the amount and
availability of funds raised as of August 18, 2020 by the Salina Athletic Partners in
the form of(a) cash on deposit in the Accounts and (b)bank lines of credit secured
by pledges; in a combined amount of no less than $1.8M qualified and committed
for utilization toward the cost of the Project(the "SAP Funding"). Unless the SAP
3
Funding equals or exceeds $1.8M as of August 18, 2020, Baseball Enterprises, as
the contracting partner on behalf of Salina Athletic Partners, shall not enter into any
contracts for construction of any component of the Project, with the exception of
the patio seating component.
2.13. Required Availability of Funds as Condition Precedent to
Entering any Contract Exceeding $1.8M Aggregate Cost. As a condition
precedent to entering into any contract(s) for any component(s) of the Project
resulting in the Project exceeding an aggregate cost of$1.8M,Baseball Enterprises,
the GSCF, and any banks backing pledges with lines of credit must collectively
provide to the City written certification of the amount and availability of funds in
the form of(a) cash on deposit in the Accounts and (b)bank lines of credit secured
by pledges; in a combined amount equal to or greater than the cost of the proposed
contract(s). Unless such certification is provided, Baseball Enterprises, as the
contracting partner on behalf of Salina Athletic Partners, shall not enter into the
contract(s).
2.2. Funds Management.
2.2.1. Baseball Enterprises Project Account. Baseball Enterprises shall
maintain a Project Account to be funded with SAP Funding to pay for design,
construction, and installation costs of the Project and shall maintain all necessary
books, records and financial controls in accordance with generally accepted
accounting principles.
2.2.2. Accounting and Reporting. Following commencement of the
Project, Baseball Enterprises shall provide the City with a monthly accounting of
its Project Account receipts, disbursements and cash-on-hand no later than the 15th
of the following month. Baseball Enterprises shall not be required to identify any
private contributors when fulfilling the reporting requirement of this Section.
2.2.3. Audit. Baseball Enterprises shall annually have prepared and
submit to the Parties, at a minimum, a cash and transaction audit of its Project
Account by a certified public accountant.
3. Design, Construction, and Installation of Improvements.
3.1. City Authority; Design and Construction Advisory Group. Design and
construction of each component of the Project shall be conducted under the administrative
oversight of the city manager with the advice of a Design and Construction Advisory Group
made up of a representative for each of Baseball Enterprises, the District, the City, KWU,
and a licensed architect mutually agreed upon by each of the Salina Athletic Partners and
the city manager on behalf of the City. The Design and Construction Advisory Group will
meet and confer with the city manager as frequently as needed. The Parties acknowledge
the City's final discretionary authority regarding matters of design and construction as the
ultimate owner of all components of the Dean Evans Stadium Improvements.
4
3.2. Compliance with Applicable Law; Permits. The design,construction and
installation of each component of the Project shall be in accordance with all applicable
laws, including but not limited to the City Code. Baseball Enterprises, on behalf of the
Salina Athletic Partners, shall obtain or shall cause to be obtained all licenses, permits or
other approvals required by any governmental authorities to complete each component of
the Project.
3.3. Project Management and Contracting.
3.3.1. Baseball Enterprises as Contracting Entity; Process. Baseball
Enterprises shall serve as the contracting partner on behalf of Salina Athletic
Partners. For each component of the Project, Baseball Enterprises shall serve in
the lead role for each of the following stages, subject to City review and consent at
each stage:
• Development of the design for recommendation to the Design and
Construction Advisory Group and the city manager;
• Preparation of a proposed budget;
• Solicitation of sealed bids either, at the discretion of Baseball
Enterprises, by a generally publicized invitation to bid or by a
qualifications-based invitation to bid conducted according to the
Procedure for Turf Contractor Selection and Procurement attached and
incorporated as Exhibit B;
• Contracting upon approval by Baseball Enterprises board of directors;
• Administration of the contract, change orders, or contract amendments;
• City inspection and acceptance of the improvements; and
• Final payment pursuant to the contract.
3.3.2. Contract Document Requirements. For the reason that all
components of the Project are to be constructed and installed on City-owned public
property for ultimate acceptance and ownership by the City, all contracts entered
into by Baseball Enterprises for work to be performed as part of the Project must
include as an attached addendum to the contract the form"Addendum to Contract"
attached and incorporated as Exhibit C. Baseball Enterprises agrees that the City
reserves the right to modify the form Addendum to Contract under the authority
and discretion of the city manager as circumstances warrant. Upon completion of
any component of the Project by Baseball Enterprises and upon inspection and
approval of the completed component by the City, Baseball Enterprises shall
dedicate the completed component to the City.
3.4. Access to Dean Evans Stadium. The City grants a non-exclusive license
(the "License") to Baseball Enterprises and its employees, contractors, agents, and
volunteers for access to Dean Evans Stadium as is necessary to construct and install the
Patio Seating Project and the Dean Evans Stadium Improvements (the "Licensed Area")
subject to the following terms and conditions.
5
3.4.1. Maintenance and Control of Licensed Area. During construction
or installation of any component of the Project, Baseball Enterprises and its
employees, contractors, agents, and volunteers shall maintain the Licensed Area in
a safe and clean condition and shall regularly remove debris and surplus material
occasioned by the work. Baseball Enterprises (or its agents or its contractors if
expressly delegated by written contract) shall be responsible for site security and
securing construction tools, equipment, supplies, and materials left in the Licensed
Area. Baseball Enterprises shall consult and coordinate with the City regarding
construction scheduling to minimize any interference with scheduled events in the
Licensed Area.
3.4.2. Injury to Persons or Damage to Property. The City assumes no
liability and no expense by reason of its grant of the License to Baseball Enterprises,
or Baseball Enterprise's construction or installation of the Baseball Enterprises
Components. Likewise, the District and KWU assume no liability and no expense
for any injury or damage sustained by any persons or property by reason of its
contribution or participation under this Agreement. Baseball Enterprises is solely
responsible for any injury or damage sustained by an persons or property resulting
from any act or omission of Baseball Enterprises or its employees, contractors,
agents, volunteers,or any other persons performing any work in the Licensed Area
on behalf of or under the direction of Baseball Enterprises and shall immediately
notify the City's Risk Management Department at (785) 309-5705 in the event of
such injury to person(s) or damage to property.
4. Facilities Operations, Scheduling, and Maintenance.
4.1. Ownership and Control. The Parties acknowledge that following
construction and acceptance by the City of the Dean Evans Stadium Improvements, Dean
Evans Stadium shall remain under the ownership and control of the City. As such,the City
shall at all times have the right to control and designate the uses and scheduling of Dean
Evans Stadium, subject to the Salina Athletic Partners' respective scheduling priority
described in Section 4.4, and with the benefit of the recommendations of the ECRA
Advisory Board described in Section 4.2. and the Parks and Recreation Advisory Board,
as applicable.
4.2 ECRA Operations and Maintenance Advisory Board, Open Meetings.
The City agrees to establish and provide staff support for the ECRA Operations and
Maintenance Advisory Board(the"ECRA advisory board") for the purpose of developing
recommendations regarding use, maintenance, scheduling,potential future improvements,
fees, and concessions for the baseball and softball facilities at ECRA (the "ECRA
Facilities"). The ECRA advisory board shall consist of a representative of the following
entities to be designated as indicated:
• Baseball Enterprises, Inc. (as designated by Baseball Enterprises, Inc.)
• District (as designated by the District)
6
• KWU (as designated by KWU)
• City manager's office (city manager or designee)
• City parks and recreation department (department head or designee)
• Parks and recreation advisory board (one non-voting liaison between the two
boards annually appointed by mayor)
and representatives of each of the following interest groups to be nominated by the ECRA
advisory board, subject to ratification by the city commission, for appointment to no more
than two full consecutive terms of three years each:
• Baseball at-large representative
• Softball at-large representative
The ECRA advisory board will serve in an advisory role to the city manager regarding
administrative matters and to either the parks and recreation advisory board or the city
commission, as applicable,regarding policy matters.The ECRA advisory board shall meet
no less than quarterly and its meetings shall be conducted in compliance with the Kansas
open meetings act.
4.3. Termination of Dean Evans Stadium Agreement. The City and Baseball
Enterprises agree that the sixth extended term of the Deans Evans Stadium Agreement shall
remain in effect through December 31, 2020, at which time the Dean Evans Stadium
Agreement shall terminate and this Agreement shall control in all matters relating to use
and scheduling of the ECRA Facilities commencing January 1, 2021 and continuing for
the term of this Agreement(see Section 11).
4.4. Dean Evans Stadium Scheduling;Term;Logistics;Priority. Scheduling
of Dean Evans Stadium will be a city staff administrative function based upon the terms of
this Agreement and recommendations of the ECRA advisory board as the needs of the
Parties and other current and future users of Dean Evans Stadium evolve over the term of
this Agreement (see Section 11). The Parties acknowledge and agree that the level of
contribution to the cost of the Project shall be a factor in determining a Party's scheduling
priority. The City agrees to publish by January 1 of each year the submission deadlines for
potential users seeking to reserve use of Dean Evans Stadium. In the case of scheduled
practices at Dean Evans Stadium, the City reserves the authority to schedule a game of a
Party to be played at Dean Evans Stadium and to reassign the scheduled practice of any
other Party or user to another suitable ECRA facility.
4.4.1. Baseball Enterprises. Baseball Enterprises currently supports the
baseball program sponsored by the Salina, Kansas, American Legion which play
American Legion baseball. The scheduling priority allocated to Baseball
Enterprises pursuant to this Agreement applies to the American Legion baseball
program, as currently designated by Baseball Enterprises, or to such other program
serving youth of comparable ages as may in the future be designated by Baseball
Enterprises; provided, however, the scheduling priority allocated to Baseball
Enterprises pursuant to this Agreement is unique to Baseball Enterprises and shall
7
not be assignable to any other party. Upon the condition that Baseball Enterprises
submits its priority scheduling request by the date specified by city staff, Baseball
Enterprises shall be entitled to priority scheduling from the Saturday of Memorial
Day weekend through August 31 for the combination of Dean Evans Stadium plus
one additional ECRA premier facility and one ECRA supporting facility up to 15
calendar days per week for games and practices, including among those combined
facilities one premier facility of choice for seven days per calendar week and a
second premier field of choice for two days per calendar week.
4.4.2. District. The scheduling priority allocated to the District pursuant
to this Agreement applies to its high school baseball athletic programs and other
athletic activity requests. Upon the condition that the District submits its priority
scheduling requests by the date specified by city staff for each applicable season,
the District shall be entitled to priority scheduling for baseball games and practices
and other athletic activities during the spring and fall seasons and for other athletic
activity requests during the winter season.
4.4.3. KWU. The scheduling priority allocated to KWU pursuant to this
Agreement is subordinate to the District's priority and applies to its intercollegiate
baseball programs and other athletic activity requests. Upon the condition that
KWU submits its priority scheduling requests by the date specified by city staff for
each applicable season, KWU shall be entitled to priority scheduling, subject to the
District's priority, for baseball games and practices and other athletic activities
during the spring and fall seasons and for other activity requests during the winter
season.
4.5. Maintenance and Fees.
4.5.1. Maintenance of Improvements. Baseball Enterprises agrees to
assign to the City all warranties and maintenance contracts associated with each
component of the Project at the time of the City's acceptance of the applicable
improvement. The parties intend to assure that the Dean Evans Stadium
Improvements are well-maintained. In particular, the parties intend to assure that
the turf component is maintained and utilized in a manner that will maximize its
potential for a useful life of as much as 12-15 years before requiring full
replacement, including (a) the development and enforcement of rules relating to
proper use of turf fields and (b)the inclusion, as part of the turf installation cost, of
multiple replacement turf"panels" for selective partial replacement of turf in high
wear areas of the playing field such as the pitcher's mound,batter's box,and around
the bases.
4.5.2. User Fees. The Parties acknowledge that funding of future
maintenance of Dean Evans Stadium will be dependent,to the extent feasible,upon
fees for facility use consistent with those charged by other communities with
comparable facilities. The Parties agree that fees for facility use shall (a)be by the
game for games, (b) be by the hour for practices and other uses, (c) require
8
additional fees for use of lights, and (d) not be subject to waiver. However, a
graduated fee schedule will be implemented, taking into consideration the
respective contributions of each of the Salina Athletic Partners toward funding
construction of the Dean Evans Stadium Improvements relative to the total project
cost as well as the future contributions of other users toward improvements to or
maintenance of Dean Evans Stadium. The Parties express their intent and desire
that the ECRA advisory board when making its recommendations and the city
commission when establishing fees for facility use will also take into consideration
relevant factors, including, without limitation:
a. Cost of operation associated with use of a specific facility;
b. Cost of ongoing facility maintenance and repairs;
c. Capital costs associated with construction and maintenance of the
Public Facility Improvements;
d. Game play compared with practices;
e. Age and size of participants; and
f. Number of innings per game
4.5.3. Dedicated Turf Maintenance and Replacement Fund. The City
agrees to establish a dedicated fund for use in accumulating funds solely for use in
maintaining,repairing, and replacing the turfed surfaces at the Dean Evans Stadium
(the "Fund") at the ultimate discretion of the City with the benefit of
recommendations by the ECRA advisory board. The Fund will initially be funded
with proceeds from:
(a) An initial contribution by the City of$50,000 which shall be deposited
no later than December 31, 2021;
(b) A contribution from Salina Athletic Partners of$50,000,which shall be
made no later than December 31, 2021; and
(c) A targeted annual contribution of$50,000 by the City commencing on
or before December 31,2022 and each year thereafter,to be funded with
(i) user fees and private donations and (ii) City funds in an amount
matching the user fees and donations and not exceeding $25,000 per
year.
The City's contributions to the Fund shall be subject to the non-appropriation
provisions of Section 12.2. If the City fails to appropriate the funds necessary to
make its initial $50,000 contribution described above, Salina Athletic Partners shall
be relieved of the obligation of its$50,000 contribution. The City's governing body
may also allocate to the Fund any user fees and other financial resources as
determined under the City's annual budget and appropriation processes.
Expenditures from the Fund for the sole purposes of maintaining, repairing, and
replacing the turfed surfaces at Dean Evan's Stadium will be determined by the
City in its sole discretion, subject to the City's annual budget and appropriation
processes. The parties acknowledge that the Fund is not intended to be the sole
source of funding for replacement of the turfed surfaces at Dean Evans Stadium
9
and that replacement of the turf component in approximately 12 years will be
dependent upon facility user fee increases, additional fundraising efforts, or other
yet-to-be-identified sources of funding.
5. Administration of Agreement. All references in this Agreement requiring the City's
participation or approval shall mean the participation or approval of the city manager or the city
manager's designee, unless otherwise provided herein.
6. Separate Entity. It is understood and agreed that the City is an entity separate
from the Salina Athletic Partners individually and collectively and that no relationship of
principal/agent or employer/employee exists between the City and the Salina Athletic Partners
individually or collectively. Persons employed by the City shall be entirely and exclusively under
the control, direction and supervision of the City. All terms of employment, including hours,
wages, working conditions, discipline, hiring and discharging or any other term of employment
shall be determined by the City. While the Salina Athletic Partners have agreed to participate
collectively for the general purpose of advancing the goals of this project, nothing within this
Agreement is intended to and will not constitute,create, give rise to, or otherwise recognize a joint
venture, or formal business association or organization of any kind between the District and the
City or the District and the other Salina Athletic Partners.
7. Assignment. The Parties acknowledge that participation under this Agreement is
based upon the unique nature and role of each of the Parties. Consequently,neither this Agreement
nor any interest in it shall be assigned or transferred by a Party.
8. Amendment. This Agreement may be amended from time to time upon the
unanimous approval of all of the Parties documented by a writing specifically stating the amended
terms and signed by an authorized representative of each of the Parties.
9. Default. If any Party fails to comply with any term of this Agreement within ten
(10) days after written notice to comply has been mailed by the non-defaulting Party to the
defaulting Party, such failure shall be deemed an immediate breach of this Agreement ("Event of
Default").
10. Remedies. Upon the occurrence of an Event of Default, the non-defaulting party
shall have the following rights and remedies,in addition to any other rights and remedies provided
under this Agreement or by law:
10.1. Termination.The non-defaulting Party shall have the right to terminate this
Agreement or terminate the defaulting Party's rights under this Agreement.
10.2 Other Remedies. The non-defaulting Party may pursue any available
remedy at law or in equity (including specific performance) by suit, action, mandamus or
other proceeding to enforce and compel the performance of the duties and obligations set
forth in this Agreement, to enforce or preserve any other rights or interests of the non-
defaulting Party under this Agreement or otherwise existing at law or in equity and to
10
recover any damages incurred by the non-defaulting Party resulting from such Event of
Default.
11. Term. This Agreement shall commence effective upon its execution by all parties
and shall remain in effect until December 31, 2050, unless otherwise terminated pursuant to the
terms of this Agreement.
12. General Provisions.
12.1 Time. Time is of the essence in this Agreement and for the performance of
all covenants and conditions of this Agreement.
12.2 Non-appropriation. The Parties acknowledge that the City and the District
are subject to Kansas cash basis laws, and that payment of the obligations of the City and
the District under this Agreement can only be paid from appropriated funds legally
available for such purpose. Nothing in this Agreement shall be interpreted or construed as
a commitment or requirement that the City or the District obligate or pay funds in
contravention of applicable Kansas law.
12.3. Entire agreement. This Agreement constitutes the entire agreement
among the parties and supersedes all prior agreements and understandings pertaining
thereto, whether written or oral. No covenant,representation or condition not expressed in
this Agreement shall affect or be deemed to interpret, change or restrict the express
provisions of this Agreement.
12.4. Feminine-Masculine, Singular-Plural. Wherever used, singular shall
include the plural,plural the singular, and use of any gender shall include all genders.
12.5. Kansas Law—Interpretation. This Agreement and its validity,construction,
and performance shall be governed by the laws of Kansas. This Agreement shall be
interpreted according to its fair meaning,and not in favor of or against any party.
12.6. Notices. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and delivered personally or sent by registered or certified
mail, return receipt requested, or by generally recognized, prepaid, commercial courier or
overnight air courier service. Notices shall be addressed as appears below for each party:
City of Salina,Kansas: City Clerk
300 W. Ash St.
P.O. Box 736
Salina, KS 67402-0736
Salina Baseball Enterprises, Inc.: Kenneth H. Hancock
Co-Executive Director
1831 Hillcrest Lane
Salina, KS 67401
11
USD 305: Kris Upson, Executive Director
Facilities &Operations
1511 Gypsum Street
Salina, KS 67401
Kansas Wesleyan University: Steve Wilson
Director of Athletics
100 E. Claflin Avenue
Salina, KS 67401
12.7. Invalidity in part. In the event that any condition, covenant or other
provision contained in this Agreement is held to be invalid or void by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of this
Agreement and shall in no way affect any other condition, covenant, or provision herein
contained. In the event a provision is deemed invalid, the Parties agree to amend this
Agreement to include a new condition, covenant, or other provision that replicates as
closely as is legally possible under Kansas law the intent of the severed provision.
12.8. Authorized signatories. Each signatory executing this Agreement does
thereby represent and warrant to the other Parties that the signatory has been duly
authorized to deliver this Agreement in the capacity and for the entity for which the
signatory acts.
12.9. Headings. The headings of the sections of this Agreement are included for
the purposes of convenience only and shall not affect the interpretation of any provision of
this Agreement.
12.10. Venue. In the event of any legal action to enforce or interpret this Agreement,
the sole and exclusive venue shall be in the District Court of Saline County, Kansas.
12.11. Parties Bound.This Agreement shall extend to and bind the Parties and their
successors.
12.12. Waiver. No failure or delay by a Party hereto to insist on the strict
performance of any term of this Agreement,or to exercise any right or remedy consequent to
a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such
term.
12.13. No Third Party Beneficiaries. Solely the parties to this Agreement shall
have rights and may make claims under this Agreement. There are no intended third-party
beneficiaries under this Agreement, and no third parties shall have any rights or make any
claims hereunder.
12
12.14. District Mandatory Contract Provisions. The Provision found in
Contractual Provisions Attachment (Form DA-146a, Rev. 07-19), which is attached hereto,
are hereby incorporated in this contract and made a part thereof.
IN WITNESS WHEREOF, each of the Parties,by its duly authorized representative, has
executed this Agreement on the date shown below the representative's signature.
(No further text; signature pages follow)
13
CITY OF SALINA, KANSAS
Michael L. Hoppoc , ayor
Date: kL4t - , 2020
Attest: J
Sfatidi
Shandi Wicks, CMC, City Clerk
Error!Unknown document propert% name.
SALINA BASEBALL ENTERPRISES, INC.
/ ;7 .—
Tyler Ienoch, President
Date: /p/d3 _, 2020
il.P..///:i t 4`41T!%
Ke neth H. ancock, Co-Executive Director
Date: SOS _, 2020
ke,r J�ct .
ByronV. Tomlins, Co-Executive Director
Date: /0/06— _, 2020
16
U ii, D S I IOL DISTRICT NO. 305
Iiot A
., i .kizao"
Ifi rant, Mid President
Dat-. „ : ? , 2020
Attest:
Deborah S. Howard, Board Clerk
16
KANSAS WESLEYAN UNIVERSITY
i
Matt Thompson, President and CEO
Date: *4e .'hei c24, 2020
17
Exhibit A
Page A-1
Salina Baseball Enterprises
Dean Evans Stadium Improvements Cost Estimate(Revision 04/01/20)
Description Unit tf Units Unit Cost Budgetary cost Est. Notes/Comments
Dean Evans Stadium Improvements $1,408,000
Playing Field Improvements $1,213,500
Total field artificial turf system sq.ft 134,000 $7.25 $971,500
Misc.improvements(for turf installation) LS 1 $25,000 $25,000 allowance for misc.additional work if necessary for turfing
Sprinkler system modifications N/A $0 to accommodate turf;by City if req'd
Field lighting Improvements LS 1 $200,000 $200,000 allowance to add new LED luminaries to existing poles
New scoreboard N/A $0 retain existing scoreboard installed in 2017
Bullpen modifications/upgrades 1 $17,000
Install bullpens on playing field $8,500 allowance for fencing,etc.to accommodate bullpens on playing field
Tarp roof over bullpens SF 2,000 $3 $6,000 1,000 sq.ft per bullpen
Misc.Additional improvements L5 1 $2,500 $2,500 allowance
Dugout Improvements L5 2 $15,000 $30,000 allowance for lighting,new finishes,benches,etc.
Press box Renovations $13,500
upgrade interior finishes LS 1 $5,000 $5,000 allowance for misc.painting,etc.
HVAC system N/A $0 completed in 2018
general and task lighting improvements LS 1 $5,000 $5,000 allowance
refrigerator LS 1 $1,000 $1,000 allowance
misc.repairs LS 1 $2,500 $2,500 allowance for masonry repair,weatherproofing,caulking,etc.
Misc.Site and Stadium Repairs and Improvements I $34,000
General Painting and Coatings Repair LS 1 $10,000 $10,000 allowance
Misc.Ste and Stadium Repairs and Improvements LS 1 $20,000 $20,000 allowance
Turf Maintenance Equipment EA 1 $4,000 $4,000 allowance(cost estimate from turf supplier)
New Women's Toilet and Misc.Toilet Improvements
based on remodeling existing Concessions/Toilets at Dean Evans;includes new
Re-purpose DE Concession(general,structural,mech, LS 1 $100,000 $100,000 women's toilet,remodel exist.Men's toilet,remodel exist.Women's toilet into
elect) uni-sex/baby changing room,ventilation work,etc.
Dean Evans Covered Batting Cages
Batting cage(netting) EA 4 51,010 $4,"based on four,55'batting cages;65'L X 15'W slabs
Batting cage fame EA 4 $1,500 $6,000
Concrete slab Cy 50 5250 $12,500
Electric service/electrical IS 1 $5,000 $5,0°°allowance
Lighting L5 1 $2,500 52,500 allowance
Tarp roof SF 3600 $2 $7,200 based on four tarps 60'x15'to provide overhang
Concessionaires Accommodations(concrete slab) 1.111=located near north parking area
Concrete slab LS 1 $10,000 $10,000
Utilities I
water service L5 1 $2,500 $2,500 allowance for extension of existing utility
electric service L5 1 $5,000 $5,000 allowance for extension of existing utility
Budgetary Dean Evans Sub-Total Raw Costs $1,455,500
Exhibit A
Page A-2
Salina Baseball Enterprises
Dean Evans Stadium Facilities Improvements Cost Estimate Totals (Revision 04/01/20)
Description Budgetary Cost Est. Notes/Comments
Non-Renovation Work Items
Patio Seating at Dean Evans $150,000 included as part of the project
Dean Evans Stadium Renovations $1,455,500 Dean Evans turf costs: $971,500(fully turfed infield and outfield)
ECRA Facility Signage $50,000 Allowance-signage will be developed and installed depending on naming rights
Budgetary Raw Cost Subtotal Total $1,505,500
General Conditions $53,400 10%of raw construction costs(less turf contractor costs of$971,500)
Erosion Control $20,000 allowance-may not be necessary since site is existing
Contingency $106,800 20%of construction costs(less turf contractor costs of$971,500)
A/E Fees $53,400 10%of raw construction costs (less turf contractor costs of$971,500)
Building Permits $10,000 allowance
Construction Bond(non-turf related) $5,340 1.0%of construction costs
Sales Tax $0 assumes sales tax exempt due to USD 305 tax status and SBE 501c-3 status
Project Budgetary Cost Total $1,754,440
Exhibit B
SBE Procedure for Turf Contractor Selection and Procurement
1. Develop a list of potential pre-qualified turf contractors (suppliers / installers) based on
national and regional reputation and previous experience on similar size and scope projects,
using the previous experience of various Salina Athletic Partners members on turf installation
projects and consulting with SBE design professional for additional recommendations.
2. From the list of potential contractors, select 3-4 pre-qualified turf contractors identified as
best qualified to be part of the sealed competitive bid process.
3. From each of the selected pre-qualified turf contractors request:
• product data on the various turf products offered
• information about where their turf is manufactured and by whom
• do they manufacture their own turf and/or do they have a carpet manufacturer that
exclusively manufacturers turf to their specifications?
• suggestions on specific types of turf products, minimum turf weight recommended,
sub-base products and procedures, and in-fill products they recommend for our project
• geographic locations and contact information for previous specific relevant projects
similar to ours
• contact names for relevant projects
• potential things to avoid
4. Meet privately with each selected pre-qualified turf contractor to hear first hand about their
company, see their turf products, discuss our specific project, etc.
5. Visit selected sites / projects of each of the potential bidders.
6. Develop a Request for Proposal (RFP) and send to each pre-qualified turf contractor
selected to submit a sealed bid.
7. Receive sealed bids and have a contractor selection team consisting of a representative
from SBE, City of Salina, and USD 305 evaluate and individually rank each proposal based
on:
• completeness of response to RFP
• availability to complete the project within our stated timeline base bid cost
• proposed alternative bid considerations submitted (if any)
• recommended changes / improvements to base bid requirements and associated
costs (if any)
• previous relative experience and local or regional projects completed (if any)
7. Select the successful turf contractor after comparing the evaluations made by the
contractor selection team, discussing any recommended suggestions and costs (additions or
savings) from base bid, ultimately selecting the contractor that represents the highest value
for our project.
8. SBE will contact the selected turf contractor and enter into construction contract with
contractor naming the City of Salina as an additional insured.
Exhibit C
I
CITY OF SALINA CONTRACTUAL PROVISIONS ADDENDUM
This Addendum to is entered into this day of , 20 ,by and between
Baseball Enterprises, Inc., a Kansas corporation ("Baseball Enterprises"), and
,a ("Contractor").
Recitals
A. Baseball Enterprises is a party to an agreement with the City of Salina, Kansas ("City"),
dated , 2020 (the "Dean Evans Stadium Agreement"), setting forth the terms and
conditions under which the City, Baseball Enterprises, and certain other parties collectively identified as
the "Salina Athletic Partners" will make contributions to the proposed improvements to Dean Evans
Stadium("Improvements").
B. Pursuant to the Dean Evans Stadium Agreement,Baseball Enterprises and the City agreed
that Baseball Enterprises will incorporate certain mandatory contractual provisions into all contractual
agreements related to work to be performed on the Improvements.
C. Baseball Enterprises and the Contractor have entered into a contract, dated
, 20_, providing for Contractor's provision of in
connection with the Improvements("Agreement").
D. This Addendum contains the mandatory contractual provisions required by the City to be
attached to and incorporated in the Agreement between Baseball Enterprises and the Contractor.
The parties, in consideration of the mutual promises set forth in this Addendum and the
Agreement,agree and covenant:
1. Incorporation of Addendum: Order of Precedence. This Addendum, including the
Recitals set forth above, is hereby incorporated into the Agreement as though more fully set forth therein.
The requirements of this Addendum will take precedence of any inconsistent provisions in the Agreement.
2. Designation of City as Third-Party Beneficiary. The Contractor agrees that the City is
an express third-party beneficiary of the provisions of this Addendum, shall be entitled to the rights and
benefits hereunder, and may enforce the provisions of this Addendum in the same manner as if it were a
party hereto.
3. Insurance Requirements.
3.1. Types and Amount of Coverage. The Contractor agrees to obtain insurance
coverage as specified in the attached and incorporated Insurance Requirements Summary and shall not
make any material modification or change from these specifications without the prior approval of the City.
If the Contractor subcontracts any of its obligations under the Agreement,the Contractor shall require each
such subcontractor to obtain insurance coverage as specified in the Insurance Requirements Summary.
Failure of the Contractor or its subcontractors to comply with these requirements shall not be construed as
a waiver of these requirements or provisions and shall not relieve the Contractor of liability.
3.2. Rating.All insurance policies shall be issued by insurance companies rated no less
than A- VII in the most recent `Bests" insurance guide and admitted in the State of Kansas. Except as
otherwise specified in the Insurance Requirements Summary, all such policies shall be in such form and
contain such provisions as are generally considered standard for the type of insurance involved.
3.3. Certificate of Insurance. Prior to commencing the performance of any work or
services under the Agreement, the Contractor shall furnish the City with a certificate of insurance listing
the City as the Certificate Holder and evidencing compliance with the insurance requirements in the
Agreement. The City reserves the right to require complete certified copies of all insurance policies
procured by the Contractor pursuant to the Agreement, including any and all endorsements affecting the
coverage required hereunder.
4. Indemnification. To the fullest extent permitted by law, the Contractor shall defend,
indemnify and hold harmless the City, its agents, representatives, officers, officials and employees from
and against all claims, damages, losses and expenses(including but not limited to attorney fees and court
costs) attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of
property, including loss of use resulting therefrom, to the extent that such claims, damages, losses, and
expenses relate to, arise out of, or are alleged to have resulted from the wrongful acts, errors, mistakes,
omissions, or defective work or services of the Contractor, its employees, agents, or any tier of
subcontractors in the performance of the Agreement.
5. Injury to Persons or Damage to Property. The Contractor acknowledges responsibility
for any injury to person(s)or damage to property caused by its employees or agents in the performance of
its duties under the Agreement and shall immediately notify the City's Risk Management Department at
(785)309-5705 in the event of such injury to person(s)or damage to property.
6. Applicable Law; Venue. The Agreement and its validity, construction and performance
shall be governed by the laws of Kansas. In the event of any legal action to enforce or interpret the Agreement,
the sole and exclusive venue shall be in the Saline County,Kansas District Court.
7. Equal Opportunity. In conformity with the Kansas act against discrimination and Chapter
13 of the Salina Code,the Contractor and its subcontractors,if any,agree that:
(1) The Contractor shall observe the provisions of the Kansas act against discrimination and
Chapter 13 of the Salina Code and in doing so shall not discriminate against any person in the
performance of work under the Agreement because of race, sex, religion, age, color, national
origin,ancestry or disability;
(2) The Contractor shall include in all solicitations, or advertisements for employees, the phrase
"equal opportunity employer,"or a similar phrase to be approved by the City's human relations
director;
(3) If the Contractor fails to comply with the manner in which the Contractor reports to the Kansas
human rights commission in accordance with the provisions of K.S.A. 44-1031 and
amendments thereto, the Contractor shall be deemed to have breached the Agreement and it
may be canceled,terminated or suspended,in whole or in part,by the City;
(4) If the Contractor is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas
act against discrimination under a decision or order of the Salina human relations commission
or the Kansas human rights commission which has become fmal, the Contractor shall be
deemed to have breached the Agreement and it may be canceled,terminated or suspended, in
whole or in part,by the City;
(5) The Contractor shall not discriminate against any employee or applicant for employment in the
performance of the Agreement because of race, sex, religion, age, color, national origin,
ancestry or disability; and
(6) The Contractor shall include similar provisions in any subcontract under the Agreement.
2
8. Construction Requirements. If the Contractor is obligated under the Agreement to
construct or make repairs to any portion of the Improvements,Contractor shall comply with the following
requirements:
8.1. Performance and Payment Bonds. If compensation payable to Contractor for work
on the Improvements exceeds$50,000,then prior to the commencement of any work on the Improvements,
the Contractor shall furnish a performance bond,running independently to the City,and a statutory payment
bond running to the state of Kansas. The performance bond shall be conditioned upon the prompt,full,and
complete performance by the Contractor as principal of its covenants, obligations, and agreements as
contained in the Agreement and related contract documents, including but not limited to performance by
the Contractor of its warranty obligations set forth in Section 9 below. The statutory payment bond shall
be conditioned upon the Contractor, as principal, paying all indebtedness incurred for labor, supplies,
equipment, and materials furnished in making the Improvements called for by the Agreement and related
contract documents. Each bond shall be in an amount at least equal to the contract price for the
Improvements. The form of each bond shall be subject to approval by the City. Each bond shall be executed
by such sureties as are authorized to conduct business in the state of Kansas. All bonds signed by an agent
must be accompanied by a certified copy of the agent's authority to act. The performance bond shall be
delivered to the City Clerk. The Contractor shall file the payment bond with the Clerk of the Saline County
District Court in accordance with K.S.A. 60-1111(b)and deliver a file-stamped copy to the City Clerk.
8.2. Contractor's Warranty to City.
A. If within two years after fmal completion of the Improvements as a whole (as
evidenced by fmal payment and release of all retainage), any Improvements
constructed by the Contractor or its subcontractors are found to be defective,the
Contractor shall promptly, without cost to the City and in accordance with the
City's written instructions:
(i) Correct such defective Improvements; or
(ii) If the defective Improvements have been rejected by the City, remove and
replace them with Improvements that are not defective; and satisfactorily
correct or repair, or remove and replace, any damage to other Improvements
or other land or areas resulting therefrom.
B. If the Contractor does not promptly comply with the terms of the City's written
instructions, or in an emergency where delay would cause serious risk of loss or
damage, the City may have the defective Improvements corrected or repaired or
may have the rejected Improvements removed and replaced. All claims, costs,
losses,and damages(including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court costs) arising out of or
relating to such correction or repair or such removal and replacement (including
but not limited to all costs of repair or replacement of work of others)will be paid
by the Contractor.
C. Where defective Improvements (and damage to other Improvements resulting
therefrom)has been corrected or removed and replaced under this paragraph,the
warranty period hereunder with respect to such Improvements will be extended for
an additional period of two years after such correction or removal and replacement
has been satisfactorily completed.
3
D. The obligations under this paragraph are in addition to any other obligation or
warranty, and shall not be construed as a substitute for, or a waiver of, the
provisions of any applicable statute of limitations or repose.
IN WITNESS WHEREOF,the parties hereunto have executed this Addendum this day of
,20
[CONTRACTOR NAME], [Contractor Legal Entity]
By:
Name:
Title:
Date: ,20
SALINA BASEBALL ENTERPRISES,INC.,
a Kansas not-for-profit corporation
By:
, President
Date: , 20
4
INSURANCE REQUIREMENTS SUMMARY
Pursuant to Section 3 of the Addendum, the Contractor shall obtain,pay for, and maintain—
and shall require each of its authorized subcontractors to obtain and maintain—for the duration of the
Agreement,policies of insurance meeting the following requirements:
1. General Requirements.
A. Additional Insured. With the exception of the workers' compensation and
professional liability policies to be obtained by the Contractor hereunder, all policies shall name
the City of Salina ("City"), its agents, representatives, officers, officials, and employees as
additional insured(s). Insurance for the additional insured shall extend to Products/Completed
Operations and be as broad as the insurance for the named insured, including defense expense
coverage, and,with respect to the commercial general liability policy required hereunder, shall be
endorsed to apply as primary and non-contributory insurance before any other insurance or self-
insurance, including any deductible,maintained by, or provided to,the additional insured(s).
B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver
of subrogation in favor of the City, its agents,representatives, officers, officials, and employees.
C. Claims Made Policies. If coverage is written on a claims-made basis for any of the
policies required by this Agreement,the Contractor must maintain the coverage for a minimum of
two (2)years from the date of final completion of all work under the Agreement.
D. Premium and Deductible Expenses. The Contractor shall be responsible for all
premiums and retention or deductible expense for any and all policies required by this Agreement.
2. Specific Coverage Requirements.
A. Commercial General Liability ("CGL"). The Contractor shall maintain CGL
coverage written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover
liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations,
Products and Completed Operations, Contractual Liability, Independent Contractors and
Advertising Injury. The policy limits shall not be less than the following:
• Each occurrence $1,000,000
• General aggregate $2,000,000
• Personal and Advertising Liability $1,000,000
The policy shall contain an endorsement that modifies the general aggregate to apply separately to
each project. The Contractor shall maintain the Products and Completed Operations liability
coverage for a period of at least two (2)years after completion of all work under the Contract.
B. Business Automobile Liability ("BAL"1. The Contractor shall maintain BAL
coverage written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable
5
to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired,
rented or used by the Contractor and include automobiles not owned by but used on behalf of the
Contractor. The BAL policy limits shall not be less than the following:
• Combined single limit $1,000,000
C. Workers' Compensation/Employer's Liability. The Contractor shall maintain
workers' compensation and employer's liability coverage with policy limits not less than the
following:
• Workers' Compensation(Coverage Part A)
o Statutory
• Employer's Liability(Coverage Part B)
o $100,000 each accident
o $500,000 disease—policy limit
o $100,000 disease—each employee
6