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Saline County Fair Association Lease Agreement LEASE AGREEMENT between THE CITY OF SALINA, KANSAS and THE SALINE COUNTY FAIR ASSOCIATION,INC. This Lease Agreement is entered into thistillIday of February 2021 between the CITY OF SALINA, KANSAS, a municipal corporation, (the "City") and the SALINE COUNTY FAIR ASSOCIATION, INC., a Kansas not-for-profit corporation, (the "SCFA"). Recitals A. The SCFA annually conducts the Tri-Rivers Fair(the "Fair"). B. On July 27,2020,the City and Saline County entered into a long-term lease for that portion of Kenwood Park commonly known as the Saline County Expo Center, in part for the purpose of conducting the Fair in conjunction with the SCFA; however, at the election of the County,the leased area no longer includes the Arena Area or the Arena Staging Area(the "Arena Facilities"). C. The City intends to demolish the Arena Facilities and redevelop the site as the City has received redevelopment solicitations from Net Generations, a local tennis not-for-profit entity desiring to raise funds and construct a tennis complex on the Arena Facilities site and adjoining property owned by the City. D. At the request of the SCFA and with the cooperation of Net Generations, the City is willing to lease the Arena Facilities to the SCFA (1) upon terms resulting in no expense to the City and (2) only for so long as will allow for SCFA's use of the Arena Facilities for: (a) arena events during the 2021 Fair(August 4-8,2021); (b) other one-time, non-repetitive uses conducted by the SCFA or its sublessees prior to the 2021 Fair; (c) continued use of the Arena Staging Area as a dog park, at the discretion of the SCFA; and (d) removal of the SCFA's personal property from the Arena Facilities after the 2021 Fair. The City and the SCFA agree and covenant: Section 1. Leased Area and Personal Property. 1.1. Leased Area. The City owns Kenwood Park, which includes the area of Kenwood Park known as the Arena Area and the Arena Staging Area depicted on the attached and incorporated Exhibit A (the "Arena Facilities"). The City leases to the SCFA the Arena Facilities (the "Lease") pursuant to the terms of this Lease Agreement. 1.2. Personal Property. Saline County has transferred to the SCFA ownership of certain personal property utilized in staging events at the Arena Facilities listed on the attached and incorporated Exhibit B (the "Personal Property"). The Personal Property may be appropriately stored at the Arena Facilities and utilized by SCFA or its sublessees for events conducted at the 1 Arena Facilities. The Personal Property and dirt belonging to the SCFA, also used for staging events, shall remain the property of SCFA and shall be removed from the Arena Facilities by the SCFA on or before the SCFA relinquishes possession of the Arena Facilities upon termination of the Lease. Section 2. Effective Date and Lease Term. This Lease Agreement shall be effective upon execution by both the City and the SCFA (the "Effective Date"). The term of the Lease (the "Lease Term") shall commence as of the Effective Date and shall remain in effect until September 10, 2021, unless otherwise terminated pursuant to the terms of this Lease Agreement. Section 3. Future Use by City; Consideration for SCFA's Interim Use. The City and the SCFA acknowledge and agree: (a) The City intends to ultimately demolish or sell as surplus material what is commonly known as the Tri-Rivers Stadium as well as any other remaining Arena Facilities site improvements in order to redevelop the Arena Facilities site; (b) The City's willingness to lease the Arena Facilities to the SCFA is specifically in response to the SCFA's request to continue use of the Arena Facilities for arena events during the 2021 Fair and other one-time,non-repetitive events conducted by the SCFA or its sublessees prior to the 2021 Fair; (c) The City is under no obligation to maintain the Arena Facilities for those uses and in their current configuration; (d) The City's interests include assuring that SCFA is responsible for (i) maintaining the Arena Facilities in a safe condition during the Lease Term and (ii) relinquishing possession of the Arena Facilities to the City in a safe and secure condition at the end of the Lease Term; and (e) Under current circumstances,the public interest is served by the City not charging the SCFA monetary rent for the Lease Term, but instead, as consideration for use of the Arena Facilities,the SCFA agrees to be responsible for all expenses associated with its use and maintenance of the Arena Facilities pursuant to the terms of this Lease Agreement. Section 4. SCFA Authorized Uses. 4.1. Authorized Use. The SCFA's authorized uses of the Arena Facilities shall be limited to:(a) arena events during the 2021 Fair; (b)other one-time,non-repetitive uses conducted by the SCFA or its sublessees prior to the 2021 Fair; (c) continued use of the Arena Staging Area as a dog park, at the discretion of the SCFA; and (d) removal of the Personal Property and dirt owned by the SCFA from the Arena Facilities after the 2021 Fair. 2 4.2. Subleasing or Event-based Rental. Between commencement of the Lease Term and the 2021 Fair, the SCFA may either (a) sublet or (b) rent to third parties on a one-time, non- repetitive, event-by-event basis any or all of the separate facilities within the Arena Facilities. Section 5. Ongoing Maintenance and Repair. 5.1. The SCFA acknowledges that it is familiar with the condition of the Arena Facilities from its past use and agrees to accept possession of and maintenance responsibility for the Arena Facilities in their current"as is"condition for purposes of its authorized uses during the Lease Term. As partial consideration for use of the Arena Facilities, the SCFA shall be solely responsible for maintaining and repairing the Arena Facilities in accordance with the standards and covenants set forth in this Lease Agreement throughout the Lease Term. The SCFA agrees, at its expense, to: (a) General site maintenance. Maintain the Arena Facilities in a neat, clean, sanitary, and orderly condition; (b) Required by law or insurance policies. Maintain the Arena Facilities in a condition conforming to the requirements of all applicable statutes, ordinances, regulations, and other requirements of any governmental authority, and the requirements of all policies of insurance maintained in force on or with respect to the Arena Facilities pursuant to this Lease Agreement; (c) Building interiors. Maintain all Arena Facilities interiors, fixtures, equipment, and systems in safe and functional condition and repair; (d) Building exteriors. Maintain all Arena Facilities exteriors and exterior improvements in at least as safe and functional condition and repair as existed upon commencement of the Lease Term; and (e) Property damage. Promptly repair any property damage to the Arena Facilities occurring during the Lease Term from any cause in such a manner that meets the approval of the City, in the City's sole discretion, in assuring that the Arena Facilities are in a safe and secure condition for the remainder of the Lease Term and when possession is restored to the City at the end of the Lease Term. 5.2. Inspections. The City reserves the right to initiate inspections upon reasonable notice to the SCFA for the purpose of evaluating the SCFA's compliance with this Section 5. 5.3. Deficiencies; Meet and Confer. If the City determines that buildings, improvements, fixtures, equipment, or systems as part of the Arena Facilities are not being maintained or repaired as required under Section 5.1, the City may provide written notice to the SCFA describing the deficiencies and requesting the opportunity for representatives of the City and the SCFA to promptly meet and conduct good faith discussions toward resolution of any matters regarding the deficiencies, the work required to cure the deficiencies, and a schedule for completion of the necessary work by the SCFA. 3 5.4. Notice to Cure. If the SCFA is unwilling to meet and confer or if the City and the SCFA are unable to reach agreement on any of the points of discussion addressed in the meet and confer process described in Section 5.3, the City may provide written notice to SCFA of a reasonable time period of no less than 10 days to cure the deficiencies, based upon the nature and extent of the deficiencies. 5.5. Event of Default. Failure by the SCFA to either (a) perform agreements reached between the City and the SCFA under the meet and confer process described in Section 5.3 or(b) to cure any deficiencies within the time period provided under Section 5.4 shall, without further notice, constitute an event of default under this Lease Agreement. Section 6. Compliance with Law and Licensing Requirements. The SCFA and its sublessees shall comply with all applicable laws, ordinances, and regulations applicable to its use and operation of the Arena Facilities. The SCFA shall be responsible for assuring compliance with applicable law and licensing requirements relating to all events occurring at the Arena Facilities involving the sale, service, or consumption of alcoholic liquor or cereal malt beverage. Section 7. Non-Liability of City. The City has neither been in active occupancy nor responsible for maintenance of the Arena Facilities for many years and disavows any responsibility for their current condition. As stated in Section 5.1 above, the SCFA accepts possession and maintenance responsibility for the Arena Facilities in their current "as is" condition. The SCFA and its sublessees shall be in exclusive possession and control of the Arena Facilities under the Lease. The City shall not be liable for any injury to any person on or about the Arena Facilities,damage to any property on or about the Arena Facilities, or damage to the Arena Facilities. Section 8. Indemnification. In this Section,the meaning of the term"employee"is as defined by the Kansas tort claims act,as amended. The SCFA shall defend, indemnify and hold harmless the City and its employees from and against all claims, costs, expenses (including reasonable attorney's fees), demands, judgments and causes of action for personal injury, death, and/or damage to property arising out the SCFA's use of the Arena Facilities, except to the extent to which such claims, costs,expenses, demands,judgments and causes of action arise from the negligent acts or omissions (or whatever standard of conduct may be applicable to the City's acts or omissions under the Kansas tort claims act,as amended,including,but not limited to,gross and wanton negligence pursuant to recreational use immunity)or intentional misconduct of employees of the City. Section 9. Insurance. 9.1. General Public Liability Insurance. The SCFA agrees to procure and maintain comprehensive general public liability insurance covering its use of the Arena Facilities, with limits of not less than the following: 4 • Each occurrence $1,000,000 • General aggregate $2,000,000 • Personal and Advertising Liability $1,000,000 9.2. Physical Property Damage Insurance. The SCFA may, at its discretion, procure and maintain physical property damage insurance covering the Arena Facilities and the Personal Property against loss or damage by such perils and at such levels of coverage as are deemed prudent by the SCFA. In the event of a covered loss relating to the Arena Facilities (not the Personal Property),the SCFA agrees to utilize the insurance proceeds as agreed upon between the SCFA and the City. 9.3. General Requirements. 9.1.1. Additional Insured. 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 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). 9.1.2. 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. 9.1.3. Claims Made Policies. If coverage is written on a claims-made basis for any of the policies required by this Lease Agreement, the SCFA must maintain the coverage for a minimum of two (2) years from the date the SCFA surrender's possession of the Arena Facilities pursuant to this Lease Agreement. 9.1.4. Premium and Deductible Expenses. The SCFA shall be responsible for all premiums and retention or deductible expense for any and all policies required by this Agreement. 9.1.5. Proof of Coverage. The SCFA shall deliver to the City insurance certificates for the insurance described in this Section upon execution of this Lease Agreement and upon the SCFA's annual renewal of such insurance. The SCFA shall immediately inform the City upon the SCFA's receipt of a notice of cancellation of such insurance and take all steps necessary to avoid an interruption in coverage. Section 10. Taxes and Liens. During the Lease Term,the SCFA agrees to: (a) Pay all real estate taxes and assessments which may be levied against any part of the Arena Facilities; 5 (b) Pay when due all fees, assessments, charges, and taxes of any kind that may now or hereafter be imposed upon the Arena Facilities or their use; and (c) Keep the Arena Facilities free and clear of all levies, liens,and encumbrances prompted by use or maintenance of the Arena Facilities and to indemnify the City for any cost of expense incurred by the City, including reasonable attorney fees, resulting from the City's response to the imposition of any such levies, liens, or encumbrances. Section 11. Utilities. During the Lease Term,the SCFA agrees to contract for and pay for all utilities utilized in its use and operation of the Arena Facilities. Section 12. Events of Default by City or SCFA. In addition to the events of default described in Section 5 of this Lease Agreement relating to the SCFA's obligation of ongoing maintenance and repair of the Arena Facilities, if either the City or the SCFA takes the position that the other party is deficient in its performance of any provision of this Lease Agreement, either the City or the SCFA (the "Notifying Party") may provide written notice to the other(the"Receiving Party")describing the deficiency and requesting the opportunity for representatives of the City and the SCFA to promptly meet and conduct good faith discussions toward resolution of any disagreement regarding the deficiency,what is required to cure the deficiency, and a schedule for completion of the necessary cure. If the City and the SCFA are unable to agree on any of those points of discussion or if the Receiving Party does not complete the cure according to the agreed upon schedule,the Notifying Party may provide written notice to the Receiving party that the deficiency must be cured within 30 days. If, however, the deficiency cannot reasonably be cured within such 30-day period,then the period of time afforded the Receiving Party may be extended in writing, at the discretion of the Notifying Party, for one or more specified period of days, so long as the Receiving Party is diligently and continuously attempting to cure the deficiency. Failure by the Receiving Party to cure the deficiency by the end of the applicable cure period shall constitute an event of default under this Lease Agreement. Section 13. Remedies Upon Default. In the event of default as provided under Section 5 or Section 12,the non-defaulting party shall have,in its sole discretion,and in addition to any and all other cumulative rights and remedies provided in this Lease Agreement or otherwise available at law or in equity, the right to: (a) terminate the Lease while providing 30 days for SCFA's removal of the Personal Property and its dirt; and/or (b) pursue an injunction or other legal proceeding to enforce and compel the performance of the duties and obligations of the defaulting party set forth in this Lease Agreement. Section 14. General Provisions. 14.1. Surviving Terms. Any terms of this Lease Agreement relating to the enforcement of its terms shall survive beyond the date of expiration or termination of the Lease to the extent necessary to carry out the original intent of the parties. 6 14.2. Not a Partnership. It is agreed that the relationship between the City and SCFA established by this Lease Agreement is one of lease and not of partnership, and that the City shall not become responsible for any debts contracted by the SCFA. 14.3. No Assignment of Lease. Due to the unique circumstances of the parties and the subject of the Lease, this Lease Agreement shall not be assignable, in whole or in part, by either the City or the SCFA. 14.4. Merger. The parties intend these terms to be a complete, conclusive and final expression of all the conditions of their agreement. No other promises, statements, warranties, agreements or understandings, oral or written, made before or at the signing thereof, shall be binding. 14.5. Amendments. Any amendment to this Lease Agreement, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. 14.6. Paragraph Headings. The title to the paragraphs of this Lease Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of this Agreement. 14.7. Counterparts. This Lease Agreement may be executed in any number of counterparts, each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 14.8. Waiver. No waiver by either party of any default hereunder shall operate as a waiver of any other default. 14.9. Severability. If a court of competent jurisdiction determines any provision of this Lease Agreement to be contrary to law, the remaining provisions of this Lease Agreement shall remain in full force and effect. 14.10. Notices. Any notice to either party shall be sufficient if hand-delivered or mailed by registered United States mail,postage prepaid, at the following addresses: City of Salina, Kansas do City Clerk P.O. Box 736 Salina, Kansas 67402-0736 Saline County Fair Association do Kenneth W. Wasserman Norton, Wasserman, Jones& Kelly, L.L.C. 213 S. Santa Fe Salina, Kansas 67402-0124 7 14.11. Governing Law. This Lease Agreement shall be governed by the laws of the State of Kansas. 14.12. Interpretation. This Lease Agreement shall be interpreted according to its fair meaning, and not in favor of or against either party. 14.13. Binding Effect. This Lease Agreement shall be binding upon and inure to the benefit of the parties. IN WITNESS WHEREOF,the authorized representatives of the parties have executed this Lease Agreement on the day and year stated. CITY OF SALINA,KANSAS By: Mate101/4470.04-\- -- Melissa Rose Hodges, yor Date: 1'/14 01,7-1 , 2021 ATTEST: By: !)eputy Cheryl -ermis, City Clerk SALINE COUNTY FAIR ASSOCIATION,INC. By: Amber Fouard, _ ident Date: 2/3 _, 2021 ATTEST: / By: I. A Linda Lilly, Secretary • 8