Amendment and Restatement of Maintenance and Operating Agreement AMENDMENT AND COMPLETE RESTATEMENT
of the
COMMUNITY THEATRE MAINTENANCE AND OPERATING AGREEMENT
This Amendment and Complete Restatement of the Community Theatre Maintenance
and Operating Agreement (this "Restatement") is made this 18th day of December, 2023 by
and between the City of Salina, Kansas, a Kansas municipal corporation, (the "CITY")
and the Salina Community Theatre Association, a Kansas nonprofit corporation, hereinafter
referred to as the SCTA.
Recitals
A. The SCTA is a private, nonprofit corporation organized under the laws of the
State of Kansas for the propose of establishing a community theatre and promoting a better
understanding of theatre; and
B. The SCTA operates Theatre Salina in a theatre facility(the "Theatre") located at
303 East Iron Avenue that serves as a major community resource for theatre and is open to all
members of the public; and
C. The SCTA through its staff offers to the community a comprehensive educational
and performance program; and
D. The SCTA is the only provider in this region of theatre educational and
performance opportunities for students from pre-school through adults; and
E. The SCTA has been a foundation in the cultural, educational, and volunteer
landscapes in Salina for over 60 years; and
F. In December 2007 the CITY transferred to SCTA ownership of the Theatre, the
real estate upon which the Theatre is located, and the immediately surrounding real estate
(collectively, the "Theatre Real Estate") legally described on the attached and incorporated
Exhibit A.
G. The current working relationship between the CITY and SCTA relating to
maintenance and operation of the Theater is addressed in a Community Theatre Maintenance and
Operating Agreement between the City and SCTA dated December 17, 2007 (the "2007
Maintenance and Operating Agreement"); which should be amended and completely restated
regarding the maintenance and operation of the Theatre.
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As an amendment and complete restatement of the 2007 Maintenance and
Operating Agreement,the CITY and the SCTA agree as follows:
Section 1. SCTA Duties.
The SCTA shall be responsible for the following items:
A. Theatre ownership and related responsibilities. Title to the Theatre Real Estate
and all related responsibilities not delegated to the CITY under this
Restatement shall remain in the name of Salina Community Theatre
Association, and its successor organization, if any, throughout the term of
this Restatement.
B. Escrow account for HVAC capital costs and major maintenance expenses. The
SCTA shall annually contribute funds to an FDIC insured, interest bearing
escrow account designated for payment of(a) all capital expenditures required
for HVAC replacement or upgrades to the Theatre's HVAC system ("HVAC
Capital Costs") and (b) all Theatre maintenance/repair items in excess of
$15,000 ("Major Maintenance/Repair Expenses"). The SCTA shall establish
the escrow account on or before January 31, 2024, with a City-authorized
depository bank mutually identified by the City and the SCTA with the SCTA's
initial annual contribution for 2024 of$3,000 (the "Escrow Account"). Each
year thereafter,the SCTA's annual contribution to the Escrow Account shall be
payable no later than February 15th and shall increase by 10% each year until
it reaches $10,000 annually. The funds held in the Escrow Account (the
"Escrow Account Funds") shall be managed and utilized in the following
manner:
1. The Escrow Account Funds shall be exclusively allocated for
payment of HVAC Capital Costs and Major Maintenance/Repair
Expenses. The CITY will pay the full cost of any
maintenance/repair expenses of$15,000 or less.
2. If the cost of either an HVAC Capital Expenditure or a Major
Maintenance/Repair Expense surpasses the available Escrow
Account Funds when incurred, the cost in excess of the available
Escrow Account Funds will be paid by the CITY.
3. The usage of Escrow Account Funds shall be subject to an approval
process,as mutually agreed upon by the SCTA and the CITY.Both
parties shall collaborate to establish guidelines and criteria for the
approval of expenditures from the Escrow Account.
4. The Escrow Account shall be maintained in an account or accounts
with one or more City-authorized depository bank(s) as mutually
determined from time to time by the CITY and the SCTA, as
circumstances warrant.
C. Insurance. The SCTA shall maintain insurance coverage on all personal
property located in the Theatre; shall maintain general liability coverage for
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the operation of the Theatre in an amount deemed sufficient by both the
SCTA and the CITY; and, during periods of construction of any additions
or improvements to the Theatre, shall maintain an appropriate amount of
builder's risk coverage.
Section 2. CITY Duties.
The CITY shall provide the following services:
A. Utilities and Potential Reopener. The CITY shall pay for water, sanitary sewer,
electrical, and natural gas services for the Theatre("Theatre Utilities"), subject
to the following conditions and limitations:
1. Solar Array. The CITY and the SCTA acknowledge and agree that the
SCTA has stated its intention to install, maintain, and operate a solar array
on the Theatre for its use in supplementing electric power to the Theatre. If
the SCTA installs and operates a solar array on the Theatre, the following
provisions shall apply:
a. The SCTA shall bear full responsibility for the installation,
maintenance, and operation of the solar array throughout its usable
life.
b. The CITY shall not be responsible for,the SCTA releases the CITY
from, and the SCTA defends, indemnifies, and holds the CITY
harmless from: any costs, damages, or liabilities arising from the
installation,maintenance,repair, or replacement of the solar array.
c. Upon the solar array reaching the end of its usable life or requiring
replacement, the SCTA shall be solely responsible for the
decommissioning, removal, and any necessary disposal of the
system in accordance with applicable regulations and industry best
practices.
2. Limitation on CITY Obligation for Electrical Utility Component. The
City's obligation for payment of the electrical services component of the
Theatre Utilities shall be limited for each calendar year this Restatement
remains in effect to no more than the amount resulting from application
of the per kilowatt hour usage in effect for each month of the subject
calendar year applied to the average monthly kilowatt hour use of
electricity for the Theatre during the 24-month period immediately
preceding the earlier to occur of either (a) completion of installation of
a solar array pursuant to Section 2.A.1. above or(b)the date of issuance
of the certificate of occupancy for the currently anticipated building
addition to the Theatre, plus five percent (the "Electrical Utility
Limitation"). If neither(a)nor(b)has occurred by the end of a calendar
year during which this Restatement is in effect, the Electrical Utility
Limitation shall not be in effect for that calendar year. To the extent the
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charges for the electrical services component of the Theatre Utilities
exceed the Electrical Utility Limitation for any calendar year,the CITY
shall provide SCTA written notice of that amount(along with supporting
billing statements) and SCTA shall reimburse the CITY in that amount
within 30 days following receipt of the written notice.
B. Janitorial Services. The CITY shall provide routine janitorial services,
including routine sweeping and cleaning of the publicly occupied gathering
spaces and publicly accessible restrooms, replacing light bulbs and lighting
repair not associated with theatre productions, and removing trash associated
with the publicly occupied areas. Routine janitorial service shall not include:
1 . Cleaning of backstage areas or scene shop;
2. Cleaning of the auditorium seating area;
3. Removing trash from SCT occupied areas or operations;
4. Cleaning after classes, demonstrations or rehearsals; or
5. Furnishing paper or cleaning products for classes or
demonstrations, either in the class or for cleanup.
Maintenance/Repair Expenses not covered by Escrow Account. Subject to
Section 1.B. above regarding utilization of the Escrow Account for HVAC
Capital Costs and Major Maintenance/Repair Expenses, the CITY shall
otherwise maintain the Theatre, including the necessary maintenance, repair,
or replacement of plumbing and plumbing fixtures, electrical systems not
associated with theatre productions, the marquee, and the roof; and
maintenance and repair(but not replacement or upgrades) of HVAC systems.
The maintenance responsibilities of the CITY shall not include any proposed
productions, storage or protection of personal property owned and under
control of the SCTA, SCTA's educational programs,or other SCTA programs.
C. The CITY will maintain the landscaping around the THEATRE.
D. The CITY will provide snow removal from the sidewalks and parking areas
at the THEATRE.
E. The CITY will provide commercial property insurance rated at replacement
value on the existing Theatre and any future building additions or
improvements as owned by the SCTA.
Section 3. Effective Date.
This Restatement is dependent upon the successful transfer of the land needed for the
Theatre's capital expansion, and shall become effective January 1, 2024 (the "Effective
Date").
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Section 4. Term and termination.
This Restatement shall remain in effect until December 31, 2057. If within this
period, the SCTA sells or otherwise disposes of the Theatre Real Estate, in whole or
in part, this Restatement shall be terminated.
Section 5. Required reports.
The SCTA shall submit annually to the City Manager or others designated by the
City Manager the following items:
A. Before October 1st of each year (SCTA's fiscal year ends August 31st),
SCTA's final financials for the fiscal year ending the prior August 31st and the
annual budget and program of services for the current fiscal year
commencing the prior September 1st; and
B. The SCTA's annual report and audit within 30 days of completion by the
independent auditors.
In addition, if and when the SCTA has any plans that significantly relate to changes
or additions in the Theatre, the City Manager shall be informed of such changes as
they relate to this Restatement before such changes or additions are implemented.
Section 6. Non-assignable.
In recognition of the public interest served by the unique working relationship between
the CITY and the SCTA, neither the rights nor obligations of the parties to this
Restatement shall be assignable,either in whole or in part, by either party.
Section 7. Non-appropriation.
The CITY is subject to Kansas budget and cash basis laws, and operates on a
calendar fiscal year. Because this Restatement involves financial obligations
spanning multiple fiscal years for the CITY, it is subject to annual appropriation by
the CITY's governing body for future fiscal years. If the CITY's governing body
has under consideration not appropriating the funds necessary to fulfill the CITY's
financial obligations pursuant to this Restatement during any future annual budget
preparation process for the purpose of establishing the City's budget for the ensuing
calendar fiscal year, the CITY shall so notify the SCTA's executive director in
writing on or before April 1 of the year in which that annual budget preparation
process occurs. If the CITY's governing body does not appropriate the funds
necessary to fulfill the City's financial obligations pursuant to this Restatement,the
CITY shall so notify the SCTA's executive director in writing and this Restatement
shall be null and void for purposes of the fiscal year(s) affected by the decision of
the governing body not to appropriate.
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Section 8. Binding effect.
This Restatement shall be binding upon and shall inure to the benefit of the
parties hereto and their successors.
SALINA COMMUNITY THEATRE
ASSOCIATION
B
y: / /. Le A
Amanda K. Graber, 're.ident
CITY OF SALINA, KANSAS
By: Air
richael L. Hoppock, Mai"
ATTEST:
By: ' . 40 16/111 t
Nikki Goding, City Clerk
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