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ECRA Use Agreement AGREEMENT THIS AGREEMENT, Made and entered into this 2!)'1o day of Jl\~~ ' 1991, by and between the Parks & Recreation Depart- ment of the City of Salina, Kansas, hereinafter referred to as the "City", and Salina Baseball Enterprises, Inc., a Kansas not for profit corporation with its principal place of business at Salina, Kansas, hereinafter referred to as "Enterprises". WITNESSETH: WHEREAS, the City has to a major extent constructed a premier baseball diamond located at the East Crawford Recreation Area, Salina, Kansas (hereinafter referred to as the "Premier Baseball Facility"), and with the raising of additional funds from private donors and the Salina community in general, and the utilization of such additional funds to complete and finish said Premier Baseball Facility, the City will be able to upgrade its Premier Baseball Facility significantly and thereby benefit the community of Salina, Kansas and surrounding areas; and WHEREAS, Enterprises and other private parties believe that they can assist the City in completing and upgrading the Premier Baseball Facility by using their contacts, skills, time and efforts to attempt to raise up to $160,000.00 from private contributions, donations and the like for the purpose of complet- ing and upgrading the City's Premier Baseball Facility; and WHEREAS, Enterprises is a supporter of the Salina American Legion Baseball Program and is willing to put forth its time and efforts to raise such additional funds from the private sector in the community of Salina, Kansas, and surrounding areas, if the City is willing to enter into this Agreement upon the terms and condi tions set forth herein, it being the intention of Enterprises to so assist the City with respect to its Premier Baseball Facility only if the City is willing to make the commit- ments, agreements and undertakings set forth herein, and it being the belief of Enterprises that it will be successful in raising such additional funds only if the City is willing to undertake the agreements and covenants set forth herein for the benefit of Enterprises, the Salina American Legion Baseball Program, and those individuals, organizations, businesses and the like which are willing to make contributions and gifts for the purposes set forth herein: NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows: 1. FUNDRAISING: Enterprises shall use its best efforts to raise through contributions, donations and gifts, up to $160,000.00 for the benefit of the City, to be used to complete, improve and upgrade the City's Premier Baseball Facility. It is understood that there is no firm commitment or obligation on the part of Enterprises to raise said sum other than to endeavor to use its best efforts to raise funds to be used as hereinafter set forth. 2. SEGREGATION OF FUNDS RAISED: Upon receipt of contribu- tions, gifts and the like and loan proceeds from borrowing against pledges (which borrowing and use of pledges as collateral is authorized and approved) Enterprises shall from time to time deliver or remit such receipts to the City. The City shall main- tain a separate account in which all funds raised hereunder and otherwise for purposes of completing, improving and upgrading the Premier Baseball Facility for the benefit of the City shall be deposi ted, which funds shall at all times be deemed segregated from other funds and properties of the City and shall be deemed to be held in trust for the benefit of Enterprises and the persons and entities making such contributions, gifts and pledges for the purposes specified herein. Funds held in said separate segregated account for the benefit of the Premier Baseball Facili ty shall be disbursed by the City for use in completing, improving and upgrading the Premier Baseball Facility in such time and manner as may be mutually agreed upon by the parties hereto from time to time, or to the extent not so used, returned pro rata to the persons and entities making such contributions and gifts. 3. USE OF FUNDS RAISED BY ENTERPRISES: All funds raised by Enterprises and by others which are delivered to the City for use in completing the Premier Baseball Facility shall be used to complete, improve and upgrade the Premier Baseball Facility in accordance with the specifications, a copy of which is attached hereto as Exhibit "A" and by reference made a part hereof. It is understood and agreed that if Enterprises and others are able to raise sufficient funds, the Premier Baseball Facility shall be completed substantially in compliance with the specifications, a copy of which is attached hereto as Exhibit "A". If Enterprises and others are not able to raise the funds necessary to complete, improve and upgrade the Premier Baseball Facility in accordance wi th the Exhibit" A" specifications, then the Premier Baseball Facility shall be completed to the extent that may be mutually agreed upon from time to time by the parties hereto, but in making such decisions, the parties agree that the funds raised by Enterprises and others shall first be used to complete separate parts of the Premier Baseball Facility in accordance with their respective specifications as set forth on Exhibit "A", with a - 2 - view to ultimately raising other funds from public and/or private sources to complete the other parts of the Premier Baseball Facility in accordance with their respective specifications set forth on Exhibit "A". It is the further intention and agreement of the parties hereto that if Enterprises and others are able to raise only a portion of the funds necessary to complete, improve and upgrade the Premier Baseball Facility, such funds will not be used to complete, improve and upgrade the Premier Baseball Facili ty in its entirety in a cheaper, more economical, less efficient and less quality manner unless agreed to in writing by both of the parties hereto. If for any reason not all of the funds raised for the purposes described herein are used to complete the Premier Baseball Facility, then the City shall return the funds not used to the donors making the contributions and gifts pro rata and in proportion to their respective contributions. Enterprises and City shall cooperate in maintaining accurate and detailed records of contributions. 4. USE OF PREMIER BASEBALL FACILITY: The Premier Baseball Facility shall be used exclusively for baseball, which shall be defined as the Salina American Legion Baseball Program, the Salina Babe Ruth Baseball Program, their respective tournaments, high school baseball programs for high schools located in Salina, Kansas, college baseball programs for colleges having their principal facilities in Salina, Kansas, and special exhibitions. 5. OWNERSHIP AND CONTROL: The Premier Baseball Facility and all related equipment and furnishings shall be the property of and owned by the City of Salina, Kansas. All financial and material donations made for purposes of completing, improving and upgrading the Premier Baseball Facility shall be deemed to be the property of and owned by the City of Salina, Kansas. The Premier Baseball Facility and related equipment and furnishings shall at all times be under the control of the City Manager of Salina, Kansas, or his designee, and except as otherwise expressly set forth herein, the City of Salina shall at all times have the right to control and designate use of the Premier Baseball Facility. 6. UTILITIES, INSURANCE AND MAINTENANCE: City agrees that it shall at all times during the term of this Agreement and any renewal or extension hereof: (a) Provide all necessary insurance coverages with respect to the ownership and use of the Premier Baseball Facility and other baseball facilities described herein, - 3 - including but not limited to public liability insurance and fire and extended coverage insurance. (b) Furnish all utilities necessary for maintaining, operating, using and otherwise caring Premier Baseball Facility. owning, for the (c) Maintain and keep all buildings, structures, improvements, grounds, equipment and furnishings which consti tute a part of the Premier Baseball Facility or any related property in a state of cleanliness and in a state of good repair and condition as to promote a quality facility for the City of Salina, Kansas, its inhabitants and its baseball programs. (d) Professionally care for, prepare and maintain the Premier Baseball Facility prior to each double header or two-game session, which preparation shall include infield work consisting of marking batter's boxes, foul lines, dirt work and watering, when necessary. 7. SCHEDULING: With respect to scheduling the Premier Baseball Facility and other baseball facilities of City located at the East Crawford Recreation Area, Salina, Kansas, City hereby agrees as follows: (a) Insofar as regular season games are concerned, the Salina American Legion Baseball Program shall have first priority on scheduling of the Premier Baseball Facility for up to four days per calendar week. The Salina American Leg ion Baseball Program shall provide its regular season game dates and times to the City by April 15th of each year, and shall be given total priority for scheduling regular season game dates and times for four days per calendar week during the period from the first day of the Memorial Day weekend through August 1 st. Such requests of the Salina American Legion Baseball Program shall be honored. In addition, the Salina American Legion Baseball Program shall be allowed to use a supporting baseball facility located at the East Crawford Recreation Area, Salina, Kansas, to the extent necessary to insure a diamond for games and/or practices up to ten times each calendar week. Any and all other requests from other baseball organizations for use of the Premier Baseball Facility shall be scheduled and authorized solely by the City, but shall not conflict with the priority scheduling requested by the Salina American Legion Baseball Program on or before April 15th of the applicable year. - 4 - (b) With respect to tournament scheduling, the Salina American Legion Baseball Program shall have first priority on scheduling district, regional, state, national and other tournaments with dates to be provided to the City at the earliest possible date but no later than April 15th of the applicable year; provided, however, in the case of district tournaments, the Salina American Legion Baseball Program shall have the right to schedule the Premier Baseball Facility for the district tournament on or before April 15th of the applicable year even though at said time the site of the district tournament is not known and, if the American Legion district tournament is not awarded to Salina, then the Salina American Legion Baseball Program shall notify the City of that fact as soon as it becomes known to the Salina American Legion Baseball Program, so that the City can allow other baseball events to be scheduled at the Premier Baseball Facility during that time. All other tournament requests shall be submitted to the City, and it is the intention of City to exert every effort to accommodate district, state, regional and national tournaments of other baseball organizations. (c) The Salina American Legion Baseball Program shall be entitled to use the Premier Baseball Facility for prac- tice from time to time but only if it obtains the consent of the City and only if such use does not interfere with maintenance and game preparation activities and scheduled baseball events. (d) It is recognized by Enterprises that on an infrequent basis there may be special events which the City desires to schedule during baseball season at or in the area of the East Crawford Recreation Area which, because of access, parking, traffic and other reasons, will make the playing of a baseball game at the Premier Baseball Facility impractical or impossible on certain dates or for portions of certain days. The City shall prior to January 1st of the applicable baseball year advise Enterprises of any such dates and the times with respect to which playing baseball would be impractical or impossible on account of such special events which the City desires to schedule at the East Crawford Recreation Area and Enterprises and the Salina American Legion Baseball Program shall exert every effort possible to schedule its games and practices at the East Crawford Recreation Area so as to not conflict with such special events desired by the City to be held at the East Crawford Recreation Area. The City agrees that notwi th- standing the other provisions of this sub-paragraph (d), the scheduling of a special event shall not adversely affect the - 5 - scheduling priority rights of the Salina American Legion Baseball Program as set forth in sub-paragraphs (a) and (b) of this Paragraph 7 and the City further agrees that it will make every effort possible to schedule such special events at places or areas which do not interfere with the utiliza- tion of the Premier Baseball Facility for the playing of baseball games and necessary parking and access. (e) For purposes of this Agreement, the "Salina American Legion Baseball Program" shall mean the baseball teams sponsored by the Salina, Kansas, American Legion which play American Legion baseball, but if for any reason at any time during the term of this Agreement or any renewal or extension hereof, the Salina American Legion no longer sponsors or operates such a baseball program and another organization commences to operate and operates a similar baseball program for youth of comparable ages in place of those formerly sponsored by the Salina American Legion, then, in the absolute discretion of and at the option of Enterprises, such other organization and its baseball program may be substituted hereunder for the Salina American Legion Baseball Program and thereupon be entitled to the rights and privileges afforded the Salina American Legion Baseball Program hereunder. 8. GATE OR TICKET RECEIPTS: The Salina American Legion Baseball Program may charge a gate or admittance fee for admit- tance to its garnes, so long as such fee is reasonable and compa- rable to other fees charged for attending other similar events in the State of Kansas; otherwise, the right to charge such fee shall have the prior approval of the Advisory Board of the Salina Parks & Recreation Department. All such revenues and receipts collected by a sponsoring organization shall be the property of such sponsoring organization and it shall be the sole responsi- bili ty of the sponsoring baseball organization to provide all labor and materials involved in the collection of gate receipts. The City of Salina shall have no responsibility, liability or obligation whatsoever relating to or arising out of the charging and collecting of gate or admittance fees. 9. CONCESSIONS: City shall be solely responsible for the sale of all concessions with respect to activities at the Premier Baseball Facility and other baseball facilities located at the East Crawford Recreation Area, Salina, Kansas. City may allow sponsoring baseball organizations to operate temporary conces- sions for special events to sell items not in direct competition with the City's concession operations. Each special concession request must be approved by the Advisory Board of the Salina Parks & Recreation Department. - 6 - 10. FIELD PREPARATION FEES: The City may charge a field preparation fee to any organization requesting game field prepa- ration and the fee will be applicable each time preparation of a game field is requested. Any such fees charged the Salina American Legion Baseball Program shall not exceed the fees charged others for similar services by the City. 11. PRACTICE FIELDS: As a general rule, the Premier Baseball Facility shall be used primarily as a field for playing of regularly scheduled, makeup and tournament games and practices on the field at the Premier Baseball Facility will be limited; provided, however, it is agreed that the Salina American Legion Baseball Program as defined herein may use the Premier Baseball Facili ty field for practice under the circumstances and to the extent described in sub-paragraph (c) of Paragraph 7 hereof. All requests for practice fields and practicing schedules and related matters with respect to all baseball fields located at the East Crawford Recreation Area, Salina, Kansas, must be coordinated through the City's office. 12. TERM: The initial term of this Agreement shall be that period of~me commencing on the date on which at least $40,000.00 has been raised by Enterprises and others for the purposes set forth herein and ending on December 31, 1995. If at least $40,000.00 is not raised on or before June 30, 1992 by Enterprises and others for the purposes set forth herein, then this Agreement shall be null and void, but the City shall have the obligation to return to the donors the unused portion of the contributions described herein to the extent required under the provisions of Paragraphs 2 and 3 hereof. In addition, the term of this Agreement shall automatically be renewed and extended for additional five-year terms (each herein referred to as an "Additional Term"), upon the following terms and conditions: (a) If the total amount of funds raised by Enterprises and others for the purposes specified herein on or before June 30, 1992 exceeds $160,000.00, then the term hereof shall automatically be renewed and extended for three additional five-year terms, the first to commence on January 1, 1996, the second to commence on January 1, 2001, and the third to commence on January 1, 2006. (b) If the total amount of funds raised by Enterprises and others for the purposes specified herein on or before June 30, 1992 exceeds $120,000.00 but is not greater than $160,000.00, then the term hereof shall automatically be renewed and extended for two additional five-year terms, the first to commence on January 1, 1996, and the second to commence on January 1, 2001. - 7 - (c) If the total amount of funds raised by Enterprises and others for the purposes specified herein on or before June 30, 1992 exceeds $80,000.00 but is not greater than $120,000.00, then the term hereof shall automatically be renewed and extended for one additional five-year term, to commence on January 1, 1996. For purposes of this Paragraph 12, funds shall be deemed "raised" when delivered to the City for deposit to the account described in Paragraph 2 hereof in the case of cash, checks and other similar instruments. In the case of a pledge by a contributor to make future payments to the City for the purposes set forth herein, the applicable funds shall be deemed "raised" if and to the extent the applicable pledgor delivers cash, check or other similar instrument to the City for deposit to the account described in Paragraph 2 hereof or if and to the extent that monies are deposited in said account which are the proceeds of a loan secured by the applicable pledge. Notwithstanding the foregoing, Enterprises shall have the right to terminate this Agreement with respect to any such Additional Term and subsequent Additional Terms by giving the City written notice of termination at least ninety (90) days prior to the first day of such Additional Term to the effect that this Agreement shall not be renewed and extended for such Additional Term or any subsequent Additional Terms. In the case of any such automatic renewal or extension, all of the terms and provisions set forth herein shall be applicable during such Additional Term except to the extent as may otherwise be mutually agreed upon in writing by the parties hereto. 13. GOVERNING LAW: This Agreement shall be governed and construed in accordance with the laws of the State of Kansas. 14. BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. IN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed on their behalf on the day and year first above written. CITY: PARKS & RECREATION DEPARTMENT OF THE CITY SALINA, KANSAS BY: - 8 - Attest: City Clerk ENTERPRISES: SALINA BASEBALL ENTERPRISES, INC. BY, ~;~hi~~ It' J~~cl D n Rectenwald, Secretary - 9 - SPECIFICATIONS FOR PREMIER BASEBALL FACILITY Salina, Kansas Concrete: 10 rOI'lS mi tered $ 85,000 5,000 5,000 5.000 $100,000 Concrete erected w/o footings w/press box understructure Footings Guard ra il s Press box $ 6,657 855 1a.950 $122,462 951' of bleacher plank (aluminum) for wings - 634 seats Material seat boards, braces, etc., @ $7/foot Installation @ .90/foot 130 stadium seats installed @ $115/seat Total seating 764 Press box size - 20'x8' Platform - 24'x8' Concession/Restroom Area - 2 20'x20' brick buildings connected by continuous roof wh i ch provi des central entrance I-Jay. One building to house all restroom facilities while other houses ticket windOI'l and concession area with storage. The con cess ion/restroom fac i 1 ity to be located directly behind center section of grandstand. Approximate cost: $40,000-$45,000 Exhibit "A"