ECRA Batting Cages
LEASE AGREEMENT
This Lease Agreement, ("Agreement") dated February~ 1996, is entered into between
the CITY OF SALINA, KANSAS, a municipal corporation ("City"), and Jim Shirack, a resident
of Saline County, Kansas ("Lessee").
Recitals
A. The City's public park system includes East Crawford Recreation Area (the
"Park"), which consists predominately of baseball and softball facilities.
B. As an added service to the general public, the City wishes to provide for public
access to mechanized batting practice equipment ("batting cages") in immediate proximity to
those baseball and softball facilities.
C. Lessee owns the specialized equipment necessary to properly operate the batting
cages.
D. The City believes that the public interest is best served by leasing to Lessee only
that square footage in Bill Burke Park necessary to safely operate the batting cages.
The parties agree as follows:
1. Description. City hereby leases to Lessee, subject to the covenants and conditions
contained in this Agreement, the square footage upon which the batting cages are currently
located at Bill Burke Park (the "Batting Cage Site").
2. Rent.
(a) Lessee agrees to pay to City, as rent for the Batting Cage Site, the sum of
Two Hundred and no/100 Dollars ($200) per month, or eight percent (8%) of the
monthly gross revenue, whichever is greater, during the months of April through
September, inclusive. During the months of October through March, the rent shall be
limited to eight percent (8%) of the monthly gross revenue.
(b) Monthly rent payments shall be due on the 5th day of the month following
the month for which the rent is payable. All rent payments shall be accompanied by a
report of hours of operation and gross revenues for the prior month.
(c) Lessee agrees that complete financial records regarding this operation on
the Batting Cage Site shall be maintained and segregated from any other business or
personal financial records of the Lessee and that the City Manager or his designated
representative may examine the financial records for the operation upon request.
3. Lease Term and Renewal Option. The initial term of this lease shall be five (5)
years commencing March 1, 1996, and ending midnight February 28, 2001. The Lessee shall
have the right to elect for an additional five (5) year term by giving written notice to the City of
such election no less than sixty (60) days prior to the end of the initial five (5) year term. It is
agreed that the monthly rent for the additional term shall be the sum of Two Hundred Twenty
and no/lOO Dollars ($220) per month, or nine percent (9%) of the monthly gross revenue,
whichever is greater, during the months of April through September, inclusive. During the
months of October through March, the monthly rent shall be limited to nine percent (9%) of the
monthly gross revenue.
4. Use of the Batting Cage Site. The Batting Cage Site shall be used as the site for a
mechanical pitching machine operation. The Batting Cage Site shall not be used or occupied for
any other purpose, or in a manner that constitutes a nuisance. The mechanical pitching machines
and accessories shall be furnished by Lessee at his sole expense, subject to approval of the
equipment by the Director of the Parks and Recreation Department.
5. Maintenance.
(a) City's Responsibilities. City shall maintain and repair any access roads to
the Batting Cage Site and adjacent parking areas.
(b) Lessee's Responsibilities. Lessee shall maintain the Batting Cage Site in
accordance with City's maintenance standards attached and incorporated by reference as
Exhibit "A".
6. Hours of Operation and Supervision. The hours of operation for the Batting Cage
Site shall be determined jointly by the City and the Lessee. A qualified attendant shall be on
duty at all times of operation.
7. Licenses. Lessee agrees to strictly comply with federal, state, and local laws and
regulations, and to obtain, at its expense, all necessary licenses and certificates for the operation
of the Batting Cage Site.
8. Utilities. Lessee agrees to pay for all utility expenses incurred in the operation of
the Batting Cage Site.
9. Cost of Operation. Lessee shall be solely responsible for all of the costs of
operating the Batting Cage Site not specifically excluded herein.
10. Advertising. The Batting Cage Site must be identified as publicly owned in all
signs, literature, and advertising, and the concessionaire identified as such.
11. Nondiscrimination. City must retain control over charges to the public to ensure
nondiscrimination. While the lessee is entitled to a reasonable return, the general public cannot
be denied use of the facility because of excess of fees or an inequitable fee structure.
12. Alterations. Lessee shall not alter, improve, or change the Batting Cage Site
without the prior written consent of City. In the event the Lessee chooses to light the Batting
Cage Site, any such lighting shall be according to City's specifications, and shall be placed in a
manner determined by City. Lessee, unless otherwise agreed in writing, shall pay all costs
associated with any alterations, improvements, or changes.
-2-
13. Ownership of Improvements. The reinforced concrete pad and galvanized chain
link fence and any other improvements made to the Batting Cage Site shall be the property of the
Lessee during the term of this Agreement. Upon termination of this Agreement (whether by
expiration of the term or by operation of the default provision), the reinforced concrete pad, the
galvanized chain link fence, and any other improvements shall become the property of City.
14. Ownership of Pitching Machines.
Agreement to the contrary, the pitching machine
remain the property of the Lessee.
Notwithstanding any provisions in this
equipment purchased by the Lessee shall
15. Assignments. Lessee shall not assign this Agreement, without the prior written
consent of City, which consent shall not be unreasonably withheld.
16. Relationship of the Parties. The relationship of the parties is solely that of lessor
and lessee, and nothing herein contained shall create any other relationship or liability.
Specifically, the Lessee is not the agent of City for purposes of any contracts for improvement of
the Batting Cage Site.
17. Extended Coverage Insurance. Lessee shall maintain extended insurance
coverage on the property owned by Lessee located on the Batting Cage Site in such amounts as
Lessee deems appropriate to fully insure himself.
18. Untenantability. If the Batting Cage Site is made untenantable for any reason
whatsoever, this Agreement and all obligations hereunder shall be null and void, and all future
performances by either party, including the payment of rent, shall terminate.
19. Public Liability Insurance. Lessee agrees to carry public liability insurance
coverage in an amount equal to the maximum exposure to City under the Kansas Tort Claims
Act over the term of the Agreement (currently $500,000). The City shall be named as an
additional insured on such policy. The policy shall also contain a provision that City shall be
given at least thirty (30) days written notice by the insurance company before the policy is
substantially changed or canceled. Lessee shall maintain on file with City a current certificate of
such insurance.
20. Indemnification. If either party fails to pay any obligations which that party is
required to pay according to the terms and conditions of this Agreement and the other party is
required to pay the same, the paying party will be entitled to reimbursement from the defaulting
party. In the event any claim is made against either party for damages arising out of the
relationship, the party responsible for such claim shall indemnify and hold harmless the other
party from any loss on account thereof, including reasonable attorney's fees and any other costs
of defense against such claim.
21. Property Tax. If the Saline County Appraiser determines that continued
operation of the batting cages pursuant to this Agreement will result in the loss of the tax exempt
status of part or all of the Park, City may direct Lessee to immediately cease operations and
terminate this Agreement by giving written notice to Lessee, along with a copy of the Saline
County Appraiser's determination upon which the termination is based.
-3-
22. Time is of the Essence. It is mutually agreed to by the parties that time is of the
essence of this Agreement, and all the terms and conditions of this Agreement, including the
payment of rent, must be performed and paid as specified in this Agreement.
23. Default. In the event either party fails to perform any of the promises and
covenants under this lease, the non-defaulting party shall give notice of such default in writing to
the other party specifying the nature of the default. In the event such default remains uncured
for ten (10) days after deliver of the notice specifying the nature of the default, the Agreement
shall terminate at the sole option of the non-defaulting party. In the event of termination based
upon default of the Lessee, the Lessee shall immediately discontinue operations and shall be
required to remove all of the pitching machine equipment from the Batting Cage Site within ten
(10) days from the date of the termination.
24. Written Notices. All written notices, as provided herein, shall be delivered by
certified mail, return receipt requested, mailed as follows:
City:
City of Salina
Office of the City Clerk
City-County Building
300 West Ash
Salina, KS 67401
Lessee:
Jim Shirack
3000 South Drew Avenue
Salina, KS 67401
25. Applicability. This Agreement shall be binding upon the parties hereto, and their
heirs, beneficiaries, personal representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
CITY OF SALINA, KANSAS
BY~C0~
, Jo Divine, Mayor
ATTEST:
~.~ ,Q.~,
udy ~ Lon ity Clerk
-4-