ECRA Batting CagesLEASE AGREEMENT
This Lease Agreement, ("Agreement") dated April ,o, 1997, is entered into between
the CITY OF SALINA, KANSAS, a municipal corporation ("City"), and RUSSELL WEAVER,
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 East Crawford Recreation Area 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 East Crawford Recreation Area (the "Batting Cage Site").
2. Rent.
(a) Lessee agrees to pay to City, as rent for the Batting Cage Site, the sum of
One Hundred and no/100 Dollars ($100) per month during the months of April through
September, inclusive, plus four percent (4%) of the annual 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. The annual rent based upon gross revenue shall
be due on December 31 of each year. All annual rent payments shall be accompanied by
a report of hours of operation and gross revenues for the calendar year.
(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 May 1, 1997, and ending midnight April 30, 2002. 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 One Hundred Fifty and no/100
Dollars ($150) per month, during the months of April through September, inclusive, plus five
percent (5%) of the annual 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.
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
-2-
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. Notwithstanding any provisions in this
Agreement to the contrary, the pitching machine equipment purchased by the Lessee shall
remain the property of the Lessee.
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. In that event, the Lessee
shall have the option to either remove or sell the pitching machine equipment to the City for a
price to be determined on the basis of an appraisal of the equipment by Master Pitching, Inc.,
-3-
Kansas City, Missouri. If Master Pitching, Inc., is unable to provide such an appraisal, the City
and the Lessee shall agree on an appraiser.
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: Russell Weaver
2024 Ridgeview Road
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:
K stin M. Seaton ayor
ATTEST:
%J,/ A�, d:��o
ty__
Lon City Clerk
i?
s
ssell Weaver, "Lessee"
-4-