GROUND LEASE
THIS GROUND LEASE (the “Lease”) made this _____ day of ___________, 2007, by and between the City of Lawrence, a municipal corporation organized under the laws of the State of Kansas (the “City”), and Kansas Athletics, Inc., a not-for-profit corporation organized under the laws of the State of Kansas (the “Lessee”).
NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements contained herein, the parties to this Lease agree as follows:
1. PREMISES: That the City, for and in consideration of the rent, covenants, agreements and conditions hereinafter set forth, to be kept and performed by the Lessee, has this day rented, leased and let, and by these presents does rent, lease, and let unto the Lessee the real property to accommodate a building footprint of approximately 8,268 square feet and generally located in the northern portion of Burcham Park on the Kansas River in the City of Lawrence, County of Douglas, State of Kansas (the “Leased Premises”). The parties acknowledge and agree that the Lessee shall obtain within 90 days of the date hereof an ALTA survey of the Leased Premises and further that such survey shall reflect the exact legal description of the Lease Premises and which shall be incorporated herein as the Leased Premises.
2. TERM: This Lease shall be for a term of twenty-five (25) years beginning on the ______ day of _________________, 2007 (the “Commencement Date”) and ending on the _____ day of ________________, 2032
3. OPTION TO RENEW: City and Lessee covenant and agree that Lessee shall have the option to extend this Lease on the same terms and conditions as set forth herein for twenty-five (25) years, subject to Lessee notifying City in writing at least one hundred eighty (180) days before the last day of the term, of Lessee’s intent to exercise such option.
4. RENT: Lessee agrees to pay to City a total of TWENTY-FIVE DOLLARS ($25.00) as rent for the term of this Lease, in annual installments of One Dollar ($1.00) beginning on the Commencement Date until the end of the term. Rent for the Option Term shall be equal to rent for the initial term.
5. TAXES AND ASSESSMENTS: Lessee shall be responsible for the prompt payment of all taxes and assessments levied against the Leased Premises (if any) or any improvements constructed on the Leased Premises during the term of this Lease.
6. USE OF PREMISES: As an integral part of the consideration for the leasing of the Leased Premises hereunder, Lessee covenants and agrees at its sole cost and expense to build and maintain a boat house on the Leased Premises at all times during this Lease. Lessee shall also have the right to use the Leased Premises for other athletic uses, including but not limited to, practices and meets from time to time.
7. TERMINATION BY CITY: If at any time during the term of this Lease, the Lessee ceases to use any portion of the Leased Premises as a boat house (herein after the “Excepted Use”) or if the Lessee allows any third party to occupy any portion of the Leased Premises without the express written consent of City, or if the Lessee breaches any term, covenant or condition set forth herein, or if the Lessee violates the terms of the Special Use Permit (SUP-07-06-07) approved by the governing body in Ordinance No. 8159, then the City, or its successors or assigns, may, at the sole discretion of the City, give to the Lessee a written notice (the “Termination Notice”) setting forth City’s election to terminate this Lease and exercise any of its options with regard to the Leased Premises pursuant to the terms hereof. City, in its sole discretion, may provide in the Termination Notice that City elects to (1) take immediate possession and title to the improvements located on the Leased Premises; or (2) require the Lessee to return the Leased Premised to its original condition immediately prior to the date of this Lease and prior to the construction of any improvements on the Leased Premises. If City elects to take title and possession to the improvements located on the Leased Premises, Lessee shall deliver and execute any and all documents as may be necessary to transfer title to the improvements to City free and clear of any liens and/or encumbrances. If City elects to require Lessee to return the Leased Premised to its original condition, Lessee shall be responsible for any and all costs and expenses associated with returning the Leased Premises to such conditions, including, but not limited to, demolition or razing of any improvements or structures, the removal of all driveways and other debris, and the costs of removal of any hazardous or toxic materials or substances located or stored on the Leased Premises.
8. INDEMNITY BY LESSEE: Lessee shall save and hold harmless, protect and indemnify City and its agents and assigns, from and against any and all liabilities, obligations, damages, penalties, claims of any kinds, causes of action, costs, charges and expenses, including attorney’s fees and expenses of agents, which may be imposed upon or incurred or served against City by reason of any occurrence or accident arising out of Lessee’s use and occupancy of the Leased Premises. In case any asserted claim or with respect to any action or proceeding brought against the City by reason of any such occurrence, the Lessee, upon written notice from the City, will at Lessee’s own cost and expense, promptly resist and defend such claim or action. Lessee agrees, upon written request, to provide City with status reports and reasonable information about the pendency, disposition and/or handling of any such claim.
9. CONDITION OF THE LEASED PREMISES: Lessee agrees that it has had an adequate opportunity to inspect the Leased Premises and make its own independent evaluation of the condition, location, and suitability of the Leased Premised of Lessee’s intended use hereunder. It is expressly understood that City makes no warranties or guaranties whatsoever except those specially set forth in writing under this Lease.
10. IMPROVEMENTS: Lessee shall construct a boat house in conformance with the approved Special Use Permit (SUP-07-06-07), including all conditions attached thereto. Lessee shall ensure its engineers, contractors, subcontractors, and agents do not unreasonably interfere with the public’s and the City’s use of Burcham Park during construction of the boat house facility. Lessee shall not damage, nor permit its contractors, subcontractors, agents or employees to damage any trees in Burcham Park, other than those identified in the approved tree preservation plan reference in Condition Number 4 of Ordinance No. 8159. Before commencing construction, Lessee shall meet with the City Manager and/or his designee to review construction plans and project deadlines. Lessee shall be required to put in place and maintain landscaping on the Leased Premises so that the Leased Premises is landscaped in a manner approved by City. Lessee may, during the term or any extension hereof, at its own expense, make alterations or improvements to the interior or the exterior of the Leased Premises upon the written approval of City, in its capacities as property owner and land use regulator, as appropriate. Such approval shall not be unreasonably withheld provided such alteration or improvement is consistent with the provisions of this Lease. Any alterations and/or improvements, including the construction of the boat house, shall be constructed in accordance with all laws, applicable building and zoning codes, ordinances and public regulations and in accordance with the building code of the City of Lawrence, then in force and applicable thereto. Lessee shall be responsible for obtaining all necessary building permits and inspections for the initial boat house facility and any subsequent alterations and/or improvements thereto. Lessee agrees to construct the aforementioned alterations and/or improvements and maintain the Leased Premises in such a manner as to present a clean, neat, attractive appearance at all times and to prevent any unsightliness. All improvements and related fixtures constructed on the Leased Premises by Lessee shall be owned by Lessee during the term of this Lease.
11. RELATIONSHIP OF THE PARTIES: The parties hereto each acknowledge and agree that this Lease, the original construction of the boat house and improvements, or any subsequent alterations or improvements on the Leased Premises shall not create any type of partnership, joint venture or agency relationship between the City and Lessee. City shall have no duty to inspect Lessee’s improvements except as required by law or inspect or supervise any of Lessee’s operations, employees, subcontractors or suppliers.
12. UTILITIES: Lessee shall pay for its own light, heat, power, water, sanitary sewer, stormwater utility, trash service, and all other utilities, connection costs, assessments or utility services used by it in, on or about the Leased Premises and shall contract for the same in its own name. City agrees to reasonably cooperate in allowing the Lessee to locate electrical, telephone, water, gas, and other similar utility lines which solely serve the Leased Premises and improvements permitted thereon (the “Utility Lines”) on adjacent property of the City which is designated by the City from time to time; provided that all such Utility Lines shall be installed and maintained solely at the expense of the Lessee and the Lessee shall relocate such Utility Lines solely at the expense of the Lessee if, from time to time, the City notifies the Lessee that the City wants them relocated to public streets or rights of way or to other property of the City. The provisions of this paragraph only create a license which is revocable and do not create an easement in favor of the Lessee on any property of the City.
13. REPAIRS, MAINTENANCE AND ALTERATIONS: Lessee agrees that it will, during the term of this Lease, keep and maintain the Leased Premises and all improvements thereon and the appurtenances thereto belonging in good condition and repair and that it will keep the same free from filth, nuisance or danger of fire and in all respects and at all times use and maintain the Leased Premises so as to fully meet and comply with regulations, ordinances and all other laws now in force or which may hereafter be enacted. City agrees that it shall provide and maintain access to the Leased Premises for Lessee, except that the City shall have no duty to provide or maintain access during a flood or significant rain event.
14. INSURANCE: Lessee shall provide insurance on the Leased Premises in amounts and conditions as City requests in writing. City may request different amounts and conditions of such insurance not more often than annually. Lessee acknowledges that City will not provide any insurance for the Leased Premises.
15. ASSIGNMENT AND SUBLETTING: Lessee may not assign or sublet in whole or in part the Leased Premises during the term of this Lease without the written permission of City. Any such assignees or sublessees shall be not-for-profit entities and shall use the Leased Premises for the sole purpose of providing not-for-profit athletic, recreational or governmental services. City may assign its rights under this Lease and such successive successors and assigns shall have the rights available to City under this Lease.
16. ACCESS TO LEASED PREMISES: City and City’s agents shall have access to the Leased Premises at all reasonable times and on reasonable notice to Lessee during the term hereof for the purpose of examining and inspecting the same, subject in each instance to Lessee’s rules and regulations regarding its security systems. For so long as City owns and maintains roads or streets or land adjacent to the Leased Premises, Lessee shall have a right of ingress and egress to the Leased Premises on such roads or land except when access is affected by a flood or significant rain event.
17. CITY’S USE OF THE BOAT HOUSE: Lessee shall permit the City to use the boat house up to fifteen (15) days per calendar year for a City or public use, at no charge subject to the following: the City or its invitees shall not use and/or damage any equipment stored at the facility; the City shall identify its requested dates for usage at least 60 days in advance; usage shall not occur on consecutive weekends; usage shall not interfere with team activities at the facility. The City shall have the ability to select the days, subject to the conditions listed above with the approval of Lessee, which approval shall not be unreasonably withheld. The City’s use of the boat house as provided in this paragraph may, but is not required to, be exclusive. The Lessee may require the City to execute a reasonable use agreement for its use of the boat house under this paragraph. If the City desires to use the boat house more than fifteen (15) days per calendar year, the City agrees to abide by Lessee’s standard facility lease procedures.
18. DEFAULT BY THE LESSEE:
a. In the event Lessee shall fail or neglect to perform or observe any covenant, agreement, condition, duty or undertaking hereunder, including the conditions set forth in Ordinance No. 8159, except non-payment of rent, for thirty (30) days, after written notice thereof from City, City shall have the right to declare this Lease null and void and to exercise any of its rights under Section 7 as if the Leased Premises were no longer used for the Excepted Use; provided, however, that if any default for which notice has been given, as aforesaid, shall be remedied within a thirty (30) day period, or if it is a default that cannot be cured within thirty (30) days, and if Lessee commences cure within thirty (30) days and diligently pursues cure, then this Lease shall remain in full force and effect the same as though no such default had occurred.
b. In the event any default for which notice has been given as aforesaid, because of its nature, cannot be completely cured or is not completely cured with the grace period or periods hereinabove granted, such default shall be deemed to have been remedied for the purpose of this Article if the correction thereof shall have been commenced within the prescribed grace period or periods and shall, when commenced, be diligently prosecuted to completion in accordance with reasonable land use, construction or property maintenance and management standards.
19. SURRENDER OF POSSESSION: Lessee covenants and agrees that it will, upon the termination of this Lease, whether because of lapse of time or because City by reason of Lessee’s default hereunder, has declared this Lease null and void, immediately surrender possession of the Leased Premises as provided hereunder.
20. REMOVAL OF EQUIPMENT: At any time during the term of this Lease and upon the termination of this Lease, Lessee shall have the right to remove from the Lease Premises all equipment, including by not limited to furniture, appurtenances, or trade fixtures, installed, stored, or placed herein by Lessee provided Lessee makes any repairs to said premises required of such removal.
21. NOTICES: All notices sent under this Lease shall be given in writing and shall be deemed to be properly served only if sent, postage prepaid, by certified mail with return receipt requested, to City at City Hall, Attention: City Manager, P.O. Box, 708, Lawrence, Kansas 66044 and to Lessee at Kansas Athletics, Inc. 1651 Naismith Dr., Lawrence, KS 66045 Attn: Corporate Counsel. Such notices shall be deemed to have been given on the date upon which the same is deposited in the United States mail with postage prepaid. Each party may, by written notice to the other, change its address for notice purposes.
22. WAIVER OF BREACH: No waiver of the breach of any covenant or condition contained in this Lease shall be deemed a waiver of any subsequent breach of the same or any other covenant or condition.
23. MEMORANDUM OF LEASE: All covenants and agreements contained herein shall run with the Leased Premises and shall be binding and inure to the benefits of the parties hereto and their respective heirs, legal representatives, successors and assigns Each of the parties hereto agrees to execute a memorandum of this Lease which will be recorded with the Register of Deeds of Douglas County.
24. SEVERABILITY: If any provision of this Lease shall be determined to be void, unenforceable or illegal for any reason, this Lease shall be ineffective only to the extent of such prohibition and the validity and enforceability of all remaining provisions shall not be affected thereby.
25. AMENDMENTS AND MODIFICATIONS: The parties agree that this Lease shall not be amended, modified, altered or waived in any manner unless such change is in writing and signed by both parties.
26. ENTIRE AGREEMENT: This Lease contains the entire agreement between the parties and no modification of this Lease shall be binding upon the parties unless otherwise evidenced by an agreement in writing signed by the parties after the date hereof.
27. SIGNAGE: The parties agree that Lessee shall have the right to display signage on the Boathouse facility and shall have the rights to name the building. Lessee shall pay for any costs associated with the signage, including sign permit fees. The City shall review and approve all signs prior to installation, and such approval shall not be unreasonably withheld. All signs on the leased premises shall comply with the City’s sign code.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease the day and year first above written.
City: City of Lawrence, Kansas Lessee: Kansas Athletics, Inc.
By: _________________________ By: _________________________
Name: David L. Corliss Name: Lew Perkins
Title: City Manager Title: Director of Athletics