LEASE AGREEMENT BETWEEN THE CITY OF RAPID CITY AND POST 320 BASEBALL, INC.

For and in consideration of the mutual promises and agreements contained herein, the CITY OF RAPID CITY (“City”), a South Dakota municipal corporation, of 000 Xxxxx Xxxxxx, Xxxxx Xxxx, XX 00000 agrees to lease to Post 320 Baseball, Inc. (“Lessee”), a domestic nonprofit corporation organized under the laws of the State of South Dakota, of 0000 Xxxxxx Xxxx Xxxxx, Xxxxx Xxxx, XX 00000, a specified area to operate a youth baseball program, subject to the following terms and conditions:

1. Consideration. The City hereby leases to Lessee the below described premises (“Premises”) for the sum of One Dollar ($1.00) and other good and valuable consideration, including but not limited to, maintenance of general grounds, administration of a youth baseball program open to the citizens of the City, and payment of all utility bills as specified herein. Said sum is payable to the City of Rapid City on or before the first day of January of each succeeding year.

2. Term and Renewal. The term of this Agreement is from May 1, 2021 (“Effective Date”) to December 31, 2031. Upon expiration of the initial term, Lessee shall have an exclusive right to enter into a lease with the City for the Premises for one (1) additional successive term of ten (10) years. Any future agreements between the parties related to the Premises shall be under the terms and conditions mutually agreed to by the parties at that time.

3. Premises. The Premises leased by the City to Lessee are legally described as follows:

A portion of Rapid City Greenway Tract 8, located in Section 3, Township 1N, Range 7E, Rapid City, Xxxxxxxxxx County, South Dakota.

See Attachment A (map with boundaries of Premises clearly distinguished).

4. Use of Premises by Lessee. Lessee shall have priority use of the Premises during the lease period, subject to the terms of this Agreement, for the purpose of administration of a youth baseball program. Lessee agrees to cooperate with City’s use and others’ use of the Premises in compliance with this Agreement.

5. Surrender of Premises. Lessee agrees to surrender the Premises, or a part thereof, in the event it is necessary for expansion or utilization of public park facilities or for any other purpose which City believes is necessary or important and the City makes such written demand. If such a written demand is made, then Lessee understands that this Agreement shall be terminated and such termination shall not be considered a breach by the City or Lessee of the terms of this Agreement. Lessee further agrees to abandon the Premises, or a part thereof, in the event such a demand is made by the United States government or the State of South Dakota or if Lessee or City is ordered to do so by an order of any Court. If such a demand or order is made, then Lessee understands that this Agreement shall be terminated and such termination shall not be considered a breach by the City or Lessee of the terms of this Agreement.

6. Use by the City. Lessee agrees that the City may use the Premises when the Premises are not required for use by Lessee, and such use by the City may or may not be consistent with the normal usage of said Premises. If the City uses the Premises under this Section, it agrees to leave the Premises in substantially the same condition, reasonable wear and tear excepted. For purposes of this Section, City use shall mean organized activities conducted or sponsored by the City.

7. Use by Others. Lessee shall allow other persons or organizations to use the Premises if the Premises are not in bona fide use by the Lessee, and Lessee may not require that such use by others shall be consistent with the normal usage of said Premises. This use is in addition to any assignment or sublease of the Premises, which is addressed in Section 13.

In addition to the provisions in Section 6, Lessee agrees to allow other persons or organizations to use the Premises at the City’s direction, subject to reasonable terms and conditions, even if it interferes with Lessee’s use of the Premises as provided in Section 4. City and Lessee agree that Lessee will have the opportunity to review proposals for such use of the Premises at least six months in advance, or before the schedule for the season is complete, whichever is later. If other persons or organizations use the Premises, Lessee may be reimbursed for expenses that it incurs associated with the use of the Premises by other persons or organizations. In the alternative or in addition to reimbursement, Lessee may be offered the opportunity to work on the event and earn compensation for its program. Both parties agree that Lessee or its designee shall participate in the local organizing committee (comprised of members of Post 320 Baseball, Inc., City, and the requesting persons or organizations) that is charged with reviewing and fully considering any proposals for use of the Premises by others.

8. Contacts. Anything required by this Agreement to be delivered to Lessee in writing shall be delivered to the following contacts. The contact for Post 320 Baseball, Inc. is: Xxxxx Xxxxxxx, President for Post 320 Baseball, Inc., xxxxxxxx00@xxxxx.xxx. Lessee has a continuing obligation to ensure that the Director of Parks and Recreation has accurate contact information for Lessee and to notify the Director of any changes to the contact information herein.

Unless otherwise specified in this Agreement, the contact for the City will be: Director of Parks and Recreation, 000 Xxxx Xxxxxxxxx, Xxxxx Xxxx, XX 00000, (000) 000-0000.

9. Maintenance. Lessee agrees to maintain said Premises under the authority of the Director of Parks and Recreation or his/her designee as detailed herein.

9.A. Lessee Responsibilities.

i. Property Damage. Lessee agrees to maintain said Premises under the authority of the Director of Parks and Recreation or his/her designee. Lessee agrees to repair or replace any property on the Premises damaged, either willfully or accidentally, by its agents, sublessee(s), or invitees. Lessee is entitled to recover costs for damages or to require repairs for damages or improper maintenance that

occurs while the Premises is used and controlled by others, including those enumerated in Sections 6 and 7 of this Agreement.

ii. Trash and Recycling. Lessee agrees to be responsible for policing the Premises and picking up and making ready for City collection of all trash, recyclables, debris, and waste material of every nature, resulting from its use of the Premises by itself or any spectators in attendance at the Premises. Lessee also agrees to place all collected trash, recyclables, debris, and waste in a designated location for removal by the City. Lessee agrees that it will not place yard waste or building materials in City trash receptacles. Lessee agrees to promote and encourage recycling throughout the Premises.

To avoid the public’s misuse of trash and recycling receptacles during the off- season, Lessee agrees to move all trash and recycling receptacles to an area of the Premises that is inaccessible to the public, as approved by the Parks Department, within fourteen days of the end of the season.

iii. Game Days. Lessee is responsible for preparation of the playing fields prior to all scheduled game days.

iv. Grass and Weeds. Lessee shall mow any grass areas within the Premises on a substantially weekly basis. Lessee shall control weeds and grass inside and outside of fence lines through string trimming or chemical vegetation control methods. This obligation includes the backstop fence, foul fence lines, and the outfield fence. If the Premises includes other exterior fences around a portion or all of the Premises, Lessee shall control grass/weeds in such fence lines and six feet outside of the fence. The area to be maintained within the Premises is defined with a boundary on the map shown in Attachment A.

If Lessee fails to maintain any grass or weeds as is required by this section, the Parks Division Manager may maintain the areas and charge Lessee at the rate of One Hundred and Twenty-Five Dollars ($125.00) per hour for each person and machine used, provided that the Parks Division Manager: (1) determines the need for maintenance; (2) gives Lessee three (3) days’ notice of his intent to do so if Lessee fails to maintain the areas; and (3) determines he/she has the available manpower and equipment to perform the maintenance. Should the Parks Division Manager not have the available personnel and equipment, he/she can arrange for a private contractor to maintain the areas at the expense of Lessee.

v. Notification to City. Lessee agrees to promptly notify City in writing if it observes any needed maintenance to exterior sidewalks, parking areas, trees or other items that the City is obligated to maintain under Section 9.B or any items other than those that the Lessee is obligated to maintain. Lessee may provide the written notification by email to the Parks Division Manager. At the time of this Agreement, the email address for the Parks Division Manager is xxxxx.xxxxxxxx@xxxxx.xxx.

vi. Irrigation System. Lessee is responsible for the day-to-day operation, adjustment, maintenance, and replacement of the sprinkler heads on the automatic irrigation system. Lessee shall run water through each zone on the system and visually inspect each sprinkler head at least twice a month to ensure proper operation of sprinkler heads. Lessee shall replace sprinkler heads with heads of the same make and type, unless a different sprinkler head is approved by the Parks Division Manager or his/her designee. Lessee is responsible for maintenance and repair of all lateral irrigation piping.

In lieu of Lessee being charged for water usage for irrigation of the Premises, each irrigation system shall be connected to City’s central control irrigation system. Connection to the central control irrigation system will be performed by the Rapid City Parks Maintenance Division. All maintenance and changes to a specific watering program shall be performed by the Parks and Recreation Department maintenance personnel, and Lessee may request modifications through email to the Parks Maintenance Supervisor or the Parks Division Manager. At the time of execution of this Agreement, the email for the Parks Division Manager is xxxxx.xxxxxxxx@xxxxx.xxx. To obtain current emails, Lessee should contact the Parks Department Office at 000-000-0000.

vii. Structures and Buildings. Lessee is responsible for all maintenance and repair of structures and buildings on the Premises. This responsibility includes, but is not limited to, cleaning all structures and buildings on a regular basis, painting and staining the structures and buildings and maintaining/repairing/replacing siding, fascia, soffits, plumbing, flush valves, drinking fountains, water heaters, bleachers, and other fixtures as applicable. Lessee is responsible for all maintenance and repair of lighting systems and all other electrical systems. This responsibility includes, but is not limited to, replacing light bulbs in baseball field lighting systems, repairing damage to baseball field lighting systems, and repairing wiring in electrical systems. Lessee is also responsible for all maintenance and repair of fences and signage.

viii. Winterization preparation. Lessee shall ensure that all building systems, such as plumbing, electrical, and heating and cooling systems, are operational through the season to ensure proper winterization at the end of the season. Lessee shall ensure that all irrigation zones are operational with no leaks in piping or sprinkler heads, to ensure proper winterization. Lessee shall report any modifications to the building systems or sprinkler system zones to the Parks Division Manager prior to the end of the season to ensure proper operation and winterization.

ix. Fireworks. No fireworks within the Premises. If Lessee intends to have fireworks outside the Premises, Lessee must coordinate with the Director of Parks and Recreation or his/her designee and the City Fire Chief. Lessee shall obtain all

necessary permits and authorizations before planning fireworks associated with events at the facility.

If Lessee obtains a City permit authorized by the Fire Chief to display fireworks, Lessee will be allowed to shoot fireworks within the parameters of the permit.

Lessee will be liable for any damage done by the fireworks.

x. Copyrights. Lessee will not perform publicly any copyrighted content, including but not limited to live music or broadcast music (from recordings, radio, television, or via streaming services) without the proper authorization from the copyright holder. Lessee will abide by all copyright laws in conjunction with Lessee’s use of the Premises. Lessee will indemnify, defend, and hold harmless the City, its common council, officers, employees, and agents against all claims, expenses and losses resulting from any copyright infringements by Lessee that occurred on City property.

9.B. City Responsibilities.

i. Trash and Recycling. City will provide 300 gallon trash and recycling receptacles for use at the Premises and will remove trash on a regular schedule.

ii. Limited Maintenance. The City is not responsible to provide any maintenance to the Premises, or any part thereof, unless the City has explicitly agreed to do so within this Agreement. All maintenance not explicitly agreed to be done by the City within this Agreement is Lessee’s responsibility.

The City, at its own expense, agrees to provide the following maintenance to the Premises: maintenance to the infrastructure outside of the stadium, including but not limited to, repair of and necessary upgrades to broken water mains, repair of and necessary upgrades to sewer infrastructure, repair of and necessary upgrades to storm sewer infrastructure, maintenance of electrical transformer(s), and all repairs and surface maintenance of parking lots.

iii. Irrigation. The City shall provide water to the Premises for the purpose of irrigating the facility. The City specifically reserves the right to restrict water usage under this Agreement if water restrictions are placed on other water users within the City. Not prior to April 20 of each year, City will provide charge up and run through the automatic irrigation systems to check for proper operation. City will provide Lessee with a radio for remote operation of the irrigation system, which Lessee shall use for the day to day maintenance, repair, and monitoring of the irrigation system. If the radio is lost, stolen, broken, or is rendered unusable, Lessee shall pay $1500 for the replacement radio. City is responsible for the maintenance and repair of the following irrigation elements, to the extent applicable: curb stops, backflow prevention devices, backflow enclosures, main line piping, electric control valves, control wire, decoders and

controllers. Lessee shall notify Parks Division Water managers by email if any of these irrigation elements are malfunctioning or broken.

iv. Winterization. On or about October 1st of each year, City shall winterize the irrigation systems and the buildings/structures on the Premises. An employee from the Parks and Recreation Department shall contact Lessee to schedule a mutually agreeable winterization date. Lessee shall have all systems in working order on the winterization date to ensure proper winterization.

v. Trees. City will provide maintenance to all trees on Premises, including hazardous tree removal, broken limb removal and corrective pruning. No tree shall be planted or removed without prior approval from the Parks Division.

10. Changes to the Premises. No construction or installation of any improvements to the Premises shall occur until the Director of Parks and Recreation or his/her designee has given prior written approval to the proposed construction. Lessee shall promptly notify the Director of its intentions to construct or install any improvements upon the Premises, and Lessee agrees that it will not perform any such construction unless and until it receives written approval from the Director. Any construction or installation of any improvements shall be in conformity with the municipal codes of the City, including any construction within the floodplain or floodway. The parties agree that any permanent improvements or fixtures constructed by Lessee on the Premises are the property of the City.

11. Fees Charged to the Public. Lessee agrees that all fees charged by Lessee to the public for entrance, use, or access to the Premises shall be competitive with fees charged by similar private facilities. City shall have the right to request information related to fees charged by Lessee to the public for access or use of the facilities and to request information from Lessee that support the competitiveness of any such fees with similar private facilities. Upon receipt of such a request, Lessee shall timely provide the requested information. If City determines that the fees are not in compliance with this Section, then Lessee shall adjust its fees in accordance with

the City’s direction.

12. Non-Discrimination. The parties agree that Lessee shall comply with all civil rights and accessibility legislation, including Title VI of the Civil Rights Act of 1984, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act, and Lessee shall not on the grounds of race, color, sex, creed, religion, ancestry, national origin or disability discriminate or permit discrimination against any person or group of persons in any manner prohibited by local, state, or federal laws. By signing this Agreement, Lessee certifies that it complies, and will continue to comply, with this nondiscrimination requirement.

13. Assignment or Subletting. This Agreement shall not be assigned, nor the Premises subleased, by Lessee except on written consent and approval of the City Council. The fee(s) or payment(s) charged by Lessee for any assignment or sublease shall be limited in value to the cost Lessee will incur from utilities and maintenance arising from the assignment or sublease, as applicable.

Requests for City approval of an assignment this Agreement shall be submitted to the Director of Parks and Recreation no less than sixty (60) days before the assignment is intended to be effective. Requests for City approval of a sublease to this Agreement shall be submitted to the Director of Parks and Recreation no less than forty-five (45) days before the sublease is intended to be effective. All such requests for approval shall include a copy of the assignment/sublease and all relevant information, including any payment made as part of the sublease. City reserves the right to withhold consent for any such assignment or sublease, or to negotiate further with Lessee and with intended assignee/sublessee with regard to rights the Premises, or to enter into a separate Agreement with assignee/sublessee and/or Lessee with regard to the intended assignment or sublease of all or a portion of the Premises.

14. Expense. City shall assume no expenses as a result of this Agreement or any of the operations of Lessee except for those expenses generated as a result of City’s responsibilities specifically discussed in this Agreement. Lessee agrees to pay its own administration expenses, including but not limited to, lights and electricity, grounds crew, office supplies, miscellaneous equipment, and secretarial fees. Lessee agrees that the electric utilities will be metered in the name of and billed directly to Lessee and that all expenses incurred by it shall be paid within thirty (30) days of due date. If Lessee obtains gas utilities, Lessee agrees that the gas utilities will be metered in the name of and billed directly to Lessee and that all expenses incurred by it shall be paid within thirty (30) days of due date.

Unless otherwise agreed to by City, Lessee agrees to provide all funds and resources for use and maintenance of the Premises discussed in this Agreement. All costs expected and unexpected will be paid by Lessee unless other arrangements are made with the City. If Lessee makes any improvements to the Premises that are paid for with public funds, Lessee shall comply with applicable bid laws.

15. Termination of Agreement. City reserves the right to periodically review the performance of Lessee to evaluate compliance with the terms of this Agreement. Either party may terminate the Agreement for breach of this Agreement upon thirty (30) days written notice to the breaching party. If the breaching party does not cure the breach prior to the date of termination, then the other party may terminate the Agreement. If the breaching party attempts to diligently cure the breach, to the extent such breach cannot be reasonably cured within thirty

(30) days, the other party may grant additional time to cure as it deems appropriate, but is under no obligation to do so.

This Agreement may be terminated by either party giving notice of its intent to terminate the Agreement on or before October 15 of any year, which termination shall be effective as of January 1 immediately following.

If Lessee shall dissolve, become insolvent or otherwise unable to fulfill the terms of this Agreement, or abandon the use of the Premises for one season, this Agreement shall terminate and Lessee shall have no further rights hereunder. Discontinuation of use of all or part of the Premises for maintenance, repair or rehabilitation purposes of the grounds shall not be deemed as abandonment. If Lessee changes the character of its operation significantly from that of a non-

profit corporation, then this Agreement shall terminate and Lessee shall have no further rights hereunder.

16. Liability. Lessee agrees that the City shall be held harmless from any and all liability arising from any operation or use under this Agreement of the described Premises by Lessee or its agents or employees or any other person using the Premises. Lessee further agrees to defend the City against any and all claims arising from the operation or use under this Agreement of the described Premises by it, its agents, employees, or any other person using the Premises. The parties agree that Lessee may enter into separate agreements with other users of the Premises to hold harmless Lessee, its directors and members from claims arising from the use of others as discussed in this Agreement.

Lessee agrees to purchase and maintain bodily injury and property damage insurance for each occurrence of injury or damage in the minimum amount of One Million Dollars ($1,000,000) for each occurrence of injury or damage and an aggregate limit of not less than Two Million Dollars ($2,000,000). The City shall be named an additional insured in said policy or policies and the Lessee shall furnish to the City evidence of insurance by a certificate of insurance of required coverage. The certificate of insurance of required coverage shall state that the City shall be given any notice of cancellation at least 30 days prior to any cancellation, unless the cancellation is for nonpayment of premiums. Lessee’s insurance coverage shall be primary to any insurance coverage maintained by the City. Lessee’s insurance coverage shall not seek contribution from any insurance coverage maintained by the City. The parties agree that the City may adjust these insurance requirements on an annual basis and will provide written notice to Lessee of any additional requirements for insurance required by this Section.

17. Public Accounting. If the City makes a written request for a public accounting of Lessee’s financial transactions for an operating year that falls within the term of this Agreement, Lessee agrees to provide the Director of Parks and Recreation with a public accounting of its financial transactions. Lessee agrees to provide the public accounting within 60 days of the

City’s written request. Such accounting shall be in the form of a report of income and expenses and a balance sheet of Lessee’s assets and liabilities for the requested operating year.

18. Concession, Advertising, and Naming Rights. Lessee shall have the right to operate concessions for the sale of beverages, food, programs, and other items usually sold in the public parks. If Lessee obtains the required license or licenses through the City, Lessee shall have the right to sell alcoholic beverages on the Premises pursuant to the terms of the license or licenses. All revenue derived from concessions shall belong to Lessee.

Lessee shall have the right to sell advertising space on the inside of the Premises boundaries (to face inward towards the Premises), and all revenue derived from advertising shall belong to Lessee. Lessee agrees to maintain and repair any physical advertising on the inside of the Premises. Lessee agrees to remove any physical advertising on the Premises if it is in a state of disrepair, if this Agreement has been terminated for any reason, or if the Agreement term has ended and the Agreement is not renewed. Additionally, Lessee agrees to return the Premises to its original condition, unless the City agrees in writing to accept a different condition. If Lessee does not abide by the terms in this paragraph, the City may cause such physical advertising to be

removed and the Premises to be restored to their original condition, and Lessee agrees to reimburse City for 150 percent of the costs associated with such removal and restoration. Lessee will indemnify, defend, and hold harmless the City, its common council, officers, employees, and agents against all claims, expenses, and losses resulting from the publication and contents of the any advertisement, including but not limited to, claims for libel, violation of privacy, copyright infringements, plagiarism or advertising errors or omissions. The City is not responsible for any loss, damage or theft to advertising.

Lessee and City shall jointly hold all naming rights for the facilities and Premises, and any naming of fields, buildings, improvements or areas shall be by mutual agreement of the parties, and shall be in compliance with the City’s Policy for Naming/Renaming of Parks and/or Recreation Facilities as adopted and revised.

19. City Authority. All matters pertaining to the terms of this Agreement shall be subject to the powers of the City Council and its designated authorized agents consistent with the laws of the State of South Dakota. The City Council appoints and delegates the Director of Parks and Recreation as the primary contact point for City with Lessee in administering and fulfilling the terms of this Agreement.

20. Relationship between the Parties. This Agreement does not create any employee/employer relationship between the City of Rapid City and Lessee, its agents or employees. Nothing contained in this Agreement is intended to create a partnership or joint venture between Lessee and City, and no agent of Lessee shall be the agent of City. Lessee covenants that it will not take any action in the name of, or by holding itself out as the agent of, the City of Rapid City.

21. Integration. The parties agree that this Agreement, along with any attachments, constitutes the entire understanding between the parties and supersedes all prior negotiations, agreements, and understandings, whether oral or written.

22. Savings Clause. Should any of portions of this Agreement be declared void, the remainder of the Agreement shall remain in full force and effect.

23. Choice of Law. This Agreement shall be governed by the laws of the State of South Dakota and any action to enforce the terms of this Agreement shall be venued in the 0xx Xxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx.

24. Waivers. The failure by one party to require performance of any provision of this Agreement shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

25. Amendments. This Agreement may only be amended by a written document duly executed by both parties.

26. Headings. The headings and numbering of the different sections of this Agreement are inserted for convenience only and are not to control or affect the meaning, construction or effect of any provision.

Dated this day of , 2021.

CITY OF RAPID CITY

Xxxxx Xxxxxxxx, Mayor

ATTEST:

Finance Director (SEAL)

State of South Dakota )

ss. County of Xxxxxxxxxx )

On this the day of , 2021, before me, the undersigned officer, personally appeared Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, who acknowledged themselves to be the Mayor and Finance Director, respectively, of the City of Rapid City, a municipal corporation, and that they as such Mayor and Finance Director, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the name of the City of Rapid City by themselves as Mayor and Finance Director.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

(SEAL)

Notary Public, South Dakota

My Commission Expires:

Dated this day of , 2021.

POST 320 BASEBALL, INC.

By: Its:

State of South Dakota )

ss. County of Xxxxxxxxxx )

On this the day of , 2021, before me, the undersigned officer, personally appeared , who acknowledged himself/herself to be the of , and that he/she, as such , being authorized so to do, executed the foregoing instrument for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

_ Notary Public, South Dakota

My Commission Expires:

(SEAL)

Attachment A – Xxxx Xxxx Memorial Field