Loading...
08-27-1996 (City Council) Agenda Packet AGENDA WYLIE CITY COUNCIL Wylie Municipal Complex August 27, 1996 7:00 p.m. CALL TO ORDER INVOCATION PLEDGE OF ALLEGIANCE PRESENTATION Presentation of the Mission Statement by the Employees of the City of Wylie Presentation of Award for Silent Hero to Susie Ellison ACTION ITEMS 1. Consider and Act Upon Approving Minutes for July 9, July 16 and July 30, 1996 2. Consider and Act Upon Extending Bank Services Contract with American National Bank 3. Consider and Act Upon Approving a Resolution Creating an Ad Hoc Public Safety Committee 4. Consider and Act Upon Granting a Contract to Dale Wigington for the Operation of the Batting Cages at Community Park STAFF REPORTS CITIZEN PARTICIPATION EXECUTIVE SESSION 5. Hold Executive Session Under Section 551.075 Conference With Employees To Receive Information and Question Employees Regarding Pending Litigation, City of Parker v. City of Wylie, Cause No. 219.458.96, District Court of Collin County, Texas 219 Judicial District ADJOURNMENT Posted on this the 23rd day of August, at 5:00 p.m. THE WYLIE MUNICIPAL COMPLEX IS WHEELCHAIR ACCESSIBLE. SIGN INTERPRETATION OR OTHER SPECIAL ASSISTANCE FOR DISABLED ATTENDEES MUST BE REQUESTED 48 HOURS IN ADVANCE BY CONTACTING THE CITY SECRETARY'S OFFICE AT 442-8100 OR TDD 442-8170 111 y 1i+¢ Cit © nc�1 #2 Agenda Communication for August 27, 1996 Extension of Bank Depository Contract with American National Bank Issue Discuss and consider extending the bank depository contract with American National Bank for the period of August 27, 1996 through August 26, 1997. Background The City awarded American National Bank (the Bank) a two year depository contract in July 1994. The depository contract includes the basic services of receiving deposits, paying items, wiring funds out, receiving funds wired in, stop payments, and other normal business banking activities. The contract provided for two (2) - one (1) year contract extensions, if mutually agreed upon by the City and the Bank. The City has been receiving excellent service from the Bank and staff has a good rapport with the Bank personnel. We receive daily faxes of our account activity from the Bank and other services such as wiring funds for investments or debt service payments are performed expeditiously. American National Bank continues to exceed our bank rating guidelines with a Rank 2 - "Above Average" from PMA Financial Network Inc. Attached for your review is a copy of The PMA Report. This report shows that American National has increased total assets from $374 million in 1994 to $396 million in 1996. They have continued to improve on rankings relating to Core Capital, Non-performing Assets, and Return on Assets (ROA) since the beginning of our contract with them. Financial Considerations The City receives interest on deposits from all of its bank accounts with the exception of an account relating to U.S. Dept. of Housing and Urban Development grant for storm damage. It is a requirement of the grant that this account be a non-interest bearing checking account. The bank has been charging only minimal fees for services. The City has earned $10,744 in interest income from checking accounts over the last twelve months. See the attached schedule on Interest Earnings History. Legal Considerations Article VII, Section II Home Rule Charter establishes the authority of the City Council to designate a city depository. Board/Commission Recommendation N/A Staff Recommendation The Staff recommends that the City Council extend the Bank Depository Contract with American National Bank for one year and authorize the City Manager to sign the agreement. Attachments Letter from American National Bank. Interest Earnings Table. Prudent Man Analysis report. tIn ,, ( PQ^� Prepared By Reviewed by Finance City Manager Approval AMERICAN NATIONAL BANK ESTABLISHED 1875 August 22, 1996 Brady Snellgrove Director of Fiscal and Human Resources 2000 Highway 78 North Wylie,Texas 75098 Dear Mr. Snellgrove: We would be pleased to extend our current depository contract with the City of Wylie for an additional year. The current contract is outlined in the Bank Depository Contract submitted to the City of Wylie in May, 1994. Thank you for the opportunity to provide banking service to the City of Wylie. Sincerely, en Lane Senior Vice President 301.Hwy_78 75098-3944 P.O.Box 1268 Wylie,Texas 75098-1268 Metro(214)442-6565 Phone(214)442-6565 Fax(214)442-2391 Member FDIC City of Wylie, Texas American National Bank Interest Earnings History For the Past Twelve Months August 1996 Operating Account Payroll Account Yield Amount Yield Amount AUG 95 1.75% 550.32 1.75% 21.50 SEP 95 1.75% 594.30 1.75% 23.38 OCT 95 1.75% 553.78 1.75% 22.84 Nov 95 1.75% 1,074.86 1.75% 26.58 DEC 95 1.75% 1,893.86 1.75% 23.87 JAN 96 1.75% 2,261.72 1.75% 24.14 FEB 96 1.75% 1,306.25 1.75% 24.48 MAR 96 1.75% 571.93 1.75% 24.27 APR 96 1.75% 433.58 1.75% 24.96 MAY 96 1.75% 692.51 1.75% 25.28 JUN 96 1.75% 238.07 1.75% 23.85 JUL 96 1.75% 306.34 1.75% 31.74 10,477.52 296.89 Vagi PMA FINANCIAL NETWORK INC PMA REPORT THE PRUDENT MAN ANALYSIS on a Financial Institution Information contained in this report has been taken from sources which PMA believes to be reliable. Nonetheless,it cannot be guaranteed to its accuracy or completeness. The opinions expressed are those of PMA and are subject to change without notice. 495 North Commons Drive • Suite 102 • Aurora, Illinois 60504 Telephone 708.898.0078 Fax 708.898.0081 PMA RATING SCALE ( 1 - 5 ) Rank 1 - "Superior" Institutions rated "Superior" consistently report the best financial figures in the industry. Their capital ratios are high and problem loans are kept at a minimum. They also have a high interest spread and generate a healthy return on assets by keeping expenses under control. Excellent management characteristics are displayed in this category. Timely payment of investments at these institutions is certain. Rank 2 - "Above Average" Institutions rated "Above Average" are also strong institutions. Capital ratios are solid at institutions in this category. Delinquent and past due loans are dealt with prudently and kept to modest levels. Low expense levels are maintained by solid management policies which continue to generate above average profit margins. There is a high expectation of timely payment of investments at these institutions. Rank 3 - "Average" Institutions rated "Average" meet federal capital requirements. When compared to the above two ranks,the average institution in this category displays lower profitability and more problematic loans. Management should be reviewing the focus of their policies to improve future financial figures. Timely payment of investments is expected at these institutions. Rank 4 - "Below Average" Institutions rated "Below Average" are experiencing financial difficulty. Some institutions may fall below federal capital requirements. High nonperforming loans often jeopardize capital levels. High overhead and interest expense,problematic loans, and repossessed loans severely impair profitability. Management needs to reorganize plans and policies to improve future outlook for these institutions. Although these institutions have speculative investment characteristics,timely payment of investments is currently being made. Rank 5 - "Poor" Institutions rated "Poor" have the highest probability of failure. Very poor and often negative capital ratios are a common characteristic for these institutions. High levels of delinquent, nonperforming, and repossessed loans have taken their toll on nearly all of the financial figures. Unless balance sheet improvements occur,these institutions will likely fail. Timely payment of investments is suspect. PMA FINANCIAL IIIIINC NETWORK AMERICAN NB OF TERRELL TERRELL, TEXAS INDIVIDUAL BANK RATING 2 ANALYST: EJ (see rating note,page 4) AT-A-GLANCE SUMMARY TOTAL ASSET ST7.F: Medium asset base that continues to grow steadily CAPITAL ADEQUACY: Core capital is slightly below peer averages,but is well above FDIC standards ASSET QUALITY: Continued improvement in asset quality PROFITABILITY: Healthy earnings INTEREST SPREAD: Above average net interest margin COLLATERALIZATION/INSURANCE OF DEPOSITS OVER$100,000: Recommended Dec 31 Dec 31 Dec 31 Dec 31 Dec 31 Mar 31 Period Ending 1991 1992 1993 1994 1995 1996 TOTAL ASSETS($Mil) 267 277 309 374 382 396 CORE CAPITAL 6.28% 7.37% 8.18% 7.15% 8.08% 7.99% NONPERFORMING ASSETS 1.70% 1.22% 0.81% 0.81% 0.48% 0.55% ROA 0.64% 1.64% 1.77% 2.89% 1.51% 1.55% INTEREST INCOME 9.03% 7.90% 6.89% 12.73% 7.35% 7.46% INTEREST EXPENSE 4.86% 3.14% 2.22% 3.94% 2.54% 2.60% SPREAD 4.17% 4.76% 4.67% 8.79% 4.81% 4.86% *All data in percent o f assets QUARTILE RANKINGS Peer Group Comparison 3 o as o' 12/91 I 12/92 12/93 12/94 12195 3/96 - r ® Core Capital MI Nonperforming Loans® ROA Graph signifies quartiles,e.g.,4=4th Quartile(76 to 100%)and is the Highest Quality CORE CAPITAL (As a% of Total Assets) 10.00% 9.50% 9.00% 8.50% 8.00% - 7.50% 7.00% 6.50% 6.00% 5.50% 5.00% 12/91 12/92 12/93 12/94 . 12/95 3/96 NONPERFORMING ASSETS (As a% of Total Assets) 1.80% 1.60% -47 1.40% \;e 1.20/o \ g _ k::: \ , \ _ ;re-1T rt 0.00% 12/91 12/92 12/93 12/94 12/95 3/96 AMERICAN NB OF TERRELL PROFITABILITY (As a% of Average Assets) 3.00% 2.75% 2.50% 2.25% 2.00% 1.75% NI .1.50% 1.25% 1.00% 0.75% 0.50% i 12/91 12/92 12/93 • 12/94 12/95 3/96 INTEREST RATE SPREAD (Interest Income minus Expenses/Assets) 8.00%-" 7.00%f 6.00%-" 5.00%-" 4.00% 3.00%-"" 1.00%--') 0.00% 12/91 12/92 12/93 12/94 12/95 3/96 AMERICAN NB OF TERRELL Rating Note: In determining the true health of an institution, consideration must be given to the strength of that institution's bank holding company, and not solely to the strength of that individual institution. A relatively weaker bank holding company can adversely affect an individual institution's health. Conversely, a sufficiently strong bank holding company can provide an additional source of strength to an individual institution. Specific to this case, American NB of Terrell($396 million in assets) is the one bank which comprises A.N.B. Holding Company ($398 million in assets), a bank holding company. American NB of Terrell qualifies for a PMA rating of 2 on its own merit. It should be noted that A.N.B. Holding Company is comparatively equal in strength to American NB of Terrell , therefore no rating adjustment is needed. Information contained in this report has been taken from sources which PMA believes to be reliable. Nonetheless, it cannot be guaranteed to its accuracy or completeness. The opinions expressed are those of PMA and are subject to change without notice. 1ml PMA FINANCIAL IINETWORK PMA REPORT DEFINITIONS TOTAL ASSETS (SIZE): The total assets listed on the balance sheet. Larger asset sized institutions are preferred over smaller institutions. CAPITAL ADEQUACY: The capital provided by stockholders and owners, which provides a cushion against default when problem loans occur on the balance sheet. ASSET QUALITY: The quality of the major assets of a bank, which are primarily loans to corporations and individuals. Loans are considered high quality when they are paid off on time and for the stipulated amount. PROFITABILITY: The measure of a bank's overall performance,primarily referring to net income. Profitability figures answer the question as to how much money the bank is making. INTEREST INCOME: Total income earned from interest-earning assets on the balance sheet. The largest source of interest income for banks is the interest earned on loans. INTEREST EXPENSE: The total expenditures related to interest-bearing liabilities. The largest source of interest expense for a bank is the interest paid on deposits. INTEREST SPREAD: Interest income minus interest expense, also referred to as net interest income. CORE CAPITAL: Equity capital minus goodwill and intangible assets, this is the common ratio referenced in regards to Capital Adequacy. NON-PERFORMING ASSETS: Total loans that are past due 90 days or more and non-accrual loans,this is the common ratio referenced in regards to Asset Quality. ROA (RETURN ON ASSETS): Income before extraordinary items divided by average assets,this is the common ratio referenced in regards to Profitability. PMA FINANCIAL (I" INECTWORK li II iiiii CM Agenda Communication for August 27 (11 1111 ,,,, ni A9 Aq 1996 Approval of a Resolution Creating an Ad Hoc Public Safety Committee Issue The purpose of this agenda item is to approve a resolution creating an Ad Hoc Committee on Public Safety to develop a recommendation regarding a Comprehensive Sprinkler System Ordinance for new construction. Background Several work sessions have been held with the City Council regarding the issue of adopting an ordinance requiring the installation of a sprinkler system in all new residential and commercial structures constructed on newly platted parcels. The ordinance would not apply to property currently platted. This ordinance would have a direct affect on current and future taxpayers, future home buyers, as well as developers, home builders and real estate and insurance agents. Therefore, the City Council desires to create an Ad Hoc Committee that is representative of the affected groups. The Committee would issue a non binding recommendation to the City Council. The recommendation would include the specific terms and conditions under which a sprinkler would be required and would be made on or before Friday, October 17, 1996. The attached Resolution contains specific information regarding how the Committee would function. Financial Considerations Appointees to the Committee will serve as volunteers and will receive no compensation. If the Committee desires to bring in individuals with special knowledge of relevant issues, the City will incur travel expenses. It would be anticipated that the cost of one person's air fare and hotel would not exceed five hundred dollars. Legal Considerations Article VIII, Section II, Wylie City Charter establishes the authority of the City Council to create other Boards and Commissions as it deems necessary to carry out the functions and obligations of the City. Recommendations N/A Attachments Resolution fly)j.t.e. („404.4 Prepared by Reviewed by Finance City Manager's Approval RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, COLLIN COUNTY, TEXAS, FOR THE CREATION OF AND APPOINTMENT TO THE AD HOC COMMITTEE ON PUBLIC SAFETY. WHEREAS, thirty-five percent (35%) of the City's Land Area is built out with development concentrated in a core area such that any new policies affecting residential and commercial development standards will have direct and significant impact on the city's future growth; and, WHEREAS, the opportunity exists for the City of Wylie to adopt a Comprehensive Sprinkler System Ordinance for new construction on land platted in the future for development; and, WHEREAS, the Sprinkler System Ordinance would directly affect different groups in the community, including current and future taxpayers, future home buyers, as well as developers, home builders, and real estate and insurance agents; and WHEREAS, the City Council desires to bring together a representative group of residents and community and business leaders to consider on its technical merits the issue of adopting a Comprehensive Sprinkler System for new construction. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, COLLIN COUNTY, TEXAS, THAT: The Wylie City Council Creates the Public Safety Ad Hoc Committee (PSC) under the following terms and conditions: SECTION 1: The PSC will be comprised of fourteen (14) members. Each City Council member will appoint two (2) representatives, with at least one (1) appointee a Wylie resident. SECTION 2: The PSC will issue a non-binding recommendation to the City Council on or before Friday, October 18, 1996. SECTION 3: The PSC will conduct its first meeting during the week of September 2 and will appoint a Chair and Vice-Chair. The PSC will dissolve after issuing its recommendation. All Open Meetings Law will apply. SECTION 4: The City Council may designate the City of Wylie staff to serve as a resource to the PSC. The PSC may request that other individuals from outside the City with special knowledge of relevant issue be brought before the PSC. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, COLLIN COUNTY, TEXAS, ON THIS THE DAY OF , 1996. APPROVED: Jim Swartz, Mayor ATTEST: Susan Shuler, City Secretary Wylie City Council #4 Iganda Communication for august 27, 1496 iiiiimmiaimemeimmiimmimmimiummiummiummilf Contract for the Operation of the Batting Cages at Community Park Issue Discuss and consider amendments to the Batting Cage Lease Agreement. Background During the August 13 City Council meeting, the Council was presented with the proposed Lease Agreement between the City of Wylie and Dale and Teresa Wigington, as recommended by the Park Board. Mr. Wigington appeared before the Council and expressed concern over two of the provisions in the Agreement. Specifically, with regard to Section 6, e) Operation of Facility, the Park Board recommended a 25% cap to any increase of prices for goods and services in any calendar year. Mr. Wigington requests that consideration be given to removing this cap or raising it. Please note that the Lease currently states that should the cost of operations increase substantially, the tenant has the option to appear before the Park Board and the City Council to request permission for a price increase. In addition, the Park Board recommended in Section 5, a) Rental Payments, that the rental for the premises shall be the greater of$240.00 or 12% of the gross receipts for the calendar month. Mr. Wigington requests that the $240.00 minimum either be removed completely, or not be applied until after he has had one year to establish the business. He has also requested that the Lease clarify that the rental payments are due only for the operating months. The City Council voted to send this item back to the Park Board so that the Council would have the benefit of the Board's review and recommendation on these issues. Financial Considerations The revenue generated by the Batting Cages is earmarked for the Community Park Fund. The Batting Cages have not been operated on a consistent basis in the past and it is therefore difficult to identify the financial impact that the business will have in terms of revenue for the Community Park Fund. Legal Considerations The City Council voted on June 11 to terminate the current Lease Agreement with Steve Packer. The 90 day notice for termination falls on September 9. Board/Commission Recommendation The Park Board will consider this item during their August 26 meeting. The Board's recommendations will be presented to the City Council at the August 27 Council meeting. Staff Recommendation N/A Attachment Proposed Lease Agreement Letter from Dale Wigington ')1\ (41/44PAA)- Prepa by Reviewed by F nance City Manager Approval LEASE AGREEMENT AGREEMENT, made and entered into this 27th day of August, 1996, by and between the City of Wylie, Texas, herein referred to as "City or Lessor" and Dale and Teresa Wigington, herein referred to as "Wigington or Tenant". WITNESSETH: WHEREAS, City, as part of its municipal function and park system, maintains an area known as Community Park (Park), on Thomas Drive, in the City of Wylie, which contains various baseball/softball fields, soccer field, play grounds, and other recreational facilities open to the public; and, WHEREAS, Tenant intends to operate a commercial batting cage and construct a commercial pitching cage facility (Facility) in the City of Wylie and desires to locate the same within the Park because of the proximity to said ball fields and other recreational facilities; and, WHEREAS, the City Council has determined that it would be to the advantage of the City and its citizens to lease a portion of the Park to Tenant for the limited purpose of construction, maintenance and operation of the Facility; NOW, THEREFORE in consideration of the above stated premises and the promises and conditions hereinafter set forth the parties do hereby as follows: 1. DEMISE AND USE OF PREMISES. The City hereby leases to Tenant the tract of real estate located in the Park, in the City of Wylie, Texas, more specifically described on Exhibit A which attached hereto and incorporated herein by reference, for the sole and exclusive purpose of construction, operation and maintenance of a batting cage and pitching cage facility. 2. TERM. The term of this lease shall commence on the execution hereof and remain in continuous effect thereafter, unless sooner terminated as herein provided, to the 27th day of August, 1999. 3. SUITABILITY OF PROPERTY. Parties acknowledge that there are currently improvements on the leased property and Tenant shall bear all responsibility, risk and cost of construction and maintenance of all improvements deemed necessary and City makes no representations as to the suitability or condition of the property for its intended use. 1 4. CONSTRUCTION OF IMPROVEMENTS. The construction of the improvements on the property shall be done in accordance with and subject to the following terms and conditions: a) The plans for the improvements shall be submitted to the City's Parks and Recreation Superintendent, and approved by the Parks and Recreation Advisory Board prior to commencement of actual construction. b) All construction shall be in full compliance with all City codes and regulations pertaining to construction and improvements, including without limitation, permitting and approval from the Building Inspector. c) During construction Tenant shall take such precautions as may be reasonably necessary to insure the construction area creates no danger to users of the Park. d) The construction shall be commenced as soon as possible and diligently pursued to completion within 90 days from the date of approval. e) All construction shall be performed in a good and workmanlike manner. f) The facility must be equipped with sufficient lighting for safe night-time operation. Lighting must be directed so as not to be a nuisance to surrounding residences. 5. RENTAL PAYMENTS. a) Tenant promises and agrees to pay to City, as rental for the premises, an amount derived from the gross receipts produced by the facility each calendar month, which shall be paid to City on or before the 15th day of the month following the month in which the receipts are generated, payable at the Wylie Municipal Complex, 2000 N. Hwy 78, Wylie, Texas, 75098. The rental for the premises shall be the greater of $240 or 12% of the gross receipts for each calendar month. For the purposes of this lease the term gross receipts means the monies received and generated by and from the use and operation of the facility, including the sale of drinks and snacks, without any offset or reduction whatsoever. b) Tenant shall submit to City, at the time of each monthly rental payment, a written statement in a format to be provided by the City, of gross receipts for the month for which the rent is being paid, which shall be certified as thus, accurate and complete by Tenant personally. c) Tenant shall keep and maintain accurate books and records in accordance with accepted accounting practices on all gross receipts under this Lease and retain such books and records for a period of not less than three years after the close of the calendar year to which they pertain. Such records shall be available for inspection, within forty-eight hours from request of City and copies or audits thereof may be made at the expense of the City. 6. OPERATION OF FACILITY. a) Tenant shall not use, or permit the use of, the facility for anything other than the above stated purpose, provided however, such purpose shall include the right to engage in retail sales of items related to the stated purpose (e.g. 2 baseballs, softballs, caps, batting gloves, etc.). The sale of food, snack and drink items may be conducted during the hours of operation of the facility and in accordance with the appropriate Health Codes. b) Tenant shall provide the necessary management and labor, and continuously maintain the premises, including all operating equipment, grounds, custodial services and any and all other related services necessary to maintain the premises in good, safe, and sanitary condition and repair during the term of this contract. Conditions creating safety hazards shall be immediately secured by barricades and/or other safety devices and repaired within 48 hours. All maintenance shall be at the sole expense of Tenant and will be subject to inspection by the City to insure a continuing quality of maintenance and appearance commensurate with that of Park and the health and safety standards established by City. In the event that said premises shall not be so kept, City may enter said premises and remedy said condition and in such event Tenant shall repay City for all reasonable costs incurred in achieving such remedy. c) Tenant shall provide suitable and necessary personnel for the proper operation of the facility and shall maintain the following minimum hours of operation during the period of March 1 through October 31: Monday through Friday 5:00 pm to 8:00 pm Saturday 10:00 am to 6:00 pm Sunday 1:00 pm to 6:00 pm The hours may be changed commensurate with seasonal demand. The current hours of operation shall be posted in a location on the premises which is clearly accessible and visible to the general public. Provided however, the facility need not be operated in the event weather or rain makes operation impractical or inclement weather has made operation unsound or caused damage to the facility. The City shall provide Tenant sufficient notice of any special events scheduled at the Park, i.e., weekend or night tournaments, to allow Tenant to schedule hours of operation and personnel to coincide with the event. d) Not less than five pitching machines shall be operational and available for use during the hours of operation, except for temporary circumstances, not to exceed 72 hours, when a machine is being repaired. e) The prices of all goods and services offered by Tenant shall be subject to approval of the Superintendent. The initial rates are hereby set and cannot increase more than 25% in any calendar year. Should the cost of operation increase substantially, Tenant has the right to appear before the Parks and Recreation Advisory Board and the City Council to request permission for a price increase. All such rates to be posted at a conspicuous and accessible place on the premises. 3 7. HABIT,ITY AND INST IRANCF. a)Tenant agrees to fully indemnify and hold City harmless against all claims, losses, expenses, liens or costs, specifically including without limitation damages for personal injury, death, property damages and attorney's fees, that may be made against the City by reason of the development, operation, use, occupancy or condition of the facility. Said duty shall apply regardless of whether such claim may be covered, partially covered, or not covered by the liability insurance as herein required. The duty to indemnify shall apply in all instances including negligence or willful act or Tenant either solely or in conjunction with others, including City, but not when the claim is based upon the sole negligence or willful act of City. b) In partial fulfillment, but not in liquidation of, the requirement of the preceding paragraph Tenant shall maintain and bear cost of continuous liability coverage under a comprehensive general liability insurance policy, which shall insure against bodily injury (including death), and property damage. Such coverage shall meet the following minimum requirements: I) be with a company or companies qualified to do business and write insurance in the State of Texas; and ii) name the City as an additional insured; and iii) provide for coverage of $1,000,000.00 for bodily injury, including death and $50,000.00 for property damages, per occurrence; and iv) bear an endorsement providing at least 30 days written notice be given to City prior to cancellation; and 8. IMPROVEMENTS AND PERSONAL PROPERTY. All of the improvements made remain the property of the Lessee during the term of this Lease and the risk of loss for park improvements, as well as any other personal property on the premises. Upon termination of the Lease all improvements shall be removed from the premises and the same restored to its original condition within 90 days at Tenant's expense. Provided however, that City shall, at its option shall have the right to purchase said improvements for fair market value as determined by three disinterested appraisers (one appointed by City, one appointed by Tenant, and the third appointed by the first two). 9. UTILITIES. The cost of bringing all necessary utility services to the premises shall be borne by Tenant and all such utilities shall be provided through underground access. Tenant shall also timely pay and be responsible for all utility service provided to the facility during the term of the lease. 10. PROHIBITION AGAINST LIENS. Tenant shall not cause or allow any liens to attach to the premises, or the facility as a result of any of his actions; provided however 4 any secured loan on the personal property and equipment shall not be considered a lien in violation of this section. 11. TERMINATION. a) Prior to August 27th, 1999 this lease may be terminated only for good cause; thereafter the same may be terminated by either party, without penalty or cause, upon and after the party requesting the termination giving the other party 90 days written notice of termination. b) For the purpose of this lease "good cause" shall be deemed to be any of the following, separately, or in any combination, which shall not be remedied within 30 days of the City's giving written notice of the existence of the same: i) Failure to maintain insurance coverage as herein required; ii) Failure to pay any and all taxes that may be due as a result of the use or operation of the premises and facility; iii) Failure to maintain or operate the premises and facility as herein required; iv) Failure to timely pay all rental hereunder due; v) Failure to remain open for the hours herein established; vi) Failure to cure any lien which has attached to the premises or facility. 12. RENEWAI Tenant shall have the right to renew this Lease for an additional three year term following the initial three year term. Which said option shall be exercised if at all by Tenant giving written notice of intent to exercise prior to July 1, 1999. Provided however, that such right to renewal shall not be available if at anytime within the preceding six months Tenant has been given notice from City for any of the failures listed in paragraph 11 (b) which were not corrected within the specified 30 day period. 13. ASSIGNMENT. Tenant shall not sell, transfer, or otherwise assign this lease, nor his interest herein, nor sublet the premises, or any part thereof, without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Parties acknowledge that Tenant may be forming a business entity for conducting operation of the facilities and in the event such entity is formed and such entity is wholly owned and controlled by Tenant, this Lease may be assigned, on a one time basis, to such entity with City's written consent. Such assignment shall in no way relieve the personal liability of Tenant for each and every duty herein imposed. 14. RELATIONSHIP BETWEEN PARTIES. Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party, to create the relationship of principal and agent or of partnership or of joint venture or of any other association between parties. It being the expressed understanding and agreement of the parties hereto that no provision herein contained nor any act or acts of the parties shall be deemed to 5 create any relationship between the parties other than the relationship of Lessor and Lessee as those terms are understood herein. 15. WAIVER. City or Tenant shall have the right to waive any requirement contained in this lease which is intended for the benefit of the waiving party, provided that such waiver shall be effective only if reduced to writing and delivered by the waiving party to the other. 16. AMENDMENTS. No changes to the terms of this agreement shall be binding upon either party unless such change is reduced to writing and executed by both parties with the same formality as this original agreement. 17. COMPLETE AGREEMENT. This document contains the entire agreement between the parties with respect to the premises and the facility and provisions not herein contained, or provided for, are not part of this agreement. Neither party has made any agreements, covenants, warranties or representation of any kind or character, express or implied, oral or written, with respect to any of the areas covered by this lease, specifically including without limitation, warranties of habitability, merchantability, suitability for intended use, workmanship, income to be derived from the facility, expenses to be incurred in connection with the premises and facility or with respect to any other conditions, facts or requirements relating or pertaining to the Premises and facility. 18. BINDING EFFECT. This agreement and all of the terms and provisions hereof shall be binding upon and enure to the benefit of the respective parties hereto their heirs, successors, and assigns. 19. SEVERABILITY. If any term or provision of this Lease is held to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms or provisions of this Lease shall not be effected thereby. 20. GOVERNING LAW. This agreement and all the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue for any proceeding concerning this lease shall be in Collin County, Texas. 21. MISCELLANEOIJS. a) The paragraph headings herein contained are for convenience purposes only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. b) As used herein, words of any gender shall be held and construed to include any 6 other gender, and the words in the singular shall be held and construed to include the plural unless the context otherwise requires. c) This agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. d) No person, firm, corporation, or group shall be denied use of the premises because of race, sex, color, religion, national origin or being physically handicapped and impartiality shall be observed in providing access to and use of the facility. IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first written above. LESSOR LESSEE CITY OF WYLIE, TEXAS Dale Wigington Teresa Wigington 7 Batting Cage Rates August, 1996 6 Balls $0.25 15 minutes $6.00 30 minutes $11 .00 60 minutes $20.00 Soft Drinks $0.75 Candy $0.75 8 Mindy, Here are the rates I propose for the contract. 6 balls-- 0.25 15 minutes -- 6.00 30 minutes-- 11.00 60 minutes-- 20.00 Soft drinks and candy will be sold for 0.75 including tax. I would like an exemption from the 25%raise cap to allow for an increase of 0.25 cents ( 33%)for snack items. Maybe the lease could read that prices could not increase more than the larger of 25% or 25 cents. I am concerned about the $240.00 minimum monthly payment to the city,because any month in which revenue is less than $2000.00 the percentage would be more than 12%. I plan to ask the council to remove this minimum or at least give me 12 months in which to build up the business before the minimum kicks in. If I can't get rid of the minimum we need to make sure that the minimum is payable for operating months only, the current proposed lease doesn't make this clear. I'm sorry I pushed this down to the wire, but things have been kind of hectic the last few weeks. Thanks for all your help.