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HomeMy WebLinkAbout2002 11-04 CCP Special Session 3 1 CITY COUNCIL SPECIAL SESSION City of Brooklyn Center November 4, 2002 AGENDA 1. Resolution Authorizing Execution of Agreement Between the City of Brooklyn Center and Independent School District #286 for an Exchange of Land Involving Grandview Park to Allow for the Construction of a New Elementary School -Requested Council Action: - Motion to adopt resolution. 2. Adjournment s v i City of Brooklyn Center A Millennium Community To: Mayor Kragness and Council Members Lasman, Nelson, Peppe, and Ricker From: Michael J. McCaule City Manager Date: November 1, 2002 Re: Agreement with District 286 The resolution on the agenda for Monday would approve an agreement for the exchange of land and the construction of replacement park facilities by the school district. Mr. Glasoe has been meeting with Mr. Anderson regarding the amount of money necessary to reimburse the school district for improvements that are beyond current facilities at Grandview Park. He has revised his estimate to $95,555. That revision reflects better information regarding the fence costs and the warning track (the warning track was not included in his previous estimates and is an item not present at the current field). The agreement will provide for: 1. Exchange of property to allow for the construction of a new school building on existing Grandview Park land. The City will be without full facilities until November of 2004. 2. The District is required to place $500,000 into an escrow account to insure construction of the replacement park facilities. 3. Payment by the City to the School District of $95,555 for improvements to the new park area that are above and beyond replacement of existing facilities (irrigation, fencing, paving courts & rink, demolition of existing park shelter building, etc.) 4. Payment by the City to the School District of $200,000 in return for a 20 year use agreement of School facilities by the City. 5. Payment of the State grant of $100,000 to the School District as part of the use of School facilities, but only if the City receives the grant funds. 6. Closing on the exchange of property notwithstanding a title gap in the property being conveyed by the School District to the City. The School District is required to promptly take all necessary actions to clear the title gap that has a section of land in the middle of the current school site out of the title. The escrow agreement covers this requirement as well as replacement of park facilities. Based on those terms, the agreement reflects the premise under which the City Council adopted a resolution of intent last year to proceed with negotiations to exchange property and would be recommended for your approval. The School District would be authorized under the resolution to commence its construction work prior to closing after the 6301 Shingle Creek Parkway Recreation and Community Center Phone & TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City Hall & TDD Number (763) 569 -3300 FAX (763) 569 -3434 FAX (763) 569 -3494 www.cityolbrooklyncenter.org 1 I agreements have been fully executed and the escrow amounts deposited. The authorization to proceed would of course be to the extent that building and other permits have been properly issued. , Cost Sharing Itemization- Earle Brown School /Grandview Park Pave basketball court, hockey rink, trail @ Humboldt 26,560 square feet 4" class 5 base, 2" bituminous (per estimate from Engineering.) $19,040 Irrigation system Per bid $27,285 Building demolition (est. per past experience) $10,000 Fencing 400 ft @ $11.10 /lf 500 ft @ $14.70/lf (per Town & Country fence) $11,790 Concrete under bleachers (Per estimate from #286) $ 1,900 Parking (60 Ave.) 6" class 5 base, 2.5" bituminous B -618 curb @7.50 /LF Sawcut bituminous to match $3.00 /LF (per estimate from engineering.) $19,040 Warning track $6,500 Total $95,555 Earthwork at fields ?? 7 I BROOKLYN CENTER INDEPENDENT Discover SCHOOL DISTRICT NO. 286 the Center 6500 Humboldt Avenue North Brooklyn Center, MN 55430 -1897 Phone: (763) 561 -2120 "AN EQUAL OPPORTUNITY EMPLOYER" FAX: (763) 560 -2647 ANTOINETTE JOHNS, Ed. D. Superintendent November 1, 2002 SCHOOL BOARD Michael McCauley, City Manager Greg Thielsen City of Brooklyn Center Chair 6301 Shingle Creek Parkway Cheryl Jechorek Brooklyn Center, MN 55430 Vice -Chair Tom Shinnick Dear Mike McCauley, Treasurer Jo Goddard Upon reviewing the October 30, 2002 revised copy of the agreement between the City of Brooklyn Center and Brooklyn Center ISD Daniel Krekelberg #286 regarding Grandview Park and School District land exchange, and the Director Joint Use Agreement Steve and I believe these reflect our discussions. It is Arneuwell Benifield our understanding the city will contribute $95,555 to the city park project per Director their direct costs and per section 4.6 of part IV of the land exchange agreement. The School District is in the process of establishing an escrow account per the additional agreement as attached on October 30th, 2002. Steve Anderson and I will submit the three agreement components to the ISD #286 School Board on Monday, November 4th, 2002, 6:30 p.m. with a recommendation to approve the agreements. We will also attend the City Council meeting on Monday, November 4th, 2002 at 5:00 p.m. It is our expectation that having met the requirements of the agreement, all of the necessary permits for District #286 will be released on Tuesday, November 5th 2002. Sincerely, Antoinette Johns Superintendent of Schools Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BETWEEN THE CITY OF BROOKLYN CENTER AND INDEPENDENT SCHOOL DISTRICT #286 FOR AN EXCHANGE OF LAND INVOLVING GRANDVIEW PARK TO ALLOW FOR THE CONSTRUCTION OF A NEW ELEMENTARY SCHOOL WHEREAS, Independent School District #286 wishes to construct a new elementary school to replace the present Earle Brown Elementary School; and WHEREAS, the City would trade a substantial portion of land at the current Grandview Park with Independent School District #286 for land currently used as Earle Brown Elementary School to allow for the construction of a new elementary school building; and WHEREAS, attached hereto and incorporated herein by reference as Exhibit "A" is a proposed agreement between the City of Brooklyn Center and Independent School District #286 for an exchange of land and a redevelopment of park facilities by Independent School District #286; and WHEREAS, attached hereto and incorporated herein by reference as Exhibit `B" is a proposed Escrow Agreement to implement requirements of the obligations set forth in Exhibit "A" to this resolution; and WHEREAS, the City Council finds that it is in the best interests of the City to enter into the agreements set forth in Exhibits "A" and `B" and the Joint Use Agreement attached to Exhibit "A" to the resolution as Exhibit "7" to Exhibit "A ". NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the Mayor and City Manager are hereby authorized to execute on behalf of the City of Brooklyn Center the agreements attached to this resolution as Exhibits "A" and `B ", together with the Joint Use Agreement set forth as Exhibit "7" to Exhibit A and such other documents as may be necessary to implement the requirements of the agreements, including such technical modifications as may be necessary and appropriate as approved by the City Attorney and City Manager, AND BE IT FURTHER RESOLVED that District #286 may have access to the areas of Grandview Park to commence construction activities upon execution of the Agreements set forth in Exhibits "A" and `B" to this resolution and posting of the required escrow amounts even though such access is prior to the closing on the transfer of property. f Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. EXHIBIT B ESCROW AGREEMENT This ESCROW AGREEMENT entered into this _ day of , 2002 by and between the City of Brooklyn Center, a Minnesota municipal corporation ( "City "), Independent School District No. 286, a Minnesota municipal corporation ( "ISD 286 "), and ( "Escrow Agent "). RECITALS: WHEREAS, the City and ISD 286 have entered into an Agreement, dated , 2002, (the "Agreement ") regarding a land transfer and construction of school and park facilities in Brooklyn Center; and WHEREAS, Section 4.4 of the Agreement requires that ISD 286 deposit in escrow with Escrow Agent the sum of Five Hundred Thousand Dollars ($500,000) and that such funds are to be held in escrow and to be made available to pay the costs of replacement park facilities as described in the Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the parties hereto agree as follows: 1. Deposit of Escrow Funds,. Contemporaneously with the execution of this Escrow Agreement, ISD 286 shall deposit the sum of Five Hundred Thousand Dollars ($500,000) with the Escrow Agent. Said deposit, together with accrued earnings, shall be held and invested by Escrow Agent in investments that are lawful investments for ISD 286 in accordance with the directions of ISD 286. All funds in the Escrow Account shall be held under the tax ID number of ISD 286. 2. Disbursements From Escrow Account. A. Disbursement to ISD 286. Upon completion of all work of construction of the new park improvements and clearing of title to that part of the Current School Property that has been conveyed to the City in accordance with Section 2.5.1 of the Agreement, as CLL- 222654v 1 BR291 -229 1 ' EXHIBIT B certified by the Superintendent and approved by the City Manager, all funds remaining in the account together with accrued interest shall be disbursed to ISD 286. B. Disbursements to City. At any time after November 15, 2004 the Escrow Agent shall disburse such funds from the Escrow Account, together with accrued interest, to the City upon the written certification by the .City Manager that ISD 286 is in default of its obligation to complete the replacement park facilities or to clear title to that part of the Current School Property that has been conveyed to the City in accordance with Section 2.5.1 of the Agreement as are certified by the City Manager as necessary to reimburse the City for completing the replacement park facilities and/or clearing title. Any funds remaining in excess of those required to reimburse the City for its costs of completing the replacement of the park facilities and clearing title shall be disbursed to ISD 286 upon certification by the City Manager that all of the City's costs have been reimbursed. C. Closing and Termination of Account. Upon disbursement of all remaining funds in the Escrow Account, this Escrow Agreement shall terminate. 3. Dispute. In case of any dispute involving the Escrow Account or the rights of any person or corporation hereunder, the costs, expenses and attorney's fees of the Escrow Agent may be paid or retained by the Escrow Agent out of the Escrow Account. In the event that any such litigation shall occur, the Escrow Agent may continue to hold the Escrow Account pending resolution of such dispute, or, in the alternative, may commence an action in interpleader in the District Court of Hennepin County for the sole purpose of determining who is entitled to the Escrow Account. All parties hereto agree to indemnify and hold harmless the Escrow Agent or its officers, agents and employees from any and all actions undertaken by Escrow Agent, its officers, agents or employees in good faith in furtherance of Escrow Agent's duties and obligations hereunder. The Escrow Agent shall have no duties except those specifically set forth herein. The Escrow Agent CLL- 222654v1 BR291 -229 2 l EXHIBIT B may conclusively rely upon and shall be protected in acting upon any statement, certificate, notice, request, consent, order or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall have no duty or liability to verify any such document and its sole responsibility shall be to act only as expressly set forth in this Escrow Agreement. The Escrow Agent shall be under no obligation to institute or defend any action, suit or proceeding in connection with this Escrow Agreement unless first indemnified to its satisfaction. The Escrow Agent may consult counsel in respect of any question arising under the - Escrow Agreement, and the Escrow Agent shall not be liable for any action taken or omitted in good faith upon advice of such counsel. 4. Notices Any notice, demand request or other communication that may or shall be given or served by any party hereto to or on another party hereto shall be deemed to have been given or served on the date the same is deposited with a nationally recognized overnight courier or in the United States mail, registered or certified, postage prepaid, in either case addressed as follows: If to the City: City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center MN 55430 -2113 If to the ISD 286: Independent School District No. 286 6500 Humboldt Avenue North Brooklyn Center MN 55430 If to the Escrow Agent: or to such other address as the respective parties may from time to time designate by notice given ten (10) days prior to the effective date of such change of address, in the manner above provided. 5. Binding Agreement and Substitution of Escrow Agent. The terms and conditions of CLL- 222654v 1 BR291 -229 3 ' EXHIBIT B this Escrow Agreement shall be binding upon the assigns, creditors, transferees, or successors in interest, whether by operation of law or otherwise, of the parties hereto. If, for any reason, the Escrow Agent named herein should be unable or unwilling to continue as such Escrow Agent, then the other parties to this Escrow Agreement may substitute another Escrow Agent. IN WITNESS WHEREOF, the above -named parties executed the foregoing instrument on the day and year first above written. CITY OF BROOKLYN CENTER By Myrna Kragness, Mayor By Michael J. McCauley, City Manager INDEPENDENT SCHOOL DISTRICT NO. 286 By Its ESCROW AGENT By Its CLL- 222654v 1 BR291 -229 4 EXHIBIT A DRAFT OF: 10 -30 -02 AGREEMENT This Agreement is made as of the 6th day of November, 2002 by and between the City of Brooklyn Center ( "City ") and Independent School District No. 286 ( "ISD 286 "), both municipal . corporations of the State of Minnesota, pursuant' to authority of Minnesota Statutes, Section 471.59. I. BACKGROUND 1.1. The City owns real property legally described on Exhibit One, which is made a part hereof, and which it operates and maintains as Grandview Park ( "Current City Property "). 1.2. ISD 286 owns real property legally described on Exhibit Two, which is made a part hereof, and which it operates and maintains as Earle Brown Elementary School ( "Current School Property "). 1.3. ISD 286 wishes to reconstruct its school in a new location on a part of the Current City Property. 1.4. The City wishes to convey a portion of the Current City Property to ISD 286 for such school reconstruction, such property being legally described on Exhibit Three, which is made a part hereof ( "New School Site ") in consideration of conveyance of the Current School Property to the City and such other consideration as is described herein. 1.5. The parties wish to act in cooperation to construct, maintain and operate certain park and recreation, school, and joint use facilities, generally shown on the overall site development plan attached as Exhibit Four, which is made a part hereof. - 1.6. The City has tentatively secured certain grant funds from the Department of Children, Families and Learning in the amount of $100,000, which, if authorized by the CLL- 217231 v3-4 1 BR291 -4 EXHIBIT A Department of Children, Families and Learning, ewill be applied to construction of facilities described herein, together with $200,000 of City funds. The Citv shall use its best efforts to secure the CFL grant funds. 1.7. ISD 286 has been authorized by a referendum of the voters of the District to issue bonds to finance construction of the facilities described herein. 1.8. The parties each agree to provide such additional funds as are needed to fulfill their respective obligations hereunder. II. PLATTING, GOVERNMENTAL APPROVALS AND LAND TRANSFER 2.1. ISD 286, at its expense, will survey the Current City Property and the Current School Property (sometimes hereinafter referred to collectively as the "Subject Property ") and secure approval of the replatting of the Subject Property into the New School Site and the remainder of the Subject Property ( "New Park Property "). 2.2. The City will cooperate as necessary to effect such subdivision and platting approval. However, ISD 286 understands and acknowledges that the City must consider approval of such subdivision and platting in its governmental capacity and is not, and cannot, hereby obligate itself to approve such subdivision and platting but will give full and fair consideration, following a public hearing, of all information bearing on the effect of such subdivision and platting on the public health, safety and welfare. 2.3. If the City Council declines to approve a subdivision and platting of the Subject Property that is satisfactory to both parties, either party may terminate this Agreement by giving written notice to the other within 30 days of the final decision by the City Council on such application, and neither party will have any further obligation to the other under this Agreement. ISD 286 will submit the land transfers proposed in the Agreement to the Brooklyn Center Planning Commission in accordance with Minnesota Statutes, Section 462.356, Subd. 2 CLL- 217231 v3- BR291 -4 2 EXHIBIT A 2.4. All governmental approvals and permits required for development of the Subject Property and improvements described herein shall be secured by ISD 286 at its expense. All storm water retention for flood control and water quality purposes required by the Shingle Creek Watershed Management Commission shall be constructed on the New School Site and maintained by ISD 286 at its expense. 2.5. Transfer of Title. 2.5.1. Within 30 days of execution of this Agreement, the City will provide to ISD 286 any available registered property abstracts or abstracts of title for the Current City Property, which ISD 286 will update at its own expense, and ISD 286 will provide to the City a current registered property abstract or abstract of title for the Current School Property. Each party will have 30 days to examine title and secure a commitment for title insurance covering the property it will receive. Transferors will have until the closing date to make title marketable. If title to either parcel being ransferred cannot be made marketable this Agreement ma be ter g g y urinated by the transferee and neither party will have any liability to the other. ISD 286 will pay, at closing, the City's cost of securing title insurance for the Current School Property. ISD 286 discloses and the City acknowledges that a small gap exists in the record title of IDS 286 to a part of the Current School Property that will be conveyed to the City. The City will accept transfer of title at closing with the identified izan in the title relatinL to a strin in the middle of the New Park Pronertv: however, ISD 286 will promptly take such steps as are necessary to clear title, using the power of eminent domain if necessary, at its own expense. 2.5.2.' ISD 286 will convey to the City title to the New Park Property. The City will convey to ISD 286 title to the New Park Property, reserving an easement for trail and sidewalk purposes over the property described in Exhibit Eight. CLL- 217231v3 - 3 BR291-4 EXHIBIT A 2.5.3. Conveyance will be by quit claim deed conveying marketable title subject only to the following exceptions: a) building and zoning laws and ordinances, and state and federal regulations; b) reservation of minerals or mineral rights to the State of Minnesota; c) public utility and drainage easements of record that do not interfere with the intended use of the property by the transferee; and d) existing interests of the transferee. 2.5.4. Each transferee will pay all special assessments against the property being transferred that are levied as of the date of closing. 2.5.5. Closing on the transfer of title will occur on or before December 4, 2002 at Brooklyn Center City Hall unless otherwise mutually agreed by both parties. 2.5.6. Each party will deliver at closing, in addition to a quit claim deed: a) a standard form of affidavit of seller; b) owner's duplicate of title or abstract of title; and c) such other documents as may be reasonably required by transferees' examiner or title insurance company. 2.5.7. Each party represents to the other that the property being transferred is exempt from ad valorem real estate taxes. 2.5.8. Each party and its agents shall have the right to enter upon the property that is to be transferred to it for the purpose of inspecting the property and conducting such environmental examinations and tests as the transferee deems necessary. Each transferee agrees to indemnify the transferor against any liens, claims, losses or damages occasioned by the transferee's exercise of its rights to enter and work upon the property. This Agreement is contingent on the results of such inspection and testing and either party may terminate this Agreement if, upon such examination and testing, it determines in its sole discretion the property to be transferred to it is not suitable for its intended purpose. Notice of such termination may be given any time prior to November 12. 2002, after which this contingency is void. CLL- 217231v3 -4 4 BR291 -4 EXHIBIT A 2.5.9. Each property to be transferred will be transferred "as is" as of the date of closing, and neither party makes any representations to the other of the condition, suitability or fitness for purpose of the property being transferred other than those contained in this Agreement. 2.5.10. ISD 286 will be responsible for the following costs: recording fees and conservation fees for all instruments required to establish marketable title for both properties, recording fees, deed transfer fees and conservation fees required to be paid in connection with all the quit claim deeds, and the cost of the title commitment and any title insurance premium. Each party will be responsible for its own attorneys' fees and costs. 2.5.11. From and after the time of delivery of deeds on the date of closing, ownership of the transferred parcels will be transferred. However, occupancy and use of the transferred properties will be subject to the following: 2.5.11.1. ISD #286 may continue -to operate current school propertv as a school until a certificate -of _occunancv is issued for the new school facilitv. and the new school is occupied. or until August 1. 2004, whichever is first. III. RAZING AND REMOVAL OF PARK FACILITIES 3.1. ISD 286 will raze and remove all park equipment, improvements and related facilities from the Current City Property at its own expense (except as provided in Section 4.6). according to the Exhibit Six plans and spe cifications. 3.2. ISD 286 will undertake such activities as owner of the facilities and property on the New School Site and the City will have no responsibility therefor. CLL- 217231v3 - BR291 -4 5 EXHIBIT A IV. RAZING AND REMOVAL OF SCHOOL AND CONSTRUCTION OF IMPROVEMENTS ON NEW PARK PROPERTY 4.1. Subject to force majeure, or events reasonably beyond ISD 286's control, ISD 286 will raze and remove all buildings, structures and improvements on the New Park Property and reconstruct replacement park facilities commencing no later than August 1. 2004 and completing such work no later thanNovember 15. 2004. all in accordance with plans and specifications attached as Exhibit Six, which is made a part hereof. 4.2. All warranties provided for in the plans and specifications shall be in a form that is assignable to the City. In addition, ISD 286 will warrant plants and sod for two years from planting, materials and workmanship for two years from completion and acceptance by the City, and will restore the grade, replant ground cover and reconstruct improvements in the event of any settling, slumping or subsidence of soils from design grades and grade specifications that occurs within 4-52 years of completion and acceptance by the City; . 4.3. In awarding contracts for the work of their project, ISD 286 will require general contractors to provide the following insurance and name the City and ISD 286 as additional insureds: 4.4. Prior to closing the transfer of real estate described in Part II, ISD 286 will deposit the sum of Five Hundred Thousand Dollars ($500,000) into an interest- bearing_escrow account with an agent and under an escrow agreement satisfactory to both parties. Funds held in escrow shall only be used to pay the costs of replacement park facilities in accordance with plans and specifications referred to in Section 4.1 should ISD 286 fail to complete the improvements according to Section 4.1. Funds remaining in the fund after completion of all facilities referred to in Section 4.1, together with accrued interest will be returned to ISD 286; and ISD 286 will provide such funds, in addition to funds escrowed pursuant to this Section, as are necessary to complete such facilities. CLL- 217231 v �l BR291 -4 6 EXHIBIT A 4.5. In performing its obligations under Section 4.1., ISD 286 will act as an independent contractor and not as an agent, partner or joint venture participant with the City and will defend, indemnify and hold harmless the City, its officers, employees and agents from all claims, demands, damages or actions of any kind whatsoever arising out of the performance by ISD 286 of its obligations under Section 4.1 and will reimburse the City for any attorneys fees reasonably incurred in connection with any such claims. 4.6. Upon completion and acceptance of the replacement park facilities on the New Park Site, the City will pay ISD 286 the sum of Ninety -Five Thousand Five Hundred Fiftv -Five Dollars ($95,555). This navment is in addition to that described in Section 1.6 hereof. 4.7. ISD 286 will not award .a contract for the work described in Section 4.1. without prior notice to the City and the City will have the opportunity to provide input to ISD 286. No chanae orders for the aradina. landscanine or imnrove_ments on_t_he New Park Pronertv will be made without-the prior written annroval of the Citv Manager. V. CONSTRUCTION OF NEW SCHOOL 5.1. ISD 286 will construct and maintain on the New School Site an elementary school. Such construction shall be at the expense of ISD 286 except as provided in Section 5.2. 5.2. The City will pay ISD 286 the sum of $200,000, as referenced in Section 1.6, to assist in construction of those parts of the new school that are subject to the joint use agreement referred to in Article VI. Payment will be made prior to December 31, 2002_ If the City is successful in securing the grant funds described in Section 1.6, such funds shall also be transferred to ISD 286 upon receipt. ISD 286 acknowledges receipt of a copy of the GENERAL FUND GRANT AGREEMENT END GRANT for the GRANDVIEW PARK YOUTH ACTIVITIES CENTER YOUTH ENRICHMENT PROJECT by and between the City and the Commission of Children, Families and Learning - (the "Grant Agreement "). ISD 286 will cooperate with the City in fulfilling all of the City's obligations under the Grant Agreement. In the event the City is required to return grant funds to the Department of Children, Families and Learning due to any act, error or CLL- 217231v3 -4 BR291 -4 EXHIBIT A omission of ISD 286, such funds will promptly be reimbursed by ISD 286 to the City. In the event the City is required to return grant funds due on any act, error or omission of the City, no reimbursement by ISD 286 shall be required. VI. JOINT USE OF FACILITIES 6.1. Certain parts of the school constructed on the New School Site will be subject to a joint use agreement, attached as Exhibit Seven and made a part hereof. VII. MISCELLANEOUS PROVISIONS 7.1. Indemnification and no waiver. ISD 286 agrees to indemnify the City, its officers, agents, and employees, from any and all claims, demands, or actions for injury or damages arising out of the acts, errors, or omissions of ISD 286, its officers, agents, or employees. The City agrees to indemnify ISD 286, its officers, agents, and employees, from any and all claims, demands, or actions for injury or damages arising out of the acts, errors, or omissions of the City, its officers, agents, or employees. Nothing herein shall be deemed a waiver by either party of the limitations on liability set forth in Minnesota Statutes, Chapter 466. 7.2. Entire agreement. This agreement constitutes the entire agreement between the parties and no other agreement prior to this agreement or contemporaneous herewith shall be effective except as expressly set forth or incorporated herein. 7.3. Amendments to be in writing. Any amendment to this agreement shall not be effective unless it shall be set forth in writing and executed by authorized representatives of both parties. 7.4. Termination. This agreement shall continue in effect until terminated in accordance with its terms or upon completion by each party of all of its obligations hereunder. CLL- 217231 v3- BR291 -4 8 EXHIBIT A 7.5. Notices. Any notice, demand, request or other communication that may or shall be given or served by the parties shall be deemed to have been given or served on the date the same is deposited in the United States mail, registered or certified, postage prepaid, and addressed as follows: If to ISD 286: with a copy to If to City: City Manager, City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Park MN 5 543 0-2113 7.6. Mediation. In the event of a dispute as to interpretation or administration of this agreement, an attempt will be made to negotiate the dispute in a meeting between the City Manager of the City and the Superintendent of Schools of ISD 286. In the event these representatives are unable to resolve the dispute, the parties will make at least one attempt to resolve the dispute through mediation through the use of a neutral mediator who shall be selected jointly by the parties. In the event the parties are unable to agree on a neutral mediator, the Chief Judge of District Court of Hennepin County will be requested to select a mediator. The parties will meet at least once in mediation, and the costs of mediation shall be shared equally between the parties. In the event mediation is CLL- 217231v3 - 9 BR291 -4 I EXHIBIT A unsuccessful, either party may pursue its legal or equitable remedies by action in the District Court of Hennepin County, Minnesota. 7.7. It is recognized by the parties that the development of the new City park has been integrated into design of the new school site. Recognizing this fact, the City agrees that a use restriction will be placed on the title to the new Park property limiting its use, for a period of 20 years, to park purposes. Similarly, ISD 286 agrees that a use restriction will be placed on the title to the New School Site restricting its use to a public school operated by an independent school district. CLL- 217231v3 --4 l 0 BR291 -4 EXHIBIT A IN WITNESS WHEREOF, the parties by their authorized representatives have hereunto set their hands as of the date and year first above written. INDEPENDENT SCHOOL DISTRICT CITY OF BROOKLYN CENTER NO.-286 By By Its Its Mayor And By And By Its Its City Manager CLL- 217231v3 -4 BR291 -4 - 11 EXHIBIT A EXHIBIT ONE EXHIBIT A PROPERTY DATA SYSTEM PROPERTY ID LEGAL DESCRIPTIONS INQUIRY CURR 304 NEXT. _ 02- 118 -21 -11 -0004 LOT: 63 BLOCK: AUDITOR'S SUBDIVISION NO. 218 HENNEPIN COUNTY, MINN SEQN D E S C R I P T I 0 N 1 THAT PART OF LOT 63 LYING SELY OF 2 STATE HWY NO 100 EX ROADS 3 4 5 6 7 8 9 10 11 12 13 14 Press F1. F2. F5. F8 EXHIBIT A EXHIBIT TWO EXHIBIT A PROPERTY DATA SYSTEM LEGAL DESCRIPTIONS INQUIRY CURB 304 PROPERTY ID NEXT _ 01- 118 -21 -22 -0096 LOT: BLOCK: "LAUDERDALE & HAVEN'S OUTLOTS TO MINNEAPOLIS" SEQN D E S C R I P T I 0 N 1 LOTS 5 AND 6 EX ROAD 2 3 4 5 6 7 8 9 10 11 12 13 14 Press F1, F2. F5. F8 EXHIBIT A EXHIBIT THREE iui NOTES 15 ARE I ME of - - — , Dafo - r4opj __ - - - - -- Post-it* Fax Note 767 1 14 i w( MI01 1419 CIF rom HOCKEY TO fa Tkw ?" F �r r+t� _ ` / _ ! s _ $0 0 Co./Dept __M_ a. c- TL 7 A Memo Phone # Phone # DUNG I Fax #. to o) to Fax 139cu WEST PAM cn —38 R% I IZII— Now— P..Pvm .0mem T 11 �lm t 14%7 1 �� � :OTH 4'.'E'IU'c � N. m [ �NrAVMLIE 00 V XT A 0* % 0) — .EW WALK A PROPER" GO Lima FIAT FIATION 3 MOFT PLATT 4 INJUDUM RX710MM "4 -rwmx KAY IffATK)M 2 as � NVI %'6 IMc% _j 0 AT STATNIN I PmEaALL!, 4D" or =mc� v I 1.3 92 It w rROMMED ELEMENTARY VCHOM r OFF EXT 3w J&W zbolf CW COwrRM WALX LGAVINO DOCK VALIWM WALL 9XVIMOM R .0 PACO 90 GURIP. MU)" WALL 'wwPI ' V ­,' : .1 1 RUG N a PA C2 — .'--_— - k h C.1 Aft TOM If —AM WALK PI to V iTORM WATER C TORM WATER cod OINDI" Jaw F�- luo EXHIBIT A EXHIBIT FOUR EXHIBIT A Development Plan shall refer to those documents on file with the Community Development Department of the City of Brooklyn Center dated August 30, 2002 certified by Paul A. Hagen, AIA, of The Leonard Parker Associates, Inc. { EXHIBIT A EXHIBIT FIVE HAS BEEN INTENTIONALLY LEFT BLANK EXHIBIT A EXHIBIT SIX • 1 TT TTT TT 4 I- I EXHIBIT SIX SHALL BE THE SPECIFICATIONS FOR THE NEW EARLE BROWN ELEMENTARY SCHOOL DATED AUGUST 30, 2002 ON FILE WITH THE City of Brooklyn Center's COMMUNITY DEVELOPMENT DEPARTMENT, TOGETHER WITH ADDENDA NUMBERS I AND 2 EXHIBIT A. EXHIBIT SEVEN EXHIBIT A JOINT USE AGREEMENT This Joint Use Agreement is an addendum to the Agreement by and between Independent School District #286, and the City of Brooklyn Center dated November 5, 2002: Section 1. Defined Terms:_ For purposes of this Agreement, the following f definitions shall apply: "Parties" shall mean Independent School District #286, and the City of Brooklyn Center. "City shall mean City of Brooklyn Center. "Contribution Amount" shall mean the amount paid by the City to the District pursuant to paragraph 5.2 of the Agreement dated November 5, 2002. If a return of the Contribution Amount is required under this Agreement, the unamortized portion of the $200,000 referenced therein shall be determined on a straight line basis, based on the initial term of the Agreement (expiring June 30, 2025). The unamortized ortion of any Y proceeds of grants from the Department of Children, Families and Learning (The Department) shall be the amount the City is required to reimburse The Department. "District" shall mean Independent 6. School District #2 P 8 "School" shall mean the Earle Brown Elementary School. "School Da vs" vs shall mean all calendar days during the School Year during which . school activities or exams are scheduled to be held by the District for the District's school students as shown on Exhibit A "School Days" shall specifically include summer programming. "School Hours" shall mean those hours described in the Priority of Use chart between the start of school day and end of school day as shown on Exhibit B. "School Year shall mean all calendar days during each of the District's then school years (inclusive of summer programming and/or other school sessions comprising a portion of such school years, if applicable), commencing as of the first day of each such school year and ending as of the last day of each such school year. "Shared Park SUace" shall mean those areas, including play lots, located within the Park, all shown on Exhibit C to which District 9286 is granted limited, non - exclusive rights of access and use for the purpose of conducting permitted activities of the District, (as permitted in this Agreement.), together with parking lots, trails, entrances and other common areas of the park which are reasonably necessary for such access and use by the District as shown on Exhibit C, including without limitation all facilities commonly EXHIBIT A located and used in said spaces (and excluding, absent the prior consent of the City, all fixtures, equipment, or sports equipment commonly located or used therein). "Shared School Space" shall mean those areas within the School Building, as shown on the attached Exhibit D, to which City of Brooklyn Center is granted limited, non - exclusive rights of access and use for the purpose of conducting certain activities of the City, together with hallways, restrooms, entrances and other common areas of the school building which are reasonably necessary for such access and use by the City as shown on Exhibit D, including without limitation all facilities commonly located and used in said spaces (and excluding, absent the prior consent of the District, all fixtures, equipment, or sports equipment commonly located or used therein). "Shared Space" shall mean the collective reference to the Shared Park Space and the Shared School Space. "Third Party" shall mean any individual, person or entity, other than the District, or the City. "Terms and Conditions" shall mean all other terms and conditions of this Agreement that are contained elsewhere in the agreement. Section 2. Term of Agreement. Unless earlier terminated as otherwise provided in this Agreement, the initial term of this Agreement shall be for a period of approximately twenty (20) years commencing on the later date of the occupation of the school space, or the commencement date of this Agreement and ending on June 30, 2025. Upon the expiration of the initial term, this Agreement shall be automatically renewed for successive renewal terms of one (1) year each unless either party shall give notice to the other specifying that the Agreement shall not be renewed upon the expiration of the term in which such notice is given. Such notice of non - renewal shall be given not less than three (3) months nor more than six (6) months prior to the expiration of the then applicable term. Section 3. License to City for Use of Shared School Space. The District grants the City a non - exclusive license, in common with the District, to use and occupy the Shared School Space as permitted in this Agreement. Section 4. License to District for Use of Shared Park Space. The City grants the District a non- exclusive license, in common with the City, to use and occupy the shared park space as permitted in this agreement. Section 5. Terms and Conditions for Use of Shared Space. The following terms and conditions shall govern the use of the Shared Space: EXHIBIT A Section 5.1 Prioritv of Use of Shared School Space. Priority of Use of the Shared School Space between the District and the City shall be determined and allocated according to the Priority of Use Chart attached as Exhibits B and B1. Section 5.2 Priority of Use of Shared Park Space. Priority of Use of the Shared Park Space between the District and the City shall be determined and allocated as follows: a. Use of designated shared park areas. At all times during school hours and for all school days during the School Year, the City shall provide the District use of the designated shared arks ace with reason b p p able consideration given to the conditions of the grounds. The City shall have scheduling priority over the District for use of the designated shared park space at all other times. Section 5.3 Scheduling. (a) General. The District and the City, as applicable, shall be responsible for all scheduling of that portion of the Shared Space for the periods of time during which each has priority of use according to the Priority of Use chart. All requests for scheduling of any of the Shared Space shall be submitted by the party requesting use to the party with scheduling responsibility for the space and time period requested. Unless otherwise permitted by the party with primary scheduling responsibility, all such requests shall be submitted to the party with scheduling responsibility not more than thirty (30) days, nor less than seven (7) days, in advance of the requested use dates. (b) Special Activities. Special activities by the District or the City may require preparation of the Shared Space. The scheduling of all such special activities, as well as the scheduling of all preparations for such special activities, shall be determined according to Sections 5.1 and 5.2(a) of this Agreement. The parties agree to try to schedule all such preparatory work at times and in such a manner as will minimize any disruption to the regular programs of the District, and the City on or within the Shared Space. (c) Use of Shared Space by Third Parties,. The City and the District shall at all times have scheduling priority over any Third Party for use of the Shared Space. Special Conditions,. (d ) s S ecial conditions s that impact the School Year, School Days or School Hours, such as summer school, will require an adjustment in the Priority of Use and the Priority of Use Chart to accommodate the condition during the period of time the condition is in effect. ' EXHIBIT A (e) Conflicting Requests. In the event of conflicting requests for use of any of the Shared Space, and unless otherwise agreed between the Parties, scheduling f such space shall a g p 11 be determined according to the applicable pp licable priorities of use as permitted in this Agreement and in the Priority of Use chart. Section 5.4 Shared Use Coordinating Council. A four member coordinating council will be formed and made up of equal representation from the District and the City. (a) Responsibilities. The Shared Use Coordinating Council shall include, but not be limited to, the following: 1) monitor and review the Priority of Use Chart as well as the operation of the facilities to ensure equity and coordination of activity and effort by the Parties to this Agreement; 2) mediate scheduling conflicts. (b) Membership. Membership of the Shared Use Coordinating Council will consist of two representatives of each of the parties. School District Representatives will be appointed by the School Board. City representatives will be appointed by the City Manager. (c) Governance. The Shared Use Coordinating Council shall be responsible for formally constituting itself upon selection of the membership. Section 6. Cleaning and Maintenance of Facilities. Section 6.1 Cleaning of Shared School Space. The District shall be responsible for cleaning and maintenance of the Shared School Space on terms determined by the District consistent with the District's cleaning program for the remainder of the school facilities. The City shall be responsible for reimbursing the District for any special non - routine cleaning or custodial costs resulting from their use. Section 6.2 Cleaning of Shared Park Space., The City shall be responsible for cleaning and maintenance of the Shared Park Space on terms determined by the City consistent with the City's program cleaning and maintenance program for the remainder of the park facilities. The District shall be responsible for reimbursing the City for any special non - routine cleaning or custodial costs resulting from their use. Section 7 Maintenance and Care. Section 7.1 General Maintenance of Shared Space. The District shall be responsible for all maintenance to, and repairs of the School Building. The City shall be responsible for all maintenance to and repairs of the park facilities EXHIBIT A Section 7.2 Care of Grounds. The City shall provide normal maintenance of the exterior grounds within the Park including the mowing of the lawn, trimming of trees and shrubs, raking of leaves, removing of litter and trash, and maintenance of the athletic fields (including the costs of watering, aerification, seeding, and fertilizing of the athletic fields) and play lots and plowing and removal of snow from the trails (including the trail section that runs along the Highway 100 noise wall) and parking lots in a manner consistent with other similar facilities and grounds in the City's park system. The District shall be responsible for care and maintenance of the grounds surrounding the School Building. The District shall be responsible for removal of snow from the entrances to the school building and for all other snow removal (with the exception of the trail section that runs along the Highway 100 noise wall) on thb school property. It is understood that to maximize access to District and City property, cooperation in snow removal will be required. Section 7.3 Parking Areas. The District shall be responsible for the care and maintenance of the parking areas located on the new school property. The City shall be responsible for care and maintenance of the parking areas located on the new park property. The City and the District shall share in the care and maintenance of the "shared Parking" areas as delineated on the site master plan. For the shared parking area, as the District's snow removal needs are time sensitive, the District shall be responsible for the removal of snow from the lot, sidewalks and adjacent areas. It is understood that to maximize access to District and City property, City cooperation in snow removal will be required. The City shall be responsible for the costs of lighting and routine maintenance of the lot including, but not limited to, sweeping, patching and seal coating. Reconstruction, replacement or major repair of the "Shared Parking" may be undertaken by either party, as agreed upon by the party's. The cost of such repairs shall be divided on the basis of the square footage of the "Shared Parking" on each party's property. Section 8. Property Damage. Section 8.1 Damage by District. If the Shared Park Space, or any part thereof, or any part of the improvements of which they form a part, are damaged or destroyed by the willful or negligent conduct of the District or its officers, employees., independent contractors, agents, or invitees, the District shall promptly repair such damage or replace such improvements so destroyed; provided, however, if such damage or destruction is covered by insurance, then, to the extent that the cost of repairing or replacing such damage or destruction does not exceed the amounts of such insurance, the District shall be relieved from any obligation to pay for such repair or replacement. Section 8.2 Damage by City. If the Shared School Space or any part thereof, or any part of the improvements of which they form apart, are damaged or destroyed by the willful or negligent conduct of the City or its officers, employees, independent contractors, agents, or invitees, the City shall promptly repair such damage or replace such improvements so destroyed; provided, however, if such damage or destruction is covered by insurance, then, to the extent that the cost of repairing or replacing such EXHIBIT A damage or destruction does not exceed the amounts of such insurance, the City shall be relieved from any obligation to pay for such repair or replacement. Section 83 Damage by Other. In the event any of the Shared Space is damaged or destroyed by fire or other casualty, the owner(s) of the portion of the Shared Space so damaged or destroyed, shall with reasonable diligence, repair such damage and restore the Shared Space to substantially the condition of the Shared Space immediately prior to such damage or destruction, subject to delays which may arise by reason of adjustment of loss under insurance policies and delays beyond the reasonable control of the owner(s) of the portion of the Shared Space so damaged or destroyed; provided, however, that if one or more of such owner(s) may determine in its sole or their sole discretion that it is impractical to restore the Shared Space affected, such owner(s) may terminate this Agreement as to the affected portion of Shared Space only; provided, however, in the event all of the Shared Space then in effect under this Agreement is so damaged and /or destroyed or is materially affected by such damage or destruction, such owner(s) may terminate this Agreement as to the affected portion of Shared Space only; in its entirety without further liability or obligation to any of the other parties. The owner(s) of the portion of any Shared Space damaged or destroyed must notify the other of its intentions with thirty (30) days of the damage and, if the intent is to restore, must start restoration within sixty (60) days of the date the damage or destruction occurred. In the event of any failure by such owner(s) to so notify the other or to so commence and complete restoration, any of the other reserves the right to terminate this Agreement upon thirty (30) days advance written notice. Section 9. Agreement Review and Amendments. Section 9.1 Members of the Shared Use Coordinating Council shall meet annually, or as needed, to jointly review operations under this Agreement and, if necessary, to recommend amendments to the terms of this Agreement to the parties or their designees. Such amendments or modifications of this Agreement shall be effective when made in writing and signed by all parties including the ISD #286 School Board and The Brooklyn Center City Council. Section 9.2 Staff employed by the District and the City shall meet on a regular basis to facilitate effective programming and scheduling. Section 9.3 If a dispute develops between any of the parties regarding the performance of the managerial personnel or the interpretation of the rights and obligations of the parties under this Agreement, such disputes shall be referred to the Shared Use Coordinating Council as described in Section 5.4. If the dispute is unable to be resolved by the Shared Use Coordinating Council, it shall then be referred to the next administrative level of the respective bodies who shall attempt to settle the dispute. Such referral shall continue to succeeding levels of the respective bodies until all administrative levels have been exhausted; provided, however, all such administrative ' EXHIBIT A levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of (90) days from and after the date of initial occurrence of the dispute. If the dispute cannot be resolved in this manner, any of the parties may pursue any remedy available at law or equity. Section 10. Termination. Section 10.1. Termination for Cause. In the event of any breach of any of the terms of this Agreement, the party alleging the breach may seek to terminate this Agreement by giving the breaching party written notice specifying the nature of the breach. If the breach is not remedied within thirty (30) days of the date of delivery of such notice, or if additional breaches of a materially similar nature occur within the thirty (30) day period following the date of delivery of said notice, the party alleging the breach may send the breaching party a second written notice setting forth the time, place and date of a meeting to discuss the breach, the time, date and place for which shall in all respects be reasonable and shall specify a date not later than ten (10) days from the date of such written notice. The Superintendent for the District or his or her designee(s) and the City Manager or his or her designee(s) shall attend such meeting. If the breach continues for more than twenty (20) days after the date of such meeting, the party alleging the breach may send a final written notice of termination to the breaching party terminating this Agreement effective upon the date of delivery of such notice. If the District or the City terminates this Agreement pursuant to this Section 10. 1, the City will be entitled to a return of its unamortized Contribution Amount paid in accordance with paragraph 5.2 of the Agreement dated November 5, 2002, Section 10.2 Termination Without Cause by District. This Agreement may be terminated without cause by the District effective as of June 30 of any calendar year upon delivery to the District, on or before February 1 of such calendar year, of advance written notice of termination. If this agreement is terminated by the District without cause, or by operation of law, the City will be entitled to a return of the unamortized portion of the Contribution Amount paid in accordance with paragraph 5.2 of the Agreement dated November 5, 2002. Section 10.3 Termination Without Cause by City. This Agreement may be terminated without cause by the City effective as of June 30 of any calendar year upon delivery to the District, on or before February 1 of such calendar year, of advance written notice of termination. With respect to the City, if the City terminates this Agreement pursuant to this Section 7.3, the City will not be entitled to a return of the unamortized balance of its Contribution Amount as specified in the lease agreement. Section I1 Notices Section 11.1 Notices. Any notice required or permitted to be sent hereunder shall be in writing and be distributed by courier delivery, facsimile transmission, or U.S. Mail to the following addresses, or to such other address as may be specified from time to time in writing by the District, or the City. S EXHIBIT A Independent School District #286 Superintendent of Schools Independent School District No. 286 6500 Humboldt Avenue North . Brooklyn Center, MN 55430 -1897 City of Brooklyn Center City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 IN WITNESS WHEREOF, the parties by their authorized representatives have hereunto set their hands as of the date and year first above written. INDEPENDENT SCHOOL DISTRICT CITY OF BROOKLYN CENTER NO. 286 By By Its Its Mayor By By Its Its City Manager EXHIBIT A Exhibit A School District Calendar EXHIBIT A Exhibit B Priority Use Chart 7:30 a.m. until end of extended day activities (Approximately 6:00 p.m.) Space Use Priority City District j Gymnasium School physical .education classes, x after school activities Multi Purpose Room ` School classes, after school x activities Locker Rooms I School physical education classes, x after school activities Office School District Staff I x I I EXHIBIT A Exhibit B1 Prioritv Use Chart Evening Activities (Approximately 6:00- 10:00 p.m.) Space Use Priority City District ` Gymnasium School physical education classes, x after school activities Multi Purpose Room School classes, after school x activities Locker Rooms School physical education classes, x after school activities Office { I School District Staff x I � ► i I � Priority use will be provided for a minimum of 180 calendar days per year. Additional days /times may be added by mutual consent of the Shared Use Coordinating Council.. il. i I I EXHIBIT A Exhibit C Shared Park Space / B asiciP, Si! EYis� j fmis 0 Hockey < o 60th A vr^.aeNo-ty Phy, €d. 1 Baseball socced / q Foolbal 6 S Qr0' I ��:r• Hard Play EXHIBIT A Exhibit D Shared School Space . . . rte. Music Music Stor. Asst -- '�`,... '. �, �•� _ Prin. -- �'.. Inst = Stor, M� : .. - Conf.. _ Band Gym �p f -- -� ~'- 10 Conf Home Away w : ft ..A. .A. T, r . Stor. � t; � � •�., , � ��. RectVii on ut -N s J s Sto Stor. �\ ~ off. L e ot7l er~ N 7 1 1 i ILI TT CISTM