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School D 28E Agree Neighborhood Resource Ctr i5~~~E ~ck~ MEMORANDUM November 16, 2005 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: 28E Agreement with the Dubuque Community School District, Neighborhood Resource Center Leisure Services Manager Gil Spence recommends execution of a 28E Agreement with the Dubuque Community School District for operation of the Resource Center in the new Prescott Elementary School. I concur with the recommendation and respectfully request Mayor and City Council approval. (J1J ~j2tL Micnael C. Van Milligen MCVM/jh Attachment cc: John Burgart, Superintendent, Dubuque Community School District Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager GiI D. Spence, Leisure Services Manager (--I ,,--, ., IV DU~~E ~c/k.~ MEMORANDUM November 15, 2005 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services ManageY SUBJECT: 28E Agreement with the Dubuque Community School District, Neighborhood Resource Center INTRODUCTION The purpose of this memorandum is to request City Council approval of the 28E Agreement with the Dubuque Community School District for operation of the Neighborhood Resource Center in the new Prescott Elementary School. BACKGROUND During the planning process for the new Prescott School, the City expressed an interest in creation of a space for a Neighborhood Resource Center to be used as a gathering space for issues of interest to the neighborhood and for recreation programming. The City offered the School District $250,000 toward construction of the Center for creation of the 1,700 sq. ft. Center. City and School District staff have discussed the 28E Agreement over the last several months and been through several revisions to reach this final version. Attorneys from both organizations have reviewed and commented on the agreement. DISCUSSION The School Board approved the agreement on November 14, 2005 so City Council action will make it final. The main points of the agreement are as follows: . Length is for an initial ten-year period, with one five-year renewal period. . The City will pay $250,000 to the School District toward construction of the Center. continued 28E Agreement, page two . The City will be allowed to open and close the cafeteria, gymnasium, and other areas permitted by the School District with no School District employee required to be present. . We will pay $1,200 for natural gas, $2,000 for electricity, and $2,800 for custodial services and supplies. We will maintain our own telephone line also. . All School District rules and regulations that apply to the School will apply to the Center, including no smoking and no alcohol. . The City will provide the equipment and furnishings needed for the Center. ACTION STEP The action requested is that the City Council approve the 28E Agreement with the Dubuque Community School District. GDS:et attachment 28E AGREEMENT between The Dubuque Community School District and The City of Dubuque, Iowa This Agreement dated this 14th day of November, 2005, for reference purposes, by and between the Dubuque Community School District (herein the "School District") and the City of Dubuque, Iowa (herein the "City'). RECITALS The School District owns property in the City of Dubuque, Iowa, legally described-on Exhibit A attached (the "Property"). The School District is in the process of constructing a new Elementary School in downtown Dubuque on the Property and the City desires to establish a Neighborhood Resource Center as part of the new elementary school. The City and the School District wish to enter into this Agreement pursuant to the provisions of Chapter 28E, Code ofIowa. THEREFORE, in consideration ofthe mutual agreements and covenants contained herein, the City and the School District agree as follows: J. DEFINITIONS. "Center" means the Neighborhood Resource Center consisting of an area of 1,700 square feet as part ofthe School Building. "City" means the City of Dubuque. "City Manager" includes the City Manager of the City of Dubuque and me City Manager's designee. "Elementary School" means the School Building being constructed on the Property and the Property itself. "Exhibit A" contains the legal description ofthe Property. "Exhibit B" is a drawing showing the location of the Center in relation to the School Building. "School Building" means the new Elementary School of approximately 60,000 square feet currently under construction by the School District on the Property. "School District" means the Dubuque Community School District. "Superintendent" includes the Superintendent of Schools ofthe Dubuque Community School District and the Superintendent's designee. 2. DURATION OF AGREEMENT. This Agreement shall commence on the date immediately following both its filing with the Secretary of State and recording with the Dubuque County Recorder and shall continue for an initial period often (10) years thereafter. This Agreement shall automatically renew for one term of five years unless either party gives written notice to the other of intent to terminate the Agreement at the expiration of the initial term. Any notice of intent to terminate shall be provided to the other party not less than 365 days prior to the expiration of the initial term. 3. ORGANIZATION. No separate entity will be created to carry out the intent and purpose of this Agreement. Subject to the terms and conditions of this Agreement, the City shall be responsible for the administration of the Center and the enforcement of rules and regulations relating to the operation thereof. Except for the Center, the School District shall be responsible for the administration, ongoing management, and operation of the Elementary School and School Building. 4. PURPOSE OF AGREEMENT. The purpose of this Agreement is to permit the City and the School District to make efficient use of their respective powers to provide the services and facilities referred to herein. The School District is in the process of constructing an Elementary School with adjoining parking facilities and play area, and the Center. The Center will include a meeting room, community room, and rest room, as shown on Exhibit B. The City may request the School District to identify the Center with a name different from the name of the School Building. If a name different from the name of the School Building is authorized by the School District, any signage, whether attached to the School Building or free standing and the location thereof must be approved in advance by the School District. 5. FINANCING THE SCHOOL, CONSTRUCTION. In consideration for the City's right to the use of the Center as set forth herein, the City shall pay the sum of $250,000 to the School District toward the construction of the Center. The City shall make periodic payments of such contribution 0 the School District; such payments shall be made within 30 days after receipt of an invoice from the School District. The amount of each such invoice and partial payment shall be determined by the Architect for the School District based upon the work completed on the Center. The School District shall be responsible for all other costs related to the construction of the School Building and adjoining areas, except as otherwise herein provided. 6. DESIGN AND CONSTRUCTION. 6.1 Design. The School District has contracted for the design of the School Building and the Center. Exhibit B shows the proposed layout and location of the Center and the School Building. Exhibit B and the full enlargement thereof prepared by the School District's Architect have been approved by the School District and the City with respect to the location and design of the Center. 6.2 Construction. The School District has secured bids for the construction of the School Building, including the Center, pursuant to Iowa Law. 7. MANAGEMENT, OPERATION, AND USE OF THE SCHOOL BUILDING, GROUNDS AND CENTER. 7.1 Premises and Term. Upon the terms and conditions of this Agreement, and in consideration of the City's contribution of $250,000 toward the cost of construction of the Center, it is agreed as follows: 7.2 Zones of Use. A) The Center. The parties agree that the City's right to occupy and use the Center is exclusive, it being the intent of the parties that the Center is to be shared and jointly used by the public and by the public school students pursuant to a "Use Schedule" developed by the City Manager. The School District's use of the Center shall be scheduled through the City Manager, with the School District receiving priority in scheduling after City and City-affiliated groups and with no charge for its usage. The City shall provide the principal of the school a copy of the next month's schedule. As changes occur in such schedule during the month, the City Manager shall provide an update via e-mail or fax to the Superintendent. B) The School Cafeteria and Gymnasium. The City may use the school cafeteria and gymnasium according to a schedule approved by the Superintendent. The City shall receive priority scheduling after school and school-affiliated groups, with no additional charge for such usage, except that the City will be charged for any costs for clean-up that requires school staff to work beyond their normal hours. The City shall be allowed to open and close the School Building cafeteria, gymnasium, or other areas of use permitted by the School District on weekends so that no School District employee will be required to be present at the School Building. A City employee, approved by the Superintendent, shall be provided, at the City's expense, and such person must be present at all times when the School Building or other areas of the school site are being used by the City or under the auspices ofthe City. The City shall be responsible for any damage to the School District's Building or equipment during use by the City which is caused by the City's negligence. The School District's equipment (such as kitchen equipment) shall be operated only by persons approved in advance by the Superintendent. The City may use or authorize the use of equipment in the School Building approved in advance by the Superintendent. The City shall make a reasonable effort to prohibit any persons from roaming the hallways or entering any offices in the School Building when it is supervising use of the School Building. Any damage to persons or property or the death of any person while the School Buildings or grounds are being used by the City caused by the City's negligence shall be the responsibility of the City. C) Other Areas ofthe School. The City's use of any other areas of the School Building or Property shall be approved in advance by the Superintendent. The City shall receive priority scheduling after school and school-affiliated groups, subject to the terms and conditions of this Agreement. Use of such areas of the School Building or Property will require supervision by School District employees except as provided in par. B above. Any costs incurred by the School District for such service will be paid by the City. D) The City shall not have any right to use the cafeteria, gymnasium and other parts of the School Building (except the Center) or the Property at any time while the Elementary School is in session. E) Notwithstanding any other provision of this Agreement, no usage by the City ofthe Center or any other part of the School Building or the Property shall at any time in any manner interfere with the operation of the Elementary School or the students attending the Elementary School. The decision of whether there is any interference with respect to the operation ofthe School or students shall be determined by the Superintendent. The City Manager shall immediately terminate any use of the Center or the School Building or Property which in any manner interferes with the operation of the Elementary School or the students attending the Elementary School. Written notice of such interference shall be provided to the City Manager by the Superintendent. 7.3 Operation and Maintenance. The City shall be responsible for operation ofthe Center, including general supervision ofthe Center. The operation of the Center shall be under the general administration of the City Manager. The School District shall have sole responsibility to provide usual custodial and maintenance services for the Center, and for paying all charges for utilities, including gas, water, electricity, and sewer. For the first year of operation, the City shall reimburse the School District $1,200 for natural gas, $2,000 for electricity and $2,800 for custodial services and supplies, Utility rates will be adjusted thereafter annually on June 30, based on the increase or decrease in the average consumer price index for all urban consumers (CPIU) measured for the twelve months ending December 31 of the previous year, as published by the U.S. Bureau of Labor Statistics. Custodial service rates shall be adjusted according to the annual percentage of increase in School District custodial staff total salary and benefit package. The City shall pay all long distance telephone charges for the telephone in the Center and maintain its own telephone system in the Center. The School District shall perform or contract to perform any repair or modifications to the Center. The City shall pay for the actual cost of labor and materials for any repair to the Center and for any modifications which the City requests and to which the School District agrees. The School District shall pay for any modifications to the Center which it requests and to which the City agrees. 7.4 School Policies The City acknowledges that the School District has certain policies governing the use of its facilities, including policies relating to health and welfare, which are designed for the benefit of the School District and all facility users. The City agrees that during the time it is operating and/or using the Center, such policies shall continue to apply. The Superintendent shall provide copies of all applicable policies to the City Manager prior to the commencement of this Agreement and shall also provide any new or modified policies to the City Manager from time to time during the term of this Agreement. The parties agree that no tobacco products, alcoholic beverages, drugs prohibited by law, or weapons (as defined in School District Policies) shall be allowed at the Center or in the School Building or on the School Property at any time. Any person or group in violation of the provisions of the preceding sentence shall thereafter be prohibited from using the Center or the School Building or the School Property. The City, while utilizing the School District Building or Property under this Agreement, shall make a reasonable effort to prohibit use ofthe Center or School Building or Property by (i) any person known by the City to be a registered sex offender under any federal or state law (ii) any person known by the City to have committed any act prohibited by Chapter 692A, Code of Iowa and (iii) any person known by the City to have been convicted of any other offense detrimental to children or who engaged in any act detrimental to children. 7.5 Building Security. In its use of the Center or of any other area of the school, the City shall abide by all security procedures established by the School District and published in a security manual provided to the City Manager and updated as necessary by the Superintendent. The Center shall be included in the alarm system for the total facility; the City shall be charged for any police alarm calls to the Center or School resulting from the City's use, unless that call is the result of the alarm system's malfunction. 8. ASSIGNMENT AND SUBLEASE PROHIBITED. This Agreement shall not be assigned by the City nor shall any part of the Center be sublet by the City. 9. DECLARATION OF DEFAULT AND NOTICE. In the event either party determines the other has defaulted in the performance of a material obligation hereunder, the aggrieved party may declare that default has occurred and give notice thereofto the defaulting party. Notice of default shall be given in writing, shall specify the nature of the default and the provision of this Agreement in default, and shall further specify what action is required ofthe defaulting party to remedy the default. The defaulting party shall have thirty (30) days from the date of its receipt of the notice of default to remedy the default. If the default has not been remedied, by the end of such thirty (30) day period, the aggrieved party may pursue its remedies as provided herein. Notwithstanding the foregoing, if the default is of such a nature that it is unable to be remedied within said thirty (30) day period, the defaulting party shall not be in breach of this Agreement so long as the defaulting party is making good faith efforts to remedy the default during said thirty (30) day period and remedies the default as soon thereafter as is reasonably possible. 10. REMEDIES UPON DEFAULT. Either party may, at its option, after declaring default and giving notice thereof as provided in paragraph-& 9 above, seek tern.ination or specific performance of this Agreement. In order to obtain termination or specific performance of this Agreement, the party seeking such relief shall, after expiration of the thirty (30) day period following receipt of notice of default referred to in Par. 9, shall commence a proceeding for termination or specific performance in the Iowa District for Dubuque County. The petitioning party may seek termination and specific performance as alternative forms of relief and nothing in this Agreement shall be construed to require the petitioning party to elect its remedy at the time suit is filed. 11. EFFECT OF TERMINATION. In the event of termination of this Agreement for any reason, the City shall have a reasonable time to remove all of its equipment located in the Center. 12. MODIFICATION OF THIS AGREEMENT. Certain management and organizational issues addressed in this agreement may need to be revised based upon either the School District's or the City's experience during the initial year of operation or in subsequent years during the term of this agreement. Therefore, the Superintendent and City Manager will review the terms of this agreement at the end of each year to determine if any modifications should be made. No waiver, change, modification or amendment ofthis Agreement shall be binding upon either party unless such changes are proposed in writing and are approved by both parties in the same manner as this Agreement. 13. INDEMNITY AND HOLD HARMLESS. 13.1 School District Obligation. The School District hereby agrees to indemnify, defend and hold harmless the City, its officers, agents, and employees, or any other persons acting on its behalf, against any and all claims, suits, actions, debts, damages, costs, charges, and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the School District or its agents or employees in the performance or nonperformance of this Agreement. 13.2 City Obligation. The City agrees to indemnify, defend, and hold harmless the School District, its officer, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges, and expenses, including court costs and attorney's fee, and against all liability for the property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the City, its agents, employees, or any other persons acting on its behalf in the performance or nonperformance of this Agreement. 14. NOTICES. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: (1) If to the City: City Manager City Hall 50 West 13th Street Dubuque, IA 52001 (2) If to the School District: Superintendent of Schools Dubuque Community School District 2300 Chaney Road Dubuque,IA 52001 15. APPROVAL. 15.1 By the City Council. This Agreement was approved by the City Council ofthe City of Dubuque on the day of ,2005. 15.2 By the School District. This Agreement was approved by the Board of Directors of the Dubuque Community School District on the 14th day of November, 2005. Dubuque Community School District City of Dubuque, Iowa By: ~~ Board of Directors /; 'xl i:,uuuJ rt1u ./ ((., . vIoni S. Lucas, Secretary Board of Directors By: Mayor By: By: City Clerk 1111111111111111111111111111111111111111111111111111111111111I11III1111111111111 Doc ID: 005319480012 Type: GEN Recorded: 12/21/2005 at 10:44:51 AM Fee Amt: $62.00 PaRe 1 of 12 Dubuque County Iowa Kathy Flynn Thurlow Recorder Flle2005-00020648 Prepared by: Barry A. Lindahl, Corporation Counsel, 300 Main Street, Dubuque, IA 52001 (563) 583-4113 Return to: Jeanne F. Schneider, City Clerk, 50 West 13th Street, Dubuque IA 52001 28E AGREEMENT between The Dubuque Community School District and The City of Dubuque, Iowa This Agreement dated this 14th day of November, 2005, for reference purposes, by and between the Dubuque Community School District (herein the "School District") and the City of Dubuque, Iowa (herein the "City'). RECITALS The School District owns property in the City of Dubuque, Iowa, legally described-Qn Exhibit A attached (the "Property"). The School District is in the process of constructing a new Elementary School in downtown Dubuque on the Property and the City desires to establish a Neighborhood Resource Center as part of the new elementary school. The City and the School District wish to enter into this Agreement pursuant to the provisions of Chapter 28E, Code ofIowa. THEREFORE, in consideration of the mutual agreements and covenants contained herein, the City and the School District agree as follows: 1. DEFINITIONS. "Center" means the Neighborhood Resource Center consisting of an area of 1,700 square feet as part of the School Building. "City" means the City of Dubuque. "City Manager" includes the City Manager of the City of Dubuque and the City Manager's designee. "Elementary School" means the School Building being constructed on the Property and the Property itself. "Exhibit A" contains the legal description of the Property. "Exhibit B" is a drawing showing the location of the Center in relation to the School Building. "School Building" means the new Elementary School of approximately 60,000 square feet currently under construction by the School District on the Property. . (!) Ha 00 o ((7~ "School District" means the Dubuque Community School District. "Superintendent" includes the Superintendent of Schools ofthe Dubuque Community School District and the Superintendent's designee. 2. DURATION OF AGREEMENT. This Agreement shall commence on the date immediately following both its filing with the Secretary of State and recording with the Dubuque County Recorder and shall continue for an initial period often (10) years thereafter. This Agreement shall automatically renew for one term of five years unless either party gives written notice to the other of intent to terminate the Agreement at the expiration of the initial term. Any notice of intent to terminate shall be provided to the other party not less than 365 days prior to the expiration of the initial term. 3. ORGANIZATION. No separate entity will be created to carry out the intent and purpose of this Agreement. Subject to the terms and conditions ofthis Agreement, the City shall be responsible for the administration of the Center and the enforcement ofmles and regulations relating to the operation thereof. Except for the Center, the School District shall be responsible for the administration, ongoing management, and operation ofthe Elementary School and School Building. 4. PURPOSE OF AGREEMENT. The purpose of this Agreement is to permit the City and the School District to make efficient use of their respective powers to provide the services and facilities referred to herein. The School District is in the process of constructing an Elementary School with adjoining parking facilities and play area, and the Center. The Center will include a meeting room, community room, and rest room, as shown on Exhibit B. The City may request the School District to identify the Center with a name different from the name of the School Building. If a name different from the name of the School Building is authorized by the School District, any signage, whether attached to the School Building or free standing and the location thereof must be approved in advance by the School District. 5. FINANCING THE SCHOOL, CONSTRUCTION. In consideration for the City's right to the use of the Center as set forth herein, the City shall pay the sum of$250,000 to the School District toward the construction ofthe Center. The City shall make periodic payments of such contribution 0 the School District; such payments shall be made within 30 days after receipt of an invoice from the School District. The amount of each such invoice and partial payment shall be determined by the Architect for the School District based upon the work completed on the Center. The School District shall be responsible for all other costs related to the construction of the School Building and adjoining areas, except as otherwise herein provided. 6. DESIGN AND CONSTRUCTION. 6.1 Design. The School District has contracted for the design ofthe School Building and the Center. Exhibit B shows the proposed layout and location ofthe Center and the School Building. Exhibit B and the full enlargement thereof prepared by the School District's Architect have been approved by the School District and the City with respect to the location and design ofthe Center. 6.2 Construction. The School District has secured bids for the construction of the School Building, including the Center, pursuant to Iowa Law. 7. MANAGEMENT, OPERATION, AND USE OF THE SCHOOL BUILDING, GROUNDS AND CENTER. 7.1 Premises and Term. Upon the terms and conditions of this Agreement, and in consideration ofthe City's contribution of $250,000 toward the cost of construction of the Center, it is agreed as follows: 7.2 Zones or Use. A) The Center. The parties agree that the City's right to occupy and use the Center is exclusive, it being the intent of the parties that the Center is to be shared and jointly used by the public and by the public school students pursuant to a "Use Schedule" developed by the City Manager. The School District's use of the Center shall be scheduled through the City Manager, with the School District receiving priority in scheduling after City and City-affiliated groups and with no charge for its usage. The City shall provide the principal ofthe school a copy ofthe next month's schedule. As changes occur in such schedule during the month, the City Manager shall provide an update via e-mail or fax to the Superintendent. B) The School Cafeteria and Gymnasium. The City may use the school cafeteria and gymnasium according to a schedule approved by the Superintendent. The City shall receive priority scheduling after school and school-affiliated groups, with no additional charge for such usage, except that the City will be charged for any costs for clean-up that requires school staff to work beyond their normal hours. The City shall be allowed to open and close the School Building cafeteria, gymnasium, or other areas of use permitted by the School District on weekends so that no School District employee will be required to be present at the School Building. A City employee, approved by the Superintendent, shall be provided, at the City's expense, and such person must be present at all times when the School Building or other areas ofthe school site are being used by the City or under the auspices of the City. The City shall be responsible for any damage to the School District's Building or equipment during use by the City which is caused by the City's negligence. The School District's equipment (such as kitchen equipment) shall be operated only by persons approved in advance by the Superintendent. The City may use or authorize the use of equipment in the School Building approved in advance by the Superintendent. The City shall make a reasonable effort to prohibit any persons from roaming the hallways or entering any offices in the School Building when it is supervising use of the School Building. Any damage to persons or property or the death of any person while the School Buildings or grounds are being used by the City caused by the City's negligence shall be the responsibility of the City. C) Other Areas of the School. The City's use of any other areas of the School Building or Property shall be approved in advance by the Superintendent. The City shall receive priority scheduling after school and school-affiliated groups, subject to the terms and conditions of this Agreement. Use of such areas ofthe School Building or Property will require supervision by School District employees except as provided in par. B above. Any costs incurred by the School District for such service will be paid by the City. D) The City shall not have any right to use the cafeteria, gymnasium and other parts of the School Building (except the Center) or the Property at any time while the Elementary School is in session. E) Notwithstanding any other provision of this Agreement, no usage by the City of the Center or any other part of the School Building or the Property shall at any time in any manner interfere with the operation of the Elementary School or the students attending the Elementary Schoo\. The decision of whether there is any interference with respect to the operation of the School or students shall be determined by the Superintendent. The City Manager shall immediately terminate any use of the Center or the School Building or Property which in any manner interferes with the operation of the Elementary School or the students attending the Elementary Schoo\. Written notice of such interference shall be provided to the City Manager by the Superintendent. 7.3 Operation and Maintenance. The City shall be responsible for operation of the Center, including general supervision ofthe Center. The operation of the Center shall be under the general administration of the City Manager. The School District shall have sole responsibility to provide usual custodial and maintenance services for the Center, and for paying all charges for utilities, including gas, water, electricity, and sewer. For the first year of operation, the City shall reimburse the School District $1,200 for natural gas, $2,000 for electricity and $2,800 for custodial services and supplies, Utility rates will be adjusted thereafter annually on June 30, based on the increase or decrease in the average consumer price index for all urban consumers (CPTIJ) measured for the twelve months ending December 31 of the previous year, as published by the U.S. Bureau of Labor Statistics. Custodial service rates shall be adjusted according to the annual percentage of increase in School District custodial staff total salary and benefit package. The City shall pay all long distance telephone charges for the telephone in the Center and maintain its own telephone system in the Center. The School District shall perform or contract to perform any repair or modifications to the Center. The City shall pay for the actual cost of labor and materials for any repair to the Center and for any modifications which the City requests and to which the School District agrees. The School District shall pay for any modifications to the Center which it requests and to which the City agrees. 7.4 School Policies The City acknowledges that the School District has certain policies governing the use of its facilities, including policies relating to health and welfare, which are designed for the benefit of the School District and all facility users. The City agrees that during the time it is operating and/or using the Center, such policies shall continue to apply. The Superintendent shall provide copies of all applicable policies to the City Manager prior to the commencement of this Agreement and shall also provide any new or modified policies to the City Manager from time to time during the term of this Agreement. The parties agree that no tobacco products, alcoholic beverages, drugs prohibited by law, or weapons (as defined in School District Policies) shall be allowed at the Center or in the School Building or on the School Property at any time. Any person or group in violation of the provisions of the preceding sentence shall thereafter be prohibited from using the Center or the School Building or the School Property. The City, while utilizing the School District Building or Property under this Agreement, shall make a reasonable effort to prohibit use of the Center or School Building or Property by (i) any person known by the City to be a registered sex offender under any federal or state law (ii) any person known by the City to have committed any act prohibited by Chapter 692A, Code ofIowa and (iii) any person known by the City to have been convicted of any other offense detrimental to children or who engaged in any act detrimental to children. 7.5 Building Security. In its use ofthe Center or of any other area ofthe school, the City shall abide by all security procedures established by the School District and published in a security manual provided to the City Manager and updated as necessary by the Superintendent. The Center shall be included in the alarm system for the total facility; the City shall be charged for any police alarm calls to the Center or School resulting from the City's use, unless that call is the result of the alarm system's malfunction. 8. ASSIGNMENT AND SUBLEASE PROHIBITED. This Agreement shall not be assigned by the City nor shall any part of the Center be sublet by the City. 9. DECLARATION OF DEFAULT AND NOTICE. In the event either party determines the other has defaulted in the performance of a material obligation hereunder, the aggrieved party may declare that default has occurred and give notice thereof to the defaulting party. Notice of default shall be given in writing, shall specify the nature of the default and the provision ofthis Agreement in default, and shall further specify what action is required of the defaulting party to remedy the default. The defaulting party shall have thirty (30) days from the date of its receipt of the notice of default to remedy the default. If the default has not been remedied, by the end of such thirty (30) day period, the aggrieved party may pursue its remedies as provided herein. Notwithstanding the foregoing, if the default is of such a nature that it is unable to be remedied within said thirty (30) day period, the defaulting party shall not be in breach of this Agreement so long as the defaulting party is making good faith efforts to remedy the default during said thirty (30) day period and remedies the default as soon thereafter as is reasonably possible. 10. REMEDIES UPON DEFAULT. Either party may, at its option, after declaring default and giving notice thereof as provided in paragraph-& 9 above, seek termination or specific performance of this Agreement. In order to obtain termination or specific performance of this Agreement, the party seeking such relief shall, after expiration of the thirty (30) day period following receipt ofnotice of default referred to in Par. 9, shall commence a proceeding for termination or specific performance in the Iowa District for Dubuque County. The petitioning party may seek termination and specific performance as alternative forms of relief and nothing in this Agreement shall be construed to require the petitioning party to elect its remedy at the time suit is filed. II. EFFECT OF TERMINATION. In the event oftermination ofthis Agreement for any reason, the City shall have a reasonable time to remove all of its equipment located in the Center. 12. MODIFICATION OF THIS AGREEMENT. Certain management and organizational issues addressed in this agreement may need to be revised based upon either the School District's or the City's experience during the initial year of operation or in subsequent years during the term of this agreement. Therefore, the Superintendent and City Manager will review the terms of this agreement at the end of each year to determine if any modifications should be made. No waiver, change, modification or amendment ofthis Agreement shall be binding upon either party unless such changes are proposed in writing and are approved by both parties in the same manner as this Agreement. 13. INDEMNITY AND HOLD HARMLESS. 13.1 School District Obligation. The School District hereby agrees to indemnify, defend and hold harmless the City, its officers, agents, and employees, or any other persons acting on its behalf, against any and all claims, suits, actions, debts, damages, costs, charges, and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the School District or its agents or employees in the performance or nonperformance ofthis Agreement. 13.2 City Obligation. The City agrees to indemnify, defend, and hold harmless the School District, its officer, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges, and expenses, including court costs and attorney's fee, and against all liability for the property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the City, its agents, employees, or any other persons acting on its behalf in the performance or nonperformance of this Agreement. 14. NOTICES. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: (1) If to the City: City Manager City Hall 50 West 13th Street Dubuque,IA 52001 (2) If to the School District: Superintendent of Schools Dubuque Community School District 2300 Chaney Road Dubuque, IA 52001 15. APPROVAL. 15.1 By the City Council. T~s AgJ;eement ~prove4 by the City Council of the City of Dubuque on th~M day of ~.f.vkJ, 2005. By the School District. This Agreement was approved by the Board of Directors ofthe Dubuque Community School District on the 14th day of November, 2005. 15.2 Dubuque Community School District By: ~~ Board of Directors 0u '/J(~~ vJoni S. Lucas, Secretary Board of Directors By: . Mayor ':1J By: ,;-/'7~74~/'/>';;P~L1. . f ,- City Clerk State of Iowa ) ) 55: County of Dubuque) On this 5th day of December, 2005, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa; a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council, and Terrance M. Duggan and Jeanne F. Schneider, acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. N ary Public In and for said State .....\A( S 5-~. ,,~ USAN M'. WINTER ~ . ~ COMMISSION NO.183274 '0 .,,- MY COMMISSION EXPIRES w 2/14/08 State of Iowa ) ) ss: County of Dubuque) On this 5th day of December, 2005, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Douglas J. Horstmann and Joni Lucas, to me personally known, who, being by me duly sworn, did say that they are the Board President and Board Secretary, respectively, of the Dubuque Community School District, Dubuque, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its Board of Directors, as passed on the 14th day of November, 2005, and Douglas J. Horstmann and Joni Lucas, acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. ~.'''. JOAN M. SIGWARTH " . f r Commission Number 737370 -0.> My Comm. Exp. OCT 27, 2008 Exhibit A to 28E Agreement between The Dubuque Community School District and The City of Dubuque, Iowa Legal descriptions of Dubuque Community School District properties which are the site of a new elementary school which includes a Neighborhood Resource Center within its perimeter. . North 2/5 of City Lot 446 in the City of Dubuque, Dubuque County, Iowa · North 1/5 of City Lot 479 and north Y, - NM 1/5 - of City Lot 479 in the City of Dubuque, Dubuque County, Iowa · Lot A of City Lot 446 in the City of Dubuque, Dubuque County, Iowa · Southerly 26 1/5 feet of the Middle One-fifth of Out Lot 446 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Survey of the Town of Dubuque, Iowa and the Northerly 25 feet of the Middle 1/5 of City Lot 446 in the City of Dubuque, Iowa according to the United States Commissioners' Map of the City of Dubuque, Iowa · North 36 feet of the South Middle 1/5 of Out Lot 446 and the Southerly 66 feet and 6 inches of the Northerly Three-fifths of Out Lot 447 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Town of Dubuque, Iowa · North 34 feet of the South 66 feet 8 inches of Out Lot 446 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Town of Dubuque, Iowa · South 32 feet 8 inches of Out Lot 446 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Town of Dubuque, Iowa · South half of the north middle one-fifth of Out Lot 479 and the north half of the middle one- fifth of Out Lot 479 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Survey of the Town of Dubuque, Iowa · South one-haIf of the Middle one-fifth of Out Lot 479 in the City of Dubuque, Iowa, according to the United States Commissioners' Map thereof · North one-half of the South one-fifth of Out Lot 479 and the South Middle one-fifth of Out Lot 479 in the City of Dubuque, Iowa, according to the United States Commissioners' Map thereof · South Y, of the South 1/5 of Out Lot 479 in the City of Dubuque, Iowa, according to the United States Commissioners' Map thereof 8 N ~ ~ '" il 'S :5 i):r 9 '" ~ ~? r- . 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