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Valentine Park 28E AgreementTHE CITY OF DuB E MEMORANDUM TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Valentine Park 28E Agreement with the Dubuque Community School District Leisure Services Manager Gil Spence is recommending execution of a 28E Agreement with the Dubuque Community School District for approximately 12 acres of land off Valentine Drive for the continued location of Valentine Park. I concur with the recommendation and respectfully request Mayor and City Council approval. ~~~. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager ~ MEMORANDUM ~' March 16, 2007 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager SUBJECT: Valentine Park 28E Agreement with the Dubuque Community School District INTRODUCTION The purpose of this memorandum is to request City Council allow the 28E Agreement with the Dubuque Community School District for development of Valentine Park to renew. DISCUSSION On October 13, 1997 the City entered into a 28E Agreement with the Dubuque Community School District for approximately twelve acres of land off Valentine Drive for development of Valentine Park. The agreement is for an initial ten-year period with the option of four additional terms of five years each. The agreement automatically continues unless the City gives twelve months written notice. City Attorney Barry Lindahl advised me that City Council action should be taken to allow the agreement to renew for the first five-year term. ACTION STEP The action requested is that the City Council approve renewing the 28E Agreement for the first five-year period. GDS:et attachment t 28E AGREEMENT BETWEEN DUBUQUE COMMUNITY SCHOOL DISTRICT AND CITY OF DUBUQUE, IOWA This Agreement is made and entered into as of the ~~ H day of October, 1997, 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 approximately twelve (12) acres of land in the City of Dubuque, Iowa legally described as follows: Lot 1 of the Subdivision of Lot 1 of Lot 1 of Lot 1 of McLean Heights which property is herein called the "Land". And a lot in the City of Dubuque, Iowa which is legally described as: Lot 4 in Block 2 of Marna Ridge Estates 2 in the City of Dubuque, Iowa, which property is herein called the ("Lot") The School District plans to construct a new elementary school on part of the Land and the City desires to use a part of the Land for a public park and recreation area. The City and the School District wish to enter into this Agreement pursuant to the provisions of Chapter 28E, Code of Iowa. THEREFORE, in consideration of the mutual agreements and covenants contained herein, the City and the School District agree as follows: DURATION OF AGREEMENT. This Agreement shall commence on the date set forth above and shall continue for a period often (10) years thereafter. Upon expiration of the initial ten (10) year term, the City shall have the option to continue this Agreement for 4 additional terms of 5 years each unless sooner terminated as herein provided. The Agreement will automatically continue unless the City gives 12 months written notice to the School District that it does not intend to continue the Agreement beyond the initial ten (10) year term or any extension thereof. If the School District elects to sell the Land and Lot prior to the expiration of the duration of this Agreement or an extension thereof, the City shall have the first right to purchase the Land and Lot for their fair market value. If the School District intends to sell the Land and Lot, written notice shall be provided to the City Clerk of the City. Within sixty (60) days after receipt of the written notice, the City shall give written notice to the Secretary of the School District of its intent to purchase the Land and Lot. If the City elects not to purchase the Land and Lot, this right to purchase shall cease and be of no force and effect whatsoever. Further, if the City elects not to purchase the Land and Lot, this Agreement shall cease and be of no force and effect whatsoever upon a date when the Land and Lot are sold to third parties. If the City elects to purchase the Land and Lot, the City and the School District shall jointly select a certified real estate appraiser who engages in the appraisal of real estate on a full time basis to provide an opinion of the fair market value of the Land and Lot. The selection shall be made within thirty (30) days after the City notifies the School District of its intent to purchase the Land and Lot. If either the City or the School District disagree with the appraisal, the City and the School District shall each select a qualified appraiser, who is engaged in the appraisal of real estate on a full time basis, conduct an appraisal of the Land and Lot. The three appraisers shall then meet and a decision of the two the three appraisers shall be final as to the fair market value of the Land and Lot. The closing of the transaction shall occur within sixty (60) days after the fair market value of the Land and Lot are so determined. Upon purchase by the City, this Agreement shall be null and void and of no force and effect whatsoever. 2. ORGANIZATION. The City and the School District will not create a separate entity to carry out the intent and purpose of this Agreement. The City Manager of the City shall be responsible for the administration of that part of the Land dedicated to public use, as hereafter described and referred to as the "Park Site", subject, however, to the right of the School District to use of such area for school purposes. The Superintendent of the School District shall be responsible for the administration and ongoing management and operation of that part of the Land dedicated to school purposes as hereafter described. The City Manager may appoint a representative to handle the day to day matters with respect to the administration of the Park Site. The 2 Superintendent may appoint a representative to handle the day to day matters with respect to the administration of the School Site and the School District's use of the Park Site. 3. 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 intends to construct an elementary school with adjoining parking facilities in the area identified on the attached plat (the "School Site"). The City intends to develop a public neighborhood park including a walkway, baseball field, playground equipment and other facilities on the Land in the area described on the attached plat ("Park Site"). The City shall have the right to name the Park Site subject, however, to the approval of the Board of Directors of the School District. 4. FINANCING THE PARK SITE. The City will provide the sum of $500,000 towards the development of the Park Site. The City will be solely responsible for and shall pay directly the costs related to the purchase, installation and maintenance of playground equipment, safety surfaces, picnic tables, park benches, outdoor basketball standards and similar types of park and recreation equipment, the estimated cost of which is $100,000.00. The School District will be responsible for the cost of site development improvements related to the Park Site including: grading, storm sewer, landscaping, planning, design, engineering, parking, site drawings, necessary retainage wall, walk paths, sidewalks, exterior property fencing, and fencing around the softball field. The City will pay the School District an amount not to exceed $400,000 for the above-listed items, but only as such costs relate to the Park Site. The City shall make payment to the School District within 30 days after payment by the School District to the contractors and other providers of materials and services to be furnished to the School District. The School District will be responsible for all other costs related to the development of the Park Site and School Site, except as otherwise herein provided. 5. ACCESS TO THE LAND. The access to the Land will be from Valentine Drive for pedestrian and vehicular traffic and from the Lot adjacent to June Drive for pedestrians. The specific access locations are shown on the attached plat. 6. DESIGN CONSTRUCTION AND USE. 6.1 Design. The School District contracted for the design of the Park Site and School Site. The plat attached hereto shows the proposed layout and location of the Park Site and School Site. The plat attached and the full enlargement thereof prepared by the Architect have been approved by the School District and the City. Any alterations to the Park Site or additional equipment or facilities shall be provided by the City with the approval of the School District. 6.2 Construction. The School District will secure bids for the site work pursuant to Iowa Law. The School District reserves the right to reject any and all bids. 6.3 Playground Development and Use. The Park Site and playground equipment will be useable by the School District for school related purposes and by the City as a neighborhood park. The School District will not construct any type of fence, wall or other enclosure around the Park Site that would physically separate it from the surrounding neighborhood without the prior written approval of the City; provided, however, that said approval shall not be unreasonably withheld, and further provided that, in the event the School District and the City are unable to agree on this issue, the decision of the School District regarding the same shall control. 6.4 Time of Use. The School District shall have the right to use the Park Site as herein provided. School District activities shall take precedence over any activities of the City if the elementary school is constructed on the School Site. The City's use of the Park Site shall take precedence when school is not in session, meaning late afternoon, evenings, weekends, and summer recess periods. If the elementary school is constructed, there may be a limited use of the Park Site by members of the public when school is in session provided that the use thereof does not interfere with the School District's right to use the Park Site for its purposes during the school day and further provided that the use by the public shall not interfere with school because of noise or other activities which may be conducted on the Park Site. 4 6.5 Schedule of Use. The use of the athletic fields on the Park Site will be scheduled by the City subject, however, to the prior privilege of the School District to use the Park Site for school activities. The administrators of this Agreement through their respective designees shall meet on asemi-annual or a more frequent basis to schedule activities for the Park Site, consistent with the provisions of this paragraph. The actual scheduling of times for use of the Park Site not dedicated to use by the School District will be the responsibility of the City. 6.6 School Policies. The City acknowledges that the School District has certain Board policies governing the use of its facilities. These include policies relating to health and welfare and are designed for the benefit of the School District and all facility users. The City agrees that during the time it is managing and/or using the site these Board policies will continue to apply and the School District will provide copies of all applicable policies to the City prior to the commencement of this Agreement and shall also provide any modified policies to the City from time to time throughout the term of the Agreement. The parties agree that alcoholic beverages will not be allowed on the Land. The City acknowledges receipt of applicable Board Policies. 7. OPERATION AND MAINTENANCE. 7.1 City Obligations. The City shall be responsible to operate and maintain the Park Site, including the grounds and equipment, and shall have the responsibility to provide general supervision of the Park Site during normal park operating hours. The City will provide personnel to supervise the use of the Park Site during periods of use by the City. The City will keep the Park Site (defined as an area 25 to 50 feet outside the school building the exact area to be agreed upon by the City Manager and the Superintendent of Schools when a school is constructed) in good repair, including: walking path, play equipment, trees and shrubs, turf (including grass cutting, fencing, and other items pertaining the Park Site). The City shall also remove snow from the walking path as the need is determined by the City. Parking area maintenance and repair will be cost shared with the School District. The playground equipment will be installed no later than September 1, 1998. 7.2 School District Obligations. The School District will be responsible for supervising the use of the Park Site and equipment 5 when the Park Site is being used by students attending the elementary school while school is in session. The School District shall maintain the area 25 feet around the exterior of the School, including: turf, trees and shrubs. The School District shall also maintain all walkway pertaining to use of the School and cost shares maintenance and repair of the parking area. The School District will be responsible for maintenance of all Land used for school purposes and will provide snow removal from the access to the Land from Valentine Drive. 7.3 Required Repairs. Any repairs required as a result of misuse of the Park Site shall be made by the party utilizing the site at the time the misuse occurred. 8. ASSIGNMENT AND SUBLEASE PROHIBITED. This Agreement shall not be assigned by the City nor shall any part of the Park Site 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 its material obligations 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 of the Agreement involved, and shall specify what action is required of the defaulting party to correct the default. The defaulting party shall have thirty (30) days from the date of its receipt of the notice of default to correct the default. If the default has not corrected, within such thirty (30) day period the aggrieved party may pursue its remedies as provided herein. Notwithstanding the foregoing, if 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 corrects the default as soon thereafter as is reasonably possible. 10. REMEDIES UPON DEFAULT. Either party may, at its opinion, after declaring default and giving notice thereof as provided in paragraph 9 above seek termination of this Agreement or specific performance of its provisions. In order to obtain termination of this Agreement or specific performance of its provision, the party seeking such relief shall, after expiration of the thirty 6 (30) day period following receipt of notice of default, commence a cause of action for such relief in the Dubuque County District Court. The petitioning party may seek termination and specific performance as alternative forms of relief in the same cause of action. Nothing in this Agreement shall be constructed to require the petitioning party to elect its remedy at the time suit is filed. 1 1. EFFECT OF TERMINATION. In the event of termination of this Agreement for any reason, the City shall have the right to remove all of its equipment that is located on the Park Site and restore the Site to its original condition. 12. MODIFICATION OF THIS AGREEMENT. No waiver, change, modification or amendment of this Agreement shall be binding upon either party unless in writing and signed by the affected party. 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, 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 of its agents or employees, or any other persons acting on its behalf in supervising the use of the Park Site by the School District pursuant to the terms specified in, this Agreement, or arising from any other use of the premises by the School District, its agents, employees, assigns, or any other person acting on its behalf, or arising from any other activity which the School Distrtict sponsors, suffers or allows to occur on the Park Site. 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, or those of its agents, employees, or any other persons acting on its behalf in the operation, maintenance, or general supervision of the public use of the Park Site pursuant to the terms of this Agreement, or arising from any other 7 use of the premises by the City, its agents, employees, assigns, or any other person acting on its behalf, or arising from any other activity which the City sponsors, suffers or allows to occur on the Park Site. 14. APPROVAL. 14.1 By the City Council. This Agreement was a~proved~ th Council of the City of Dubuque on the ~ day of , 1997. 14.2 By the School District. This Agreement was approved by the Board of Directors of the Dubuque Community School District on the '~ day of p~'aR~ , 1997. Notwithstanding the foregoing provisions of this Agreement, the City may use all of the Land and the Lot for public park purposes until such time as the School District decides to construct a building on the School Site. So long as the School District does not utilize the property for the construction of a new school, the City shall be solely responsible for the use, operation, maintenance and supervision of the Land and Lot and the School District shall have no responsibility therefor. The School District shall have no obligation under the provisions of paragraph 13 until such time as it commences use of the properly for the construction of a new school. Dated as of the day and year first above written. Dubuque Community School District B ~ ~~ y' ~~~: c~ ~.. President By ,~ ' Secre City of Dubuque, Iowa B Mayor By G~t~ City erk 8