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.
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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.
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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
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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.
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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
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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
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(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
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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 ~ ~~
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President
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Secre
City of Dubuque, Iowa
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Mayor
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City erk
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