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Imp. Proj. #662 GORDO:\ L. JE:\SE:\* WILLIAM G. SWA:\SO:\ STEVE:\ A. SO:\DRALL MARTl:\ P. MALECHA C. ALDE:\ PEARSO:\t JULIE A. THILL OF COU:\SEL LORE:\S Q. BRY:\ESTAD .R~Jl Propeny Law SpeL"i:::.list Certilied By The ~linnC'sota StJte B:1r AssoL"iation tQualiried ADR Neutral {;0d- JENSEN SWANSON & SONDRALL, P.A. Attorneys At Law 8525 EOINBROOK CROSSING, STE. 201 BROOKL YN PARK, l\IINNESOTA 55443-1999 TELEPHONE (763) 424-8811 0 TELEFAX (763) 493-5193 E-:\IAIL jss@jsspa.com March 31, 2000 ~ \~~ _ \- .\;t (~e->>~~ b 1 i\~ '. . .--:--- \~- \ ' \..n \,,-.5) ~~. ~ " ~ -l ; Jerry Gilligan Attorney at Law Dorsey & Whitney, LLP Pillsbury Center South 220 South Sixth Street Minneapolis, MN 55402 Re: Cooper High School Bond Issue Our File No. 99.11231 Dear Jerry: In follow up to our March 28, 2000 telephone conversation please find enclosed the following documents you requested: 1. Cooper Gym Expansion Development Agreement; and 2. Facility Use Agreement. Please contact me if you need any other information regarding these documents. Very truly yours, Steven A. Sondrall JENSEN SWANSON & SONDRALL. P .A. Enclosures cc: Kirk McDonald CNfl 11231.001.Gilligan LII.Wpd COOPER GYM EXPANSION DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered into on cOd- ~S; ,1999,byandbetween INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter referred to as "ISD 281 "), with its principal place of business located at Education Service Center, 4148 \Vinnetka A venue North, New Hope, MN 55427-1288, the CITY OF NKW HOPE, a Minnesota Municipal Corporation (hereinafter referred to as "City") and the ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope, a Minnesota municipal corporation (hereinafter referred to as "EDA") with their principal place of business located at 4401 Xylon Avenue North, New Hope, MN 55428. RECITALS \YHEREAS, the EDA and the City both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the Master Modification To Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994; and \YHEREAS, the purpose of the 1999 amendment is to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF Districts; and \VHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000.00 to ISD 281 for construction by ISD 281 ofa gym expansion and tennis court addition at Cooper High School, together with certain related site improvement and other work (collectively, the "Project"), all as will be more fully described and set forth in the plans and specifications to be mutually agreed to by the City, EDA and ISD 281 and, by subsequent amendment to this Agreement, attached hereto as Exhibit A (together with any and all exhibits, amendments, modifications and change orders thereto, collectively referred to herein as the "Plans"); and \VHEREAS, in consideration for this financial contribution by the City and ED A, ISD 281 agrees to enter into a Facility Use Agreement with the City, in the form attached as Exhibit B (the "Facility Use Agreement") permitting the City to have primary use of the gym expansion during certain periods when the gym expansion is not in use for school purposes as set forth in the Facility Use Agreement; and \VHEREAS, in further consideration for the City's and EDA's financial contribution, ISD 281 agrees to use the funds and construct the gym addition/expansion in accordance with the terms and conditions of this Cooper Gym Expansion Development Agreement. ::ODMA\?CDOCS\RIDSR\':3ltDO\S October 27. I'N'} ARTICLE I Definitions Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the terms defined): (a) "Advance" - In each instance, an advance made or to be made by the City and/or EDA to ISD 281 pursuant to Article II hereof. (b) "Archi tect" - Wold Archi tects and Engineers, which \\'ill administer the Construction Contract Documents. (c) "Comoletion Date" - June 1,2001 (unless ISD 281 shall extend such date in \\Titing, then the Completion Date shall be such later date), being the date of required completion of the Project. (d) "Construction Contract" - The construction contract to be entered into between ISD 281 and the General Contractor regarding the construction of the Project. ( e) "Construction Contract Documents" - The document or documents, including without limitation the Construction Contract and the Plans, which. together with any and all exhibits, . - . . amendments, modifications and change orders thereto, collectively form the contract or contracts between ISD 281 and the General Contractor concerning construction and/or rehabilitation of the Project. (f) "Contribution Amount" - This term shall have the mean1l1g ascribed to it 111 Section 2.01 below. (g) "Draw Requisition" - The draw requisition, in the form attached hereto as Exhibit C, which is to be submitted to the City when an Advance is requested, and which is referred to in Section 2.02 hereof. (h) "Eng:ineer" - KA.RGES-F AULCONBRIDGE, INC., a Minnesota corporation. (i) "Event of Default (Citv/EDA )" - One of the events of default specified in Section 6.01 (b) hereof. (j) "Event of Default (ISO 281)" - One of the events of default specified in Section 6.01(a) hereof. (k) "Facilitv Use Agreement" - This term shall have the meaning ascribed to it in the Recitals above. OD\I.\ PCDQCS?lDEK.! ':<<:'.11-$ O':lobcrlS. ['J'l'l 2 (I) "General Contractor" - The person or entity selected by ISD 281 to serve as the general contractor for the Project. (m) "InsDectinQ Official" - The City Building Official or City Engineer. Bonestroo, Rosene, Anderlik & Associates. (n) "Plans" - This term shall have the meaning ascribed to it in the Recitals above. (0) "Project" - This term shall have the meaning ascribed to it in the Recitals above. (P) "Real Estate" - The land upon which the Project is located, described on Exhibit D attached hereto, commonly known as Cooper High School located in the City of New Hope. (g) "Subcontractor" - Any person, other than the General Contractor, who shall be engaged to work on, or to furnish materials and supplies for, the Project. ARTICLE II Commitment to Make Contribution Section 2.01 Citv Contribution/Cost SharinQ. The City and EDA agree, subject to the conditions hereinafter set forth, to contribute to ISD 281 in an aggregate principal amount not to exceed Three Million T\.vo Hundred Fifty Thousand (S3,250.000.00) (the "Contribution Amount") for construction of the Project. ISD 281 shall not be obligated to repay the City or EDA any portion of this contribution if the Project is completed substantially in accordance with the Plans and the Facility Use Agreement is entered into by the parties, subject only to the obligation of ISD 281 to pay the Termination Fee in the event ofany termination of the Facility Use Agreement in accordance with Section 5.02(b) thereof. The total construction cost for the Project is estimated at S3,490,000.00. The parties \.vill share the Project costs as set forth in the Project Cost Sharing Schedule attached hereto as Exhibit E. Not withstanding this agreement to share construction costs, in no event will the City be required to contribute more than the Contribution Amount to the cost for the Project. ISD 281 also acknowledges and agrees that the City's costs for those items described in Section 2.01 (a) belo\.v will be paid from and included as part of the Contribution Amount. ISD 281 further acknowledges and agrees that the costs of I S D 281 for purchase of equipment described in Section 2.0 l(b) below shall not be paid from the Contribution Amount. The net effect of this cost sharing provision is that the entire Contribution Amount will not be available to ISD 28 I solely for construction costs, but will additionally include those costs described in Section 2.0 1 (a) below. (a) Citv's Costs. ISD 28 I acknowledges and agrees the City intends to sell bonds to finance the Contribution Amount. ISD 281 further acknowledges and agrees the City intends to make equipment purchases for (i) the concession room to be constructed as part of the Project, and (ii) a music/sound system to be installed as part of the Project. As herein agreed. these costs will be OD\IA.?CDOCS.RlDE~ ':~~::~1I.5 Ol;l..::b<.': 15. 1')')'1 ... .J paid from the Contribution Amount. The City's costs to be funded from the Contribution Amount are estimated as follows: (i) general engineering and legal costs - S25,000.00 (ii) bond issuance costs - $75,000.00 (including consultant and bond attorney fees) (iii) $10,000.00 all concession room equipment (coolers, freezers, cookers. pop machine, etc.) - (iv) music equipment/sound system - $5,000.00 The parties agree the referenced costs are estimated and that the actual costs incurred by the City will be controlling to determine the remaining Contribution Amount available to ISD 281 for construction costs. (b) ISD 281 Excluded Costs. ISD 281 further ackno\vledges and agrees that its costs for the following items will not be funded from the Contribution Amount: (i) Volleyball standards and nets (ii) All tennis nets, wind screens, poles, flags and bleachers for tennis courts (iii) All equipment needed for the ball fields including but not limited to bleachers and scoreboards Section 2.02 Draw Requisitions. Whenever ISD 281 requires an advance hereunder, \vhich shall be no more often than monthly, ISD 281 shall submit to the City a Dra\\' Requisition, duly completed and executed on behalf of the ISD 281, setting forth the information requested therein. Each Draw Requisition shall be certified as true and accurate by the Architect relative to the percentage ofvvork completed on which payment is requested. Each Draw Requisition with respect to construction items shall be limited to amounts equal to (i) the amount of work actually completed, plus (ii) the value of materials and equipment not incorporated in the Project, but delivered and suitably stored on or off the Project site in a manner reasonably acceptable to City, less (iii) any retainage required under the Construction Contract (in an amount not less than five percent (5%) of the contract amount, or portion thereof (except as to Draw Requisitions to fund the retainage in accordance with the Construction Contract)), and (iv) less prior Advances, to the extent such prior Advances consisted of prepayments of any of the foregoing. 00,'.1.'; ?CDOCS,it;DER....l~:'(Z1(r-' Oct coer 15. ]'N'J 4 At the time of submission of each Draw Requisition, ISD 281 shall submit to the City the following: (a) A waiver of mechanic's lien and/or materialman's lien, executed by the General Contractor in the amount of the lienable costs of the Project payable from the requested advance, tOQether with a waiver of mechanic's lien and/or materialman's lien, executed by e::lch Subcontractor, to which any portion of the immediately preceding Advance ("Prior Advance"). if any. was paid. covering liens for all work done and materials supplied for which disbursement \\'as made from the Prior Advance, in the form reasonably required by the City. (b) Such other supporting evidence as may be reasonably requested by the City to substantiate all payments which are to be made out of the relevant Draw Requisition and/or to substantiate all payments then made with respect to the Project. (c) Satisfactory evidence that all work then requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such jurisdiction, and that all then required certificates of occupancy and other approvals by municipal or other governmental authorities having jurisdiction have been issued. If on the date an Advance is desired, ISD 281 has performed all of its agreements and complied with all requirements therefore to be performed or complied with hereunder, and the Inspecting Official approves the relevant Draw Requisition, which approval shall not be unreasonably \vithheld, the City shall disburse such funds directly to ISD 281 on such date. If the Inspecting Official does not so approve the Draw Requisition, the Draw Requisition shall nevertheless be deemed approved in the event the City fails to notify ISD 281 in writing of the reason for such disapproval \vithin five (5) business day's of either the City's receipt of the Draw Requisition, Section 2.03 Citv InsDections. City shall have the right but not the oblig::ltion, and solely for its own protection, to make such inspections of the improvements as it deems advis::lble, ISD 281 acknowledges that it does not and shall not reply upon any inspections \vhich City may make pursuant hereto. City and its agents, inspectors, and employees may enter upon the Real Estate at any reasonable time to inspect the progress of construction. City is not responsible for seeing that the improvements are constructed in accordance with the Plans. that the impro\'ements contemplated under the Construction Contract Documents will be completed, that suftlcient funds \\'ill be available for completion. or that the design. engineering details, or architectural features are adequate or appropriate. City shall also not be required to provide architectural supervision of construction or any services related to construction quality control or judgment. All inspections by. or on behalf of. the City in accordance with this Section 2.03 shall be at the City's sole cost and expense, payment for which shall be in addition to, and not as part of. the amount of the Contribution Amount. Section 2.04 Advances \Vithout Receiot of Draw Requisition. Not\\ithstLJ.nding anything herein to the contrary. the City shall have the irrevocable right at any time and from time to time. 00\10\ reDoes' RlDE? .,l ~...;~It 5 O'~!cth:r 25 1')'1" 5 to apply funds which it agrees to advance hereunder to pay any and all of the expenses referred to in Section 7.04 hereof, all without receipt of a Draw Requisition for funds from ISD 281. ARTICLE III Conditions of Funding Section 3.01 Condition Precedent to Anv Advance. The obligation of the City to approve Advances hereunder shall be subject to the condition precedent that it shall have received the follo\ving on or before the date of the initial draw request: (a) The Plans. (b) A copy of the fully executed Construction Contract Documents, with such contracts being reasonably acceptable to the City. (c) A sworn construction statement duly executed on behalf ofISD 281, in form and substance reasonably satisfactory to the City, showing all incurred and anticipated costs and expenses for construction of the Project. (d) obtained. Evidence reasonably satisfactory to the City that all then required permits have been (e) Copies of, or binders for the delivery of, or certificates evidencing, the policy of fire and extended coverage and comprehensive general liability insurance reg uired under Section 5.01 (c) hereof, with all such insurance in full force and effect. (f) The Facility Use Agreement duly executed by ISD 281. (g) Any and all such other documents and agreements which City deems reasonably necessary to establish that there are sufficient additional funds, after giving effect to the City's Advance and in addition to the remainder of the Contribution Amount, to pay for the unfunded portion of the work remaining to be performed under the Construction Contract Documents. Section 3.02 Further Conditions Precedent to Anv Advance. The obligation of the City to make any Advance hereunder shall also be subject to the following conditions precedent: (a) No Event of Default (ISD 281) hereunder, or event which \vould constitute such an Event of Default (ISD 281) but for the requirement that notice be given or that a period of grace or time elapse, shall have occurred and be continuing. OD\I.-\PCDOCS' RlOERJ .:C 'Hr.'i O..:tob.:r 15. l'l')'J 6 ARTICLE IV Representations and \Varranties Section 4.0 1 ReDresentations and Warranties ofISD 281. ISD 2S 1 represents and warrants as follo\vs: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are within the powers of ISD 281 and do not violate any provision of la\v to which ISD 281 is subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are the legal, valid and binding obligations ofISD 281 enforceable against ISD 281 in accordance \vith their respective tem1S, (c) ISD 281 has title to the Real Estate. (d) The Project will be constructed substantially in accordance \vith the Construction Contract Documents, will be constructed entirely on the Real Estate, and will not encroach upon or overhang any easement right-of-way ofland not constituting part of the Real Estate. (e) The Project and the contemplated use thereof, both during construction and at the time of completion, will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record. (f) ISD 281 agrees that it will furnish from time to time such satisfactory evidence regarding the representations and warranties described herein as may be required by the City. Section 4.02 ReDresentations and Warranties of the City and EDA. The City and EDA do each represent and \van'ant as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are within the po\vers of the City and EDA and do not violate any provision ofla\v to which either or both the City and EDA are subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are the legal, valid and binding obligations of the City and EDA. as applicable. enforceable against the City and EDA, as applicable, in accordance with their respective terms. OD\IA"_PCDOC 5 ,RIOER...11:(~~ll,,5 0;':100':. !5. I'N'1 7 ARTICLE V Additional Covenants Section 5.01 Covenants ofISD 281. ISD 281 agrees that: (a) ISD 281 \vill cause construction of the Project to commence, and thereafter will cause the Contractor or Contractors to diligently proceed with construction of the Project according to the Construction Contract Documents, so that the Project can be completed by the Completion Date. ISD 281 further agrees to provide all funds required over and above the Contribution Amount to the extent such additional funds should be necessary to complete the construction of the Project. (b) ISD 281 will comply with the Uniform Municipal Contracting Law, as enacted in the State of Minnesota, in letting contracts and expending public funds on this project. Also ISD 281 will require the General Contractor to comply with all rules, regulations. ordinances and laws bearing on its conduct of work on the Project. (c) ISD 281 will provide and maintain at all times during the process of building the Project, and, from time to time at the request of the City, furnish the City with proof of payment of premiums on, the following insurance: (i) fire and extended coverage, in an amount equal to the lesser of the aggregate amount of the City's Advances or the full insurable value of the Project, \vith the City named as loss payee, and to include an overlap endorsement or rider covering the risk of any rehabilitation work; (ii) comprehensive general liability insurance. including the City as a named insured, with limits against bodily injury and property damage in an amount greater than or equal to the limits ISD 281's statutory immunity under l'.finnesota law; The policies of insurance required pursuant to Sections 5.01 (c )(i) and (ii) hereinabove (A) shall be in fom1 and content reasonably satisfactory to the City, and (B) shall be placed with financially sound and reputable insurers licensed to transact business in the State oflv1innesota. The policy of insurance delivered pursuant to Section 5.01 (c)(i) hereinabove shall contain an agreement of the insurer to give not less than ten (l0) days advance written notice to the City in the event of cancellation of such policy or change affecting the coverage thereunder. (d) ISD 281 will cause the General Contractor to maintain at all times during the process of building the Project, and, from time to time at the request of the City. cause the General Contractor to furnish the City with proof of payment of premiums on, the following insurance: (i) comprehensive general liability insurance. including the City and ISD 281 as a named insured. with limits (i) against bodily injury of not less than S 1 ,000,000, and (ii) against property damage of not less than 5250,000 (to OD\I,\'PCDOC"$'-?IDER.J ;.\C~li,- O'~lo~cr 1.~ 1 'I')" 8 accomplish the above-required limits, an umbrella excess liability policy may be used); and (ii) workmen's compensation insurance, with statutory coverage. The policy of insurance required pursuant to Section 5.01 (d)(i) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with a financially sound and reputable insurer licensed to transact business in the State of Minnesota. Acceptance by the City of an insurance policy delivered pursuant to Section 5.01 (d) (i) hereinabove shall not bar ISD 281 from requiring additional insurance which it reasonably deems necessary. (e) ISD 281 will pern1it the City, acting by and through its officers, employees and agents, to examine all books, records, contracts, plans, dra\vings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. (f) ISD 281 will furnish to the City, as soon as possible and in any event within ten (10) days after ISD 281 has obtained actual knowledge thereof, \\Titten notice of the occurrence of each Event of Default (ISD 281), or each event which \vith the giving of notice or lapse of time or both would constitute an Event of Default (ISD 281), which is continuing on the date of such statement. the statement of ISD 281 setting forth details of such Event of Default (ISD 281) or event and the action which ISD 281 proposes to take with respect thereto. (g) ISD 281 agrees that, without the prior written consent of the City, it will not agree or consent to any material changes in the Construction Contract Documents, or to any change orders thereto, individually exceeding 525,000.00 \vithout the consent of City, which consent will not be unreasonably withheld. Any change orders not exceeding $25,000.00, approved without the prior consent of the City will be presented to the City for review as soon as practicable after its approval by ISD 281; provided, however, the City shall have no right to object to the forn1 or content thereof. Section 5.02 Covenants of the Citv and EDA. The City and EDA agree that: (a) The City and EDA will furnish to ISD 281, as soon as possible and in any event within ten (10) days after either or both the City and EDA have obtained actual knowledge thereof. written notice of the occurrence of each Event of Default (City/EDA), or each event \vhich with the giving of notice or lapse of time or both would constitute an Event of Default (City/EDA), which is continuing on the date of such statement. the statement of the City and EDA setting forth details of such Event of Default (City/EDA) or event and the action which the City and EDA propose to take with respect thereto. 00\ 1 APCDOCS'-R.: 0 ER..J ";X~;!:5 OI.:I\Jocr ~5. 1'J't'J 9 ARTICLE VI Events of Default and Rights and Remedies Section 6.01 Events of Default. 281 ): (a) ISD 281 Events of Default. The follo\ving shall constitute Events of Default (ISD (i) ISD 281 shall fail to duly observe or perform any of the material terms. conditions, covenants, or agreements required to be observed or perfom1ed by ISD 281 hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of \VTitten notice of default to ISD 281. (ii) Any representation or warranty made by ISD 281 herein. or in any financial statement, certificate, report or Drmv Requisition furnished pursuant to this Agreement, or in order to induce the City to approve any Advance hereunder, shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty was made. (iii) The Project is materially damaged or destroyed by fire or other casualty and the loss, in the reasonable judgment of the City, is not adequately covered by insurance actually collected or in the process of collection. (iv) The construction of the Project is abandoned, or shall be unreasonably delayed beyond the Completion Date (subject to such extensions as may be permitted in accordance with the Construction Contract Documents), or shall be discontinued for a period of twenty (20) consecutive calendar day's, in each instance for reasons other than acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment or labor, governmental restrictions or any similar cause over \vhich ISD 281 is unable to exercise control. (v) The Project is not substantially completed in accordance with the Plans or Construction Contract Documents. (b) Citv/EDA Events of Default. The following shall constitute Events of Default (City/EDA): (i) Either or both the City and the EDA shall fail to duly obsen'e or perform any of the material terms, conditions, covenants, or agreements required to be obserwd or performed by either or both the City and the EDA hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of written notice of default to the City and the EDA. (ii) Any representation or warranty made b.y the City or EO.-\ herein, or in any financial statement, certificate, or report furnished pursuant to this Agreement shall prove to have OO'.!.-\ PCDOC5'RlDER'~':~C.ll1'5 OCl\ltl'.:r::'5.1'!'I'l 10 been untrue in any material respect or materially misleading as of the time such representation or warranty was made Section 6.02 RiQhts and Remedies. (a) RiQhts and Remedies Uoon Event of Default (LSD 281). Upon the occurrence of an Event of Default (ISD 281) and at any time thereafter until such Event of Default (ISD 281) is cured to the reasonable satisfaction of the City, the City may, at its option, exercise any and all of the following rights and remedies, alonQ with anv other rights and remedies available to it: ..... ...... .......-...... (i) The City may, by notice in \\Titing to ISD 281, refrain from approving Advances hereunder (but City may make Advances after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder), or terminate this Agreement; and (ii) The City shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including \vithout limitation reasonable attorneys' fees. (b) RiQhts and Remedies Uoon Event of Default (Citv/EDA) . Upon the occurrence of an Event of Default (City/EDA) and at any time thereafter until such Event of De fault (City/EDA) is cured to the reasonable satisfaction ofISD 281, ISD 281 may, at its option, exercise any and all of the rights and remedies available to ISD 281 under applicable law, including without limitation the following: (i) ISD 281 shall be entitled to terminate either or both this Agreement and the Facility Use Agreement: and (ii) ISD 281 shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. ARTICLE VII Miscellaneous Section 7.01 Insoections. ISD 281, Architect and the Engineer, shall be responsible for making inspections of the Project during the course of construction, and shall determine to their own satisfaction that the 'work done or materials supplied by the General Contractor and Subcontractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the applicable contracts with such General Contractor and Subcontractors. If any work done or materials supplied by the General Contractor or a Subcontractor are not reasonably satisfactory to ISD 281, the Architect andJor the Engineer, or if the General Contractor or a Subcontractor does not materially comply with the Construction Contract Documents in any material respect. ISD 281 will, upon discovery thereof. promptly notify the City in writing of such fact. It is expressly understood and agreed that the City and its Inspecting Official may. at the City's sole cost and expense (and without reduction of the amount of the Contribution Amount), conduct such OD~I.-\ PCOOCS"RIDER'.J ~:C~1r 5 0';100:r151'N'1 11 inspections of the Project as either may deem necessary for the protection of the City's interest, and that any inspections which may be made of the Project by the City or the Inspecting Official are made, and all certificates issued by the Inspecting Official will be issued, solely for the benefit and protection of the City, and that ISD 281 will not rely thereon. Section 7.02 Indemnification. (a) Indemnification bv ISD 28 I. ISD 28 I shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnify and hold harmless the City, its agents, sen'ants and employees from all claims, demands andjudgments made or recO\'ered against the City, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of the City or others (including loss of use) from anv cause \vhatsoever, arisimz out of, incidental to, or in connection with the construction of the . ~ Project, whether or not due to any act of omission or commission, including gross negligence, breach of statutory duty or \villful misconduct ofISD 28 I, the General Contractor or any Subcontractor, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of the City, its employees, servants or agents. The obligation of ISD 281 under this Section 7.02(0.) shall survive completion of the Project. (b) Indemnification by Citv/EDA. The City and EDA shall bear all loss, expense (including attorne;/s fees) and damage in connection with, and agrees to indemnify and hold ho.rmless ISD 281, its agents, servants and employees from all clo.ims, demands andjudgments made or recovered against ISD 28 I, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property ofISD 281 or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with any act of omission or commission. including gross negligence. breach of statutory duty or willful misconduct of the City or EDA. or its or their employees, servants or agents, excluding. however, any claims, demands or judgments due to acts of omission or commission of ISD 281, its employees, servants or agents. The obligation of the City and EDA under this Section 7.02(b) shall survive completion of the Project. (c) Limitations on Indemnitv. Notwithstanding Sections 7.02(0.) and 7.02(b) of this Agreement, ISD 281, the City and EDA shall, and do hereby, release each other from all claims, demands, liabilities, judgments and expenses to the extent subject to and in excess of each party's limits of statutory immunity under Ivlinnesota law. or to the extent otherwise cO\'ered. or required under this Agreement to be covered. by insurance. Section 7.03 Title to Project. Notwithstcll1ding anything to the contrJry in this Agreement or otherwise, and except only as othem'ise pro\'ided in the Facility Use Agreement. title to the Project. together with any and all rights and interests. legal. equitable or otnen\'ise. therein, shall at all times be \'ested solely with. in and to ISO 281. CD'.! \ ?CX(S RIDEi\,J~:(1'11"~ Ot'":cb.:t:5 ['PJ'; 12 Section 7.04 Fees. \\llether or not anv Advance shall be made hereunder. ISD 281 agrees -.; < '-' to pay all fees including inspection fees, appraisal fees, survey fees, recording fees, license and permit fees and title insurance and other insurance premiums relating to the Project. all of which fees, costs and expenses shall be subject to prorata reimbursement from the Contribution Amount. Section 7.05 Addresses for Notices. All notices to be given by either party to the other hereunder shall be in \\Titing and deemed to have been given when delivered personally or when deposited in the United States Mail, registered or certified postage prepaid, addressed as follows: To ISD 281 at: Thomas H. Walerius Independent School District 281 Education Service Center 4148 Winnetka Avenue North New Hope, rvrN 55427-1288 To the City and EDA at: Daniel 1. Donahue, City Manager City of New Hope 4401 Xylon Avenue North New Hope, Iv'fN 55428 or addressed to such party at such other address as such party shall hereafter furnish by notice to the other party. Section 7.06 Termination of this A9:reement. The obligations of all parties under this Agreement, but not under the Facility Use Agreement or any other agreement(s) attached hereto or incorporated herein by reference, shall cease upon (i) payment by City of the Contribution Amount in accordance 'with this Agreement, and (ii) City's certification that the construction of the Project has been completed in accordance \vith the Plans and Construction Contract Documents. Section 7.07 Time of Essence. Time is of the essence in the performance of this Agreement. Section 7.08 Binding Effect and AssiQ:nment. This Agreement shall be binding upon and inure to the benefit ofISD 281 and the City and their respecti ve successors and assigns. Section 7.09 Waivers. No waiver by the City or ISD 281 of any default hereunder shall operate as a waiver of any other default or of the same default on a future occasion. No delay on the part of the City' or ISD 281 in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. OD\IA,PCDOCS'RIDE?; ~ ;:-\::: ;Il\~ O;':lob~r :::5. II)'}'} 13 Section 7.10 Remedies Cumulative. The rights and remedies herein specified of each of the City and ISD 281 are cumulative and not exclusive of any rights or remedies which either or both the City and ISD 281 would otherwise have. Section 7.11 Governing: Law and Entire Ag:reement. This Agreement shall be governed by the laws of the State of Minnesota. This Agreement contains the entire agreement of the parties on the matters covered herein. No other agreement, statement or promise made by any party or by any employee, officer, or agent of any party that is not in \\Titing and signed by all the parties to this Agreement shall be binding. Section 7.12 Counteroarts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. IN \VITNESS \VHEREOF, the parties hereto have executed this Agreement, or caused it to be executed by their duly authorized officers or partners, as of the date first above \\Titten. CITY OF NE\V HOPE By ;t2L-~~~l I ts Mayor By Its Bj~/uJ!Jd4<< Its City Manager By Its By ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope -- /'- / (//' ./-Tf-.,f? / / r f(/t!~ c;"--7/{ ~ I ts :Pr~sident Bj /~-/~Jd~~ Its Executive Director OD\ lA' PCDOCS ..RJDER.J, 1:C: .\1)',.< OClObcr!5.1'J'J'J 14 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) r. The foregoing was acknowledged before me this c:i j day of LV d 1999, by W. Peter Enck and Daniel 1. Donahue, the Mayor and City Manager. respectively, of the City of New Hope, a Minnesota municipal corporation, on l)~half of said municipal corporation. /: - ~ (;j'c/,*Inlf Notary Public VALERIE J. LEONE NOTARY PUBLIC - MINNESOTA My Commission Expires January 31, 2000 STATE OF MINNESOTA ) ) ss. COUNTY OF HEi\TNEPIN ) /A The foregoing \vas ackno\vledged before me this ~y day LLC 'C 1999 by W. Peter Enck and Daniel J. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, a Minnesota municipal corporation, on behalf of said corporation. VALERIE J. LEONE NOTARY PUBLIC - MINNESOTA My Commission Expires January 31. 2000 " fYLu STATE OF IvII1\lNESOTA ) ) ss. COUNT'{ OF HENNEPIN ) ~egOing was acknowledged before me t is I!-tt ~~>?zMd-and 7' . ' respectively, of Independ~nt School , on behalf of said ~ ~ ~' :.<X;.L Not Public daYOf~ ,1,999 the . ~and District 281. a Minnesota I 'lr Il1J JUDITH D. LUND I _<1. NO:~;~r PUBliC-MiNNESOTA ,'- ~,~' '~~/ My Ccr..-.">,,,,~ ~t~res Jan. 31. 200Q . f/J~ OD~IA' PCDOC5',RJDE~:': 'l~:!'(I' 5 Oc::ob:r:!5. It}')'; 15 EXHIBIT "A" Plans [To be provided by City, EDA and ISD 281] ':OD~I"""'?CDOCS'RfDER'..n ~~ )lr,;i October 15. ")'}'} EXHIBIT "B" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Form of Facility Use Agreement FACILITY USE AGREEMENT AGREEMENT made thi~5" day of (!)d , 1999 by and between the CITY OF NE\V HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter "ISD 281 "). RECIT ALS \VHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gymnasium, on real property legally described on Exhibit A attached hereto, \vhich addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all anlenities therein, hereafter referred to as the "Facility"); \VREREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); \VHEREAS, the parties desire to provide for joint use of the Facility; \VHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1.02 Term. This Agreement shall be for a term offorty (40) years commencing on the date of substantial completion of the Facility and expiring on June 30, 2040. ;"ODMr\ \PCDOCS\R lDER \.D:<2;<;o]\5 Cktobc:r 25. 19?'} 1.03 Use and Scheduling:. The facility shall be used by the parties as follows: a. until 5:30 p.m. ISD 281 \vill have primary use of the Facility on school days from 6:00 a.m. b. The City \vill have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably \vithheld if time is available. d. The City will supervise the Facility when it has primary use of the Facility and shall hire and pay any building attendant necessary to perform such supervision. Supervision shall not include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the City when the Facility is under City use (the "Principal Activity"), together with supervision of any and all uses or activities associated with, or related to, such Principal Activity, including without limitation supervision of such interior or exterior common areas and parking areas as may be used by employees or invitees of the City' in connection with such Principal Activity. However, the City will be responsible for cleaning the concession room area and equipment after each use by the City. However, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of general routine cleaning of the facility. Also, ISD 281 \vill dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. time. e. The City will have reasonable access to the Facility during its primary use f. ISD 281 will pern1it the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281's reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it will not be permitted use of these areas without the written consent of the City. schedule. h. The City and ISD 281 shall meet at least annually to review the Facility use 1.04 Alcohol and Tobacco Polin'. The Facilitv shall be treated as "school g:round" as - ~ contemplated by the alcohol control provisions oftv1irm. Stat. S 624.701; that ISD 281 's alcohol and OD\IA.PCDOCS.RIDER'..,Il~15'r5 O("lct::.:r ~5 1'1'/'1 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; and that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and I\ilaintcnance of Facility 2.01 Ownershio. ISD 281 is the owner of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Uokeeo. ISD 281 will be responsible for all maintenance, repairs. replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. However, the City ackno\vledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03 (g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1.03(g) of this Agreement. 2.03 OoeratinQ: Cost and Utilities. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks no\v or hereafter embraced by "extended coverage," so called. However, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each party will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Minn. Stat. S 466.04. ISD 281 will be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 281's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bv ISO 281. ISD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses. including attorney's fees, arising from the ISD 281's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees. or from an.y breach or default by ISD 281 of this Agreement. except to the extent caused bv the Citv's Qross neQliQence or \villfu! misconduct. In the event any action or oroceeding shall be '" .. '- ..... ....... "" J. .... OD\l.';'PCD<'_,CSR:DER .,l ~:';:~'15 0<:100..:[ ! ~ "1'1'1 3 brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 28l's expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, ~ . arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City of this Agreement, except to the extent caused by the ISD 281's gross negligence or \villful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Rcsolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall 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; Drovided, however, all such administrative levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute which also involves a material breach authorizing the nonbreaching party to exercise its rights under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance with this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Tcrmination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement, the party alleging the breach may, in addition to, and not in lieu of. any other remedies available to such party under Section 4.01 of this Agreement or otherwise under applicable law, 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 deL very 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 OD\I.~?CD<"X'S'.RlDER...":X~5'J' 5 OCt{'b.:~ 15. "J'!" 4 than ten (l0) days from the date of such \\Titten notice. The Superintendent for the District or his or her designee(s) and the City Manager for the City or his or her designee(s) shall attend such meeting. Ifthe breach continues for more than thirty (30) 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. 5.02 Termination Without Cause. This Agreement may be terminated \\'ithout cause as follows: a. Either party may terminate this Agreement prior to the award of contract to construct the Facility by giving written notice of such termination to the other. ISO 281 shall give the City ten (10) days written notice of its intent to award a contract. If this Agreement is terminated in accordance with this Section 5.02(a), any and all actual out-of-pocket costs incurred by the non-terminating party shall be paid by the terminating party. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance written notice of termination (an "Early Tem1ination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount, inclusive of interest calculated at a fixed rate of interest equal to five percent (5%) per annum, in accordance with the T ennination Fee Schedule attached hereto as Exhibit C (the "Termination Fee"). Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all rights to specific perforn1ance, damages, or any other remedy available in equity or in la\v. ARTICLE VI Miscellaneous 6.0 I Buildimr Securitv. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together \vith any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement, ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section 1.03(b) of this Agreement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facilitv, including without limitation securing all exterior doors to the ~ ~ - ~ ~ Facility. The procedures and requirements applicable to the issuance of keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance with such reasonable rules and regulations as ISD 281 may issue from time to time. The City hereby agrees to indemnify and defend ISO 2S 1 from and against any and all claims, demands, liabilities, and expenses, OD\IA'_PCDOCS:,RlDER..J '\.'\Z5'r.- O~cb>.':'t ~3. 1']'1'1 5 including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationshio of Parties. The parties hereto agree that it is their intention hereby to create only the relationships oflicensor and licensee, and no provision hereof. or act of either party hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assis:nment. Neither party may assign its rights or obligations under this Agreement without the prior \\Titten consent of the other party. 6.04 Bindins: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective pem1itted successors and assigns. 6.05 Severabilitv. If any provlSlons of this As:reement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 Governins: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. :.OD:-'IA'PCDOCS"R! D CR_.J1;<1 ~5'M Oc.cbcr15. I')']'} 6 IN \VITNESS WHEREOF, the parties have subscribed their names as of the day and year first above written. INDEPENDENT SCHOOL DISTRICT NO. 281 By Its By Its CITY OF NE\V HOPE '; By 5i/~L'ft,,:4 Its Mayor By ~~~:Jdc'J;uJ~. Its City Manager STATE OF MI1\TNESOTA ) ) ss. COUNTY OF HENNEPIN ) 1he fore,going instrument \vas acknowledged before me this~J day of ((7 (i /-C , 1999, by /U f1 JJ.J,_ (II ( /( and J),'flfI'L J"LJcnrJUf.- , respectively the Mayor and City Manager of the City ofNe\v Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. VALERIE J. LEONE NOTARY PUBLIC - MINNESOTA My Commission Expires hn'J~ry 31. 2000 ;;ft1u;j!jEJIL Notary Public ::OO.\IA~?CDOCS\RIOER',~ ~~13<}\!I OC1occr 25. l'J'rJ 7 STATE OF MINNESOTA ) ) ss. COUNTY OF HEi\TNEPIN ) before me thi~~' of ~ , 1999 by , the -;k.~ ~ ~and School District No. 281 on behalf of said I II JUDITH D. LUND I NOTARY PUBLIC. MINNESOTA My Ccmffilssion Ex>ires Jan. 31, 200Q . ; OD\tA'.?CDOCS',RIDER\':.~:(~5'J'..~ Ck:lobcr 15. I'}')') Not~~ IA~ 8 :=OO!'.V.. \PCDOCS\R1DER\..1 )82 5Y'...'i OaobC'2.5.lm Parcell: Parcel 2: EXHIBIT A TO FACILITY USE AGREEMENT Legal Description East Yz of the Northwest ~ of the Southeast ~, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. West Yz (W Yz) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the \Vest Yz (W Yz) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21; and (b) That part of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Tovmship 118, Range 21, lying North of 47th Avenue North and lying between a line dravVIl 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in Lynncroft Addition. EXHIBIT B TO FACILITY USE AGREEMENT FLOOR PLAN ~~ 1I32Y - 1'-OY TOP A.'lK.N3 ," .....~ EXlS TNG , <^ " , ; ',.:~ < <~ 1 f: .. " . ~ " );:. ..,,,~~ ~~ ~ I $ ~ :. - i~~:ml~.JJ=~:~"-lrc:ST ,~ V~: "..d il :~ ~ri@ ~, J j [::L.,~~i "rom 0CAm' ~ STOAAGE ::ODMA \?CDOCS\RfDER\-'lIt25'1\S ().;:-tooa 15. I'N';I Site Plan -........- t) Q Q .. ~ o (.) I I I L _ .E~ 1_ _ -1 I I I I I I I I r-----' I I I I I' I I!C -...'- ::: < ~ I I I L _ ~~ 2_ _ -1 I r-........ I I r \ I I I I t r.-----, I I I I ~ Q :; g <5 (.) ~ c I: o Ii( EXHIBIT C TO FACILITY USE AGREE1'vfENT Termination Fee Schedule TERMINA TrON TERMTNA TION TERMTNATION TERMTNA TION DATE FEE DATE FEE June 30, 2001 $3,223,096 June 30, 2021 $2,289,008 June 30, 2002 $3,194,847 June 30, 2022 $2,214,055 June 30,2003 $3,165,185 June 30, 2023 $2,135,354 June 30, 2004 S3,134,040 June 30, 2024 $2,052,717 June 30,2005 S3,101,338 June 30, 2025 $1,965,949 June 30,2006 S3,067,001 June 30, 2026 S 1 ,874,842 June 30,2007 S3,030,947 June 30, 2027 S 1,779,181 June 30, 2008 S2,993,091 June 30, 2028 SI,678,736 June 30, 2009 S2,953,341 June 30, 2029 $1,573,268 June 30,2010 S2,911,604 June 30, 2030 S 1 ,462,528 June 30, 2011 S2,867,780 June 30, 2031 S 1 ,346,250 June 30, 2012 S2,821,765 I June 30, 2032 $1,224,159 June 30, 2013 $2,773,449 June 30,2033 S 1 ,095,962 June 30,2014 $2,722,718 June 30, 2034 S961,357 June 30, 2015 $2,669,450 June 30, 2035 $820,020 June 30, 2016 S2,613,518 June 30, 2036 S671,617 June 30,2017 S2,554,790 June 30, 2037 S515,794 June 30,2018 $2,493,126 June 30, 2038 S352,180 June 30, 2019 S2,428,378 June 30, 2039 S 180,385 June 30, 2020 S2,360,393 June 30, 2040 $0.00 ::OD;\'\.... \P'CDOCS-RIDER \..4 JX2Y-i\."i 0c1000'15. 1 <rrJ EXHIBIT "C" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Form of Draw Requisition ,20_ City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Attention: Daniel J. Donahue City Manager Re: Cooper High School Gymnasium Expansion, Tennis Court Construction and Related Work/Payment Request No._ Dear Mr. Donahue: The attached invoices, summarized on Exhibit A attached hereto, represent work performed in connection \vith the "Project", as that term is defined in that Cooper Gym Expansion Development Agreement, dated , 1999, by and between Independent School District No. 281 and the City of New Hope. The total an10unt of the requested payment equals Please submit the City's payment to my attention at the District. Please call me at 504-8037 if you have any questions. Thank you. Sincerely, INDEPENDENT SCHOOL DISTRICT NO. 281 By Thomas H. Walerius Senior Associate for Business Services ::ODMA \PCDOCS..=tIDER,4 )l!;2:i1i'.5 Octobc::' 25. 19')<) EXHIBIT A TO FORM OF DRAW REQUISITION Cooper High School Gymnasium Expansion, Tennis Court Construction and Related \Vork Payment Request No._ Date: ,2000 INVOICE INVOICE INVOICE TOTAL VENDOR NO. DATE AMOUNT BY VENDOR TOTAL: S ::OD~fA\PCDOCS\RIDER\43 8230\.5 Oactx:r 25. !9'J<} EXHIBIT I'D" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Legal Description of Real Estate Parcell: East 'ii of the Northwest ~ of the Southeast ~, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. Parcel 2: West 'ii (W 'ii) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the West 'ii (W 'is) of the Northeast ~ (NE ~) of the Southeast ~ (SE 1/4), Section 7, Tow11ship 118, Range 21; and (b) That part of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, TO\\l1Ship 118, Range 21, lying North of 47th Avenue North and lying between a line drawn 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in Lynncroft Addition. ::ODMA \PCOOCS,JtlDER \4382:;0\5 October 25. I '}'}t} EXHIBIT "E" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Project Cost Sharing Schedule The following table provides an allocation of Project-related costs as between the City and ISD 281 : PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF \VORK CITyl ISD 2812 Construction: 48 Site Construction, Parking and Drainage, 100% 0% Perimeter Walks, Plantings along 47th A venue, Utilities (Sanitary Sewer, Storn1 Sewer, Water and Gas), and Related Work . Accessible Route to Ballfields, and 30% 70% Related Work, Tennis Court Construction (including construction of 7 courts and related fencing, screen planting, access paths and drainage work), and Related Work . Gymnasium Facility (including general 100% 0% building construction, mechanical and electrical work), and Related Work IThe City's percentage ofresponsibility is as shown in this table subject only to the requirement that the City's aggregate percentage of responsibility for the entire Project shall in no event exceed the Contribution Amount. 2ISD 281's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage of responsibility as set forth in this table, which exceed the Contribution Amount. ::ODMA \PCOOCS\R.IDER\41R2Jmj October 1.5. 199'1 EXHIBIT "E" TO COOPER GYM EXP ANSI ON DEVELOPMENT AGREEMENT Project Cost Sharing Schedule The following table provides an allocation of Project-related costs as between the City and ISD 281 : PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF \VORK CITyl ISD 2812 Construction: e Site Construction, Parking and Drainage, 100% 0% Perimeter Walks, Plantings along 4Th A venue, Utilities (Sanitary Sewer, Storm Sewer, Water and Gas), and Related \V ork e Accessible Route to Ballfields, and 30% 70% Related Work, Tennis Court Construction (including construction of 7 courts and related fencing, screen planting, access paths and drainage work), and Related Work €il Gymnasium Facility (including general 100% 0% building construction, mechanical and electrical work), and Related Work IThe CiJy's percentage of responsibility is as shown in this table subject only to the requirement that the City's aggregate percentage 6fresponsibility for the entire Project shall in no event exceed the Contribution Amount. 2ISD 281's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage of responsibility as set forth in this table, which exceed the Contribution Amount. ::OD~1^\PCDOCS\RIDER\4JX2J()\5 October 25. 19<J<J PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF \VORK CITY ISD 281 Furniture, Fixtures and Equipment: . All Related Furniture, Fixtures and 100% 0% Equipment (including all furniture, signage, sound system, concessions equipment, and other miscellaneous equipment) Related Fees and Costs: Ell All Related Fees and Costs (including all 100% 0% AME, Commissioning, Geotechnical, Plan Review, Bid Advertisement, City Legal and General Engineering, Structural Inspection, Construction Testing, Bond, Insurance, Project Contingency and Project Financing work, fees and costs) : :OD~1.-\',.PCDOCS\RIDER\US:! :Hl\5 October 25. I 'P)') 2 FACILITY USE AGREEMENT AGREEMENT made this4S::. day of ((jet: , 1999 by and between the CITY OF NE\V HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of l'v1innesota (hereinafter "ISD 281"). RECITALS WHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gymnasium, on real property legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); \VHEREAS, the New Hope Economic Development Authority, a rl/finnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"): WHEREAS, the parties desire to provide for joint use of the Facility; WHEREAS. this Agreement sets forth the rights and obligations of the oarties relating to the ' ...... ...... '- ..I. '-' joint use of the Facility; NOW, THEREFORE, the parties agree as follo\vs: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 28 I shall jointly use the Facility in accordance \vith the terms and conditions set forth herein. 1.02 Term. This Agreement shall be for a term offorty (40) years commencing on the date of substantial completion of the Facility and expiring on June 30, 2040. OD~.!...?CDOCS RlDER l ;:(15'1'~ O:;:tobcr:!5. \')')') 1.03 Use and Scheduling. The facility shall be used by the parties as follo\vs: a. until 5:30 p.m. ISD 281 \vill have primary use ofthe Facility on school days from 6:00 a.m. b. The City \vill have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably \vithheld if time is available. d. The City will supervise the Facility \vhen it has primary use of the Facility and shall hire and pay any building attendant necessary to perform such supervision. Supervision shall not include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the City \vhen the Facility is under City use (the "Principal Activity"), together with supervision of any and all uses or activities associated with, or related to, such Principal Activity, including without limitation supervision of such interior or exterior common areas and parking areas as may be used by employees or invitees of the City in connection with such Principal Activity. Ho\vever, the City will be responsible for cleaning the concession room area and equipment after each use b.y the City. However, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of general routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. time. e. The City will have reasonable access to the Facility during its primary use f. ISD 281 will permit the City, and its employees, agents and invitees to use the internal road\vay system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281 ' s reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it will not be pem1itted use of these areas without the written consent of the City. schedule. h. The City and ISD 281 shall meet at least annually to re\'ie\,; the Facility use 1.04 Alcohol and Tobacco PoliCY'. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions offvlinn. Stat. S 624.701; that ISO 281 's alcohol and OD.\I.-\?CDOCS'RlDE?. ,~'~:5T,~ O~!c:o.;r 15 J'N" 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; and that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II O,ynership and l\Iaintenance of Facility 2.0 I OwnershiD. ISD 281 is the owner of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 lvIaintenance and UDkeep. ISD 281 will be responsible for all maintenance, repairs, replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. Ho\vever, the City acknowledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section l.03(g) of this Agreement. 2.03 Ooeratin9: Cost and Utilities. The School District \vill be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. HO\'iever, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the \vest storage area. Each party will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Minn. Stat. ~ 466.04. ISD 281 will be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 281's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bY' ISD 281. ISD 281 hereby' indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees. arising from the ISD 28l's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors. agents, or invitees. or from any breach or default by ISD 281 of this Agreement, except to the extent caused by the City's gross negligence or willful misconduct. In the event any action or proceeding shall be OD\IA?CDOCS'RJOER ':~~;5'J'.' O;,:wb.;r ~~, I')'!'I ..., .J brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 28l's expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act pern1itted, or any omission to act, in or about the Facility by the City, or its officers, employees. independent contractors. agents. or invitees. or from any breach or default by the City of this Agreement, except to the extent caused by the ISD 281's gross negligence or \villful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISO 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall be referred to the next administrative level of the respectiw bodies who shall attempt to settle the dispute. Such referral shall continue to succeeding levels of the respective bodies until all administrati\'e levels have been exhausted; provided. however, all such administrative levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute \\'hich also involves a material breach authorizing the nonbreaching party to exercise its rights under Section 5.01 of this Agreement. the nonbreaching party shall be entitled. but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resol ved in accordance \vith this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement, the party alleging the breach may, in addition to. and not in lieu of, any other remedies available to such party under Section 4.0 1 of this Agreement or otherwise under applicable 1m-\', seek to terminate this Agreement by giving the breaching party written notice specifYing the nature of the breach. If the breach is not remedied \\'ithin thirty (30) days of the date of de!i\'ery 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 so.id notice. the po.rty alleging the breach may send the breaching po.rty a second written notice setting forth the time, place and date ofa 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 00\1.\ reDoes R:DER. ..l~,~:5'J( O~l,)t;!.:r~' l'i'I" 4 than ten (l0) days from the date of such \\Titten notice. The Superintendent for the District or his or her designee(s) and the City fvlanager for the City or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty (30) 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. 5.02 Termination Without Cause. This Agreement may be terminated \\'ithout cause as follows: a. Either party may terminate this Agreement prior to the a\vard of contract to construct the Facility' by giving written notice of such termination to the other. ISD 281 shall give the City ten (10) days written notice of its intent to award a contract. If this Agreement is terminated in accordance with this Section 5.02(a), any and all actual out-of-pocket costs incurred by the non-terminating party shall be paid by the terminating party. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement. effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance written notice of termination (an "Early' Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount. inclusive of interest calculated at a fixed rate of interest equal to five percent (5c;"o) per annum, in accordance with the Termination Fee Schedule attached hereto as Exhibi t C (the "T ermination Fee"). Said Termination Fee shall be the City's sole and exclusive remedy for the Early Tem1ination, and the City hereby waives any and all rights to specific performance. damages. or any other remedy available in equity or in law. ARTICLE VI Miscellaneous 6.0 I Building: Securit\.. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility. together with any lockable interior doors thereto. if any. for \\'hich the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during \vhich ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement. ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section I.03(b) of this Agreement. the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility. including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of keys and/or security cards. and to the opening. closing and securing of the Facility. shall be in accordance \\'ith such reasonable rules and regulations as ISO 281 may issue from time to time. The City hereby agrees to indemnify and defend ISD 281 from and against any and all cl::1ims. demands. liabilities. and expenses. 00\1.-\ peDOCStUDE? J"C~'r;' Uc:oC"r ~5 I'I'}'} ) including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationshio of Parties. The parties hereto agree that it is their intention hereby to create only the relationships of licensor and licensee, and no provision hereof. or act of either pCl.rty hereunder, shall ever be construed as creating the relationship of lessor and lessee. principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assig:nment. Neither party may assign its rights or obligations under this Agreement without the prior \\Titten consent of the other party. 6.04 Binding: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective pem1itted successors and assigns. 6.05 Severabilitv. If any provISIOns of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 GoverninQ: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. OD\1'\ PCDOCSRIDEit .J,;:-C5'J'~ O~cbC'l"~5 I')')') 6 IN \VITNESS \VHEREOF, the parties have subscribed their names as of the day and year first above \vritten. INDEPENDENT SCHOOL DISTRICT NO. 281 , , By Its By Its CITY OF NE\V HOPE "~ .. /' <), ~ / By /;.--..a 2.~t~ Its Mavor _ By, l" ~~,llll~L, Its Ci ty lvlanager STATE OF MI1\TNESOTA ) ) ss. COUNTY OF HEN"NEPIN ) T 1e foregoing instrument \vas acknowledged before me thi~ day of ((r!.-l , 1999, by /. I " ~ anddJulrf L J 1)(, IC.)/I/(, respectively the [vlayor and City I'vlanager of the City of New Hope, a I'vlinnesota municipal corporation. on behalf of the corporation and pursuant to the authority granted by its City Council. t~ ,;t:PLL I VALERIE J. LEONE NOTARY PUBUC . MINNESOTA My Commission Expires January 31. 2000 Notary Public . -OD.'IA'PCDOCS R !DER"."!; -'\1~'rj O':lob:;r ~5 1')'1') 7 STATE OF MlN"NESOT A ) ) SS. COlJNTY Of HEN"NEPIN ) S$'wasaCknOWledgedbeforem. .e.this;tdaYOf ~~,1999 by . '~and 7'~ K~ .' the~ ~f1nr1 \ of Independent Schog1 DIstrict ':)<;0. 281 ..Grr beh~' m said independent school district. (' /~/yXuJ!. N ota~Ublic {/ CD.\IA'?CXoC5 ?.:DER ..; l:C~.r_~ OC100~ :_~. 1''':<1 8 Parcell: Parcel 2: : :OD!\.V. \PCDOCS\RIDER\..l J S2S'J\'s Oclober 2.5. 199<J EXHIBIT A TO FACILITY USE AGREEMENT Legal Description East ~ of the Northwest ~ of the Southeast ~, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. West ~ (W ~) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the West ~ (W ~) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, To\vnship 118, Range 21; and (b) That part of the Northeast ~ (NE l~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, lying North of 47th Avenue North and lying between a line dravln 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in Lynncroft Addition. EXHIBIT B TO FACILITY USE AGREEMENT FLOOR PLAN t'I~ 1132" . 1'-0" TO P AflKl'.Kl ~ ,. '=; .... ~~. .~ " :. ~ 'Co; EXlST"tiO ~ ~ "'" ~: .v ~ <. < ) {o.... L-.. );:. :'.. " .; ~ ..;. TO TE:1NS CQ(..qjS ODMA \PCDOC S';UDER \4 3K2$'J\5 October 25. II}<.}'J Site Plan I I I L _ .E~ 1_ _ ..J I I I I I I I I r------, I I I I II!C ;r; < ~ " ~ c I I I L _ ~~ 2_ _ ..J I I I I I I I I r.------, I I I I ~ Q 51 ~ o <.> E EXHIBIT C TO FACILITY USE AGREEMENT Termination Fee Schedule TERMINA TION TERMINATION TERMINATION TER~vfINA TION DATE FEE DATE FEE June 30, 2001 S3,223,096 June 30,2021 S2.289,008 June 30, 2002 $3,194,847 June 30, 2022 $2,214,055 June 30, 2003 $3,165,185 June 30, 2023 $2,135,354 June 30, 2004 $3,134,040 June 30, 2024 $2,052,717 June 30, 2005 S3,101,338 June 30, 2025 SI,965,949 June 30, 2006 S3,067,001 June 30, 2026 $1,874,842 June 30, 2007 $3,030,947 June 30, 2027 SI,779,181 June 30, 2008 $2,993,091 June 30, 2028 Sl,678,736 June 30, 2009 S2,953,341 June 30, 2029 $1,573,268 June 30, 2010 S2,911,604 June 30, 2030 S 1 ,462,528 June 30, 2011 $2,867,780 June 30, 2031 $1,346,250 June 30, 2012 $2,821,765 June 30, 2032 Sl,224,159 June 30, 2013 S2, 773,449 June 30, 2033 SI,095,962 June 30, 2014 S2,722,718 June 30, 2034 S961,357 June 30, 2015 S2,669,450 June 30, 2035 S820,020 June 30, 2016 S2,613,518 June 30, 2036 S671,617 June 30, 2017 $2,554,790 June 30, 2037 $515,794 June 30, 2018 S2,493,126 June 30, 2038 S352,180 June 30, 2019 $2,428,378 June 30, 2039 $180,385 June 30, 2020 S2,360,393 June 30, 2040 SO.OO OD~.!A'.?CDOCS"_R IDER'~ 1~15'f\5 October 25. Iii'}') COUNCIL REQUEST FOR ACTION Originating Department Community Development, Parks & Recreation Approved for Agenda 1 0/25/99 ~enda Section Development & Planning Item No. By: Kirk McDonald, Shari French By: 8.4 RESOLUTION APPROVING THE COOPER GYM EXPANSION DEVELOPMENT AGREEMENT AND FACILITY USE AGREEMENT (IMPROVEMENT PROJECT #662) ACTION REQUESTED Staff requests that the City Council approve the attached resolution approving the Cooper Gym Expansion Development Agreement and Facility Use Agreement, which was prepared by the City Attorney. Final draft copies of each of the Agreements are also enclosed. POLICY/PAST PRACTICE The City Council's direction to the staff in the past has been to prepare Development and Facility Use Agreements that outline the terms and conditions under which the City and School District will participate in this project. BACKGROUND In April, the City Council met with representatives of the School District at a City Council Worksession to discuss options to add gyms to Cooper High School, after staff had met with District representatives earlier in the year to discuss community/school district needs and design options. The Council was favorable toward the proposal and directed that a public hearing be scheduled to consider modifying the redevelopment and tax increment financing plans to include the Cooper High School property in an area where tax increment financing (TIF) funds could be utilized for community center and recreational purposes. On June 28th, said public hearing was conducted and the Council and EDA approved resolutions modifying the redevelopment and tax increment financing plans to allow the expenditure of up to $3.25 million on the Cooper gyms expansion project. which also includes the reconstruction of tennis courts on the site with costs being prorated between the two entities. The approval of the resolutions authorized the use of TIF funds for the project, but did not commit the City to the project. Prior to a financial commitment, two additional steps needed to be taken: 1. Approval of the plans and zoning code approval for the expansion. and 2. The appropriate agreements needed to be drafted. MOTION BY 7]/ft"l,/i0 A_ /j /;/ (1--" i /,' _ rJ TO: (A 0f.o ~I"t / I J~ ) I SECOND BY 00- I -; I RFA-OOl Request For Action Page 2 In July, the plans were reviewed by the Planning Commission and the Commission recommended approval of the conditional use permit amendment request to the City Council. On August 9th, the City Council accepted the recommendation from the Commission and approved the plans and the CUP amendment request. Subsequent to the approval, staff and the City Attorney have been coordinating with the School District on the appropriate agreements. One of the issues that the City Council wanted addressed prior to consideration of the Cooper Gyms Agreement was the Ice Arena Rental Agreement. The School District approved an agreement acceptable to the City on October 4th, and the City Council approved the agreement on October 11 tho With all of the above steps being completed, the City Council is now being requested to approve the final two agreements for the Cooper gyms project. Per the City Attorney's correspondence, the agreements outline the City/EDA's intent to provide Independent School District No. 281 with a $3,250,000 grant, primarily for the addition of new gyms at Cooper High School. In consideration for the contribution, the School District will provide the City with priority use of the gym facilities. The agreements are further defined by the City Attorney as follows: DEVELOPMENT AGREEMENT The Development Agreement sets forth the terms and conditions under which the $3.25 million grant will be disbursed to the School District during the construction phase of the project. The Development Agreement indicates that so long as the project is constructed in accordance with the construction contract and plans approved by the City and the Facility Use Agreement is signed by the School District, the School District will not be required to repay any portion of the grant. Also, the Development Agreement limits the City's contribution to no more than $3.25 million and from that amount, the City will pay for all of its engineering and legal costs, bond issuance costs, concession room equipment costs, and music equipment and sound system costs which will be incorporated into the project. FACILITY USE AGREEMENT The Facility Use Agreement sets forth the City's right to use the expanded gym facility for a 40-year term. Section 1.03 of the Facility Use Agreement describes how the City will be able to use the facility. The City will have the primary use of the facility during those times that school is not in session. This will be primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations. The Facility Use Agreement also sets forth a repayment schedule in Section 5.02 in the event the School District terminated this agreement prior to the expiration of its 40-year term. The 40- year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of the facility for accounting purposes. The City Attorney and Director of Parks and Recreation will be present at the City Council meeting to review the Agreements in more detail and answer questions. A representative from the School District will also be present. Staff recommends approval of the resolution approving the Agreements. ATTACHMENTS Resolution October 19th City Attorney correspondence Development Agreement Facility Use Agreement 10/19/99 19:23 FAX 6124935193 J S & S, ATTORi'ffiYS -> NEW HOPE CH f4J 002 GoRDON L.IENSEN* Wl.WAM G. SWANSON STEVEN A. SONDRALL MARTIN P. MALECHA C. ALDEN PEARSONt lUUE A. THIu.. OF COUNSEL LORENSQ.BR~AD OReal Property Law Specialist Certified By The MilllleSOt.'l Scale Bar AssocWion tQuaIified ADR Neutrnl JENSEN SWANSON & SONDRALL, P.A. Attorneys At Law 8525 EDINBROOK CROSSING, STE. 201 BROOKLYN P ARl:(, MINNESOTA 55443-1999 TELEPHONE (612) 424-8811 . TELEFAX (612) 493-5193 E-:MAIL jss@jsspa.com October 19, 1999 Kirk McDonald Community Development Director City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Re: Cooper Gym Expansion Development Agreement and Facility Use Agreement Our File No.: 99.11231 Dear Kirk: Please find enclosed for consideration at the October 25, 1999 Council and EDA meetings two proposed Resolutions Approving the Cooper Gym Expansion Development Agreement and Facility Use Agreement. Also enclosed are proposed drafts of each agreement. As you know, it is the City/EDA's intent to provide the Independent School District No. 281 with a $3,250,000 grant for the expansion of the Cooper High School Gym. It is my understanding these dollars will come from the CitylEDA's existing tax increment financing funds. In consideration for the City's contribution, Independent School District No. 281 will provide the City with a priority use of the expanded Cooper Gym pursuant to the terms of the Facility Use Agreement being approved by the enclosed Resolution. Basically, the Development Agreement sets forth the terms and conditions under which the $3.25 Million grant will be disbursed to the School District during the construction phase of the project. The Development Agreement indicates that as long as the project is constructed in accordance with the construction contract and plans approved by the City and the Facility Use Agreement is signed by the School District, the School District will not be required to repay any portion of the grant. Also, the Development Agreement limits the City's contribution to no more than $3.25 Million and from that amount, the City will pay for all of its engineering and legal costs, bond issuance costs, concession room equipment costs, and music equipment and sound system costs which will be incorporated into the project. 10/19/99 19:23 FAX 6124935193 J S & S. ATTORNEYS ... NEW HOPE CH i4J 003 October 19, 1999 Page 2 The Facility Use Agreement sets forth the City's right to use the expanded gym facility for a 40 year term. Section 1.03 of the Facility Use Agreement describes how the City will be able to use the facility. Basically, the City will have the primary use of the facility during those times that school is not in session. This will be primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations, The Facility Use Agreement also sets forth a repayment schedule in Section 5,02 in the event the School District terminated this agreement prior to the expiration of its 40 year term. The 40 year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of the facility for accounting purposes. If you have any questions or comments regarding the Resolution, the enclosed documents or this letter, please contact me. Very truly yours, SCv Steven A. Sondrall JENSEN SwANSON &SONDRALL, P.A. Enclosures cc: Shari French Dan Donahue Valerie Leone CNHl1231'()1-Klrk Ltr.wpd RESOLUTION NO. 99- 171 RESOLUTION APPROVING THE COOPER GYM EXPANSION DEVELOPMENT AGREEMENT AND FACILITY USE AGREEMENT BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, the Economic Development Authority in and for the City of New Hope (hereafter "EDA") and the City of New Hope (hereafter "City") both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the master modification to redevelopment plans and tax increment financing plans initially approved on July 25, 1994, and WHEREAS, the purpose of the 1999 amendment was to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High Schoo110cated at 8230 - 47th A venue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF districts, and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000 to the Independent School District No. 281 (hereafter "ISD 281") for construction by ISD 281 of a gym expansion at Cooper High School, and WHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 will agree to enter into a Cooper Gym Expansion Development Agreement (attached hereto as Exhibit A) and a Facility Use Agreement (attached hereto as Exhibit B), and WHEREAS, the Cooper Gym Expansion Development Agreement sets forth the terms and conditions regarding the manner in which the $3.25 Million TIF fund will be used to construct the gym expansion project and the Facility Use Agreement sets forth the manner in which the City will be permitted to use the gym expansion during certain periods when it is not in use for school purposes, and WHEREAS, the respective bodies of the City, EDA and ISD 281 have reviewed Exhibits A and B attached to this Resolution and have determined that the attached exhibits accurately set forth the understanding and agreements between the respective parties. NOW, THEREFORE, BE IT RESOLVED: -1- 1. The City Councilor the City of New Hope hereby approves the Cooper Gym Expansion Development Agreement and the Facility Use Agreement attached hereto as Exhibits A and B. 2. That the Mayor and City Manager are hereby authorized and directed to sign the documents and that the City Manager is hereby authorized and directed to take all necessary steps to implement the terms and conditions of the Cooper Gym Expansion Development Agreement and the Facility Use Agreement. Dated the 25th day of October , 199~. /X/-t~ W. Peter Enck, Mayor Attest: ~~7~ Valerie Leone, City Clerk P:\AUOrn:y\Cnh Rtsolutions\Rcso. Cooper Gym Appro,'a.l.v.pd -2- This redlined draft, generated by CompareRite .. The Installt Redliner. shows the differences between .. on.mal document : F.\OOCU:\INTS\1DCARPEN\AG:\IT RE\9#520J' \I'1'D and remea document" F.\OOClJ':\n-'TS\IDCARPEN'\AGMT _RE\9#52()4I\l,'PD CompareRJte found 21 change(s) in the te~t CompareR.Jte found 3 change(s) in the notes Deletions appear as struck..through te~t Additions appear as txlld+dbl underlined text COOPER GYM EXPANSION DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered into on , 1999, by and between INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter referred to as "ISD 281 "), with its principal place of business located at Education Service Center, 4148 Winnetka A venue North, Nev". Hope, MN 55427-1288, the CITY OF NEW HOPE, a Minnesota Municipal Corporation (hereinafter referred to as "City") and the ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope, a Minnesota municipal corporation (hereinafter referred to as "EDA") with their principal place of business located at4401 Xylon Avenue North, New Hope, MN 55428. RECIT ALS WHEREAS, the EDA and the City both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the Master Modification To Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994; and WHEREAS, the purpose of the 1999 amendment is to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA' s TIF Districts; and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000.00 to ISD 281 for construction by ISD 281 of a gym expansion and tennis court addition at Cooper High School in accoldaJ.i.Gc v\ith . to!!ether with certain related site improvement and other work (collectivelv. the "Project"). all as more fullv described and set forth in the plans and specifications attached hereto as Exhibit A (together with any and all exhibits, amendments, modifications and change orders thereto, collectively referred to herein as the "Plans"); and WHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 agrees to enter into a Facility Use Agreement with the City, in the form attached as Exhibit B (the "Facility Use Agreement") permitting the City to have primary use of the gym expansion during certain periods when the gym expansion is not in use for school purposes as set forth in the Facility Use Agreement; and P:iAIIO~\SAS\Dccurnenu\,cooper G~..m E.'Cpatulon l>e'\-eloprnenl Agl'ttrnenll October 21. 1999 (: / I .' if (/.t /UJ:2A./{ /- \VHEREAS, in further consideration for the City's and EDA's financial contribution, ISD 281 agrees to use the funds and construct the gym addition/expansion in accordance with the terms and conditions of this Cooper Gym Expansion Development Agreement. ARTICLE I Definitions Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the terms defined): (a) "Advance" - In each instance, an advance made orto be made by the City and/or EDA to ISD 281 pursuant to Article II hereof. (b) "Architect" - Wold Architects and Engineers, which will administer the Construction Contract Documents. (c) "Completion Date" - June 1,2001 (unless ISD 281 shall extend such date in \VTiting, then the Completion Date shall be such later date), being the date of required completion of the Project. (d) "Construction Contract" - The construction contract to be entered into between ISD 281 and the General Contractor regarding the construction of the Project. (e) "Construction Contract Documents" - The document or documents, including 'without limitation the Construction Contract and the Plans, which, together with any and all exhibits, amendments, modifications and change orders thereto, collectively form the contract or contracts between ISD 281 and the General Contractor concerning construction and/or rehabilitation of the Project. (f) "Contribution Amount" - This term shall have the meaning ascribed to it in Section 2.01 below. (g) "Draw Requisition" - The draw requisition, in the form attached hereto as Exhibit C, which is to be submitted to the City when an Advance is requested, and which is referred to in Section 2.02 hereof. (h) "En2'ineer" - KARGES-FAULCONBRIDGE, INC.. a Minnesota corporation. ill "Event of Default (Citv/EDA )" - One of the events of default specified in Section 6.0 I (b) hereof. P:Wlomc:,'ISAS\Docurnenu'.Cooper Gym E.'CpUWon Deo.-elopmc:nl Agro:menl1 October 21. 199'1 2 wID "Event of Default (ISD 281 )" - One of the events of default specified in Section 6.01(a) hereof. wOO "Facility Use AQreement" - This term shall have the meaning ascribed to it in the Recitals above. Will "General Contractor" - The person or entity selected by ISD 281 to serve as the general contractor for the Project. ffl(m) "Inspectim! Official" - The City Building Official or City Engineer, Bonestroo, Rosene, Anderlik & Associates. tm7fn} "Plans" - This term shall have the meaning ascribed to it in the Recitals above. en) 'T!oject" - Thc cxpansion oftllc COOPC! IIigh School G) 111 alid SUll oWldilig athletic fidds as dCSClibcd in the rlallS.:(Q} "Proiect" - This term shall have the meanin~ ascribed to it in the Recitals above. toJuu "Real Estate" - The land upon which the Project is located, described on Exhibit D attached hereto, commonly known as Cooper High School located in the City of New Hope. fp)!gl "Subcontractor" - Any person, other than the General Contractor, who shall be engaged to work on, or to furnish materials and supplies for, the Project. ARTICLE II Commitment to Make Contribution Section 2.01 City Contribution/Cost Sharing. The City and EDA agree, subject to the conditions hereinafter set forth, to contribute to ISD 281 in an aggregate principal amount not to exceed Three Million Two Hundred Fifty Thousand ($3,250,000.00) (the "Contribution Amount") for construction of the Project. ISD 281 shall not be obligated to repay the City or EDA any portion of this contribution if the Project is completed substantially in accordance with the Plans and the Facility Use Agreement is entered into by the parties, subiect onlv to the obli~ation ofISD 281 to pav the Termination Fee in the event of anv termination of the Facility Use A!!reement in accordance with Section 5.0Ub) thereof. The total construction cost for the Project is estimated at $ . The parties will share the Project costs as set forth in the Project Cost Sharing Schedule attached hereto as Exhibit E. Not withstanding this agreement to share construction costs, in no event will the City be required to contribute more than the Contribution Amount to the cost for the Project. ISD 281 also acknowledges and agrees that the City's costs for those items described in Section 2.01(a) below will be paid from and included as part of the Contribution Amount. ISD 281 further acknowledges and agrees that the costs of ISD 281 for P:\AllOrnc,"'-SAS\Oocumenu'.coopc:t G,-m E.'q)anSlon Oe\"C.lopment Agl'ttm:nl1 October 21. 1999 3 purchase of equipment described in Section 2.01 (b) below shall not be paid from the Contribution Amount. The net effect of this cost sharing provision is that the entire Contribution Amount will not be available to ISD 281 solely for construction costs, but will additionally include those costs described in Section 2.01(a) below. (a) Citv's Costs. ISD 281 acknowledges and agrees the City intends to sell bonds to finance the Contribution Amount. ISD 281 further acknowledges and agrees the City intends to make equipment purchases for (i) the concession room to be constructed as part of the Project, and (ii) a music/sound system to be installed as part of the Project. As herein agreed, these costs will be paid from the Contribution Amount. The City's costs to be funded from the Contribution Amount are estimated as follows: (i) general engineering and legal costs - $25,000.00 (ii) bond issuance costs - $75,000.00 (including consultant and bond attorney fees) (iii) all concession room equipment (coolers, freezers, cookers, pop machine, etc.) -$10,000.00 (iv) music equipment/sound system - $5,000.00 The parties agree the referenced costs are estimated and that the actual costs incurred by the City v.ill be controlling to determine the remaining Contribution Amount available to ISD 281 for construction costs. (b) ISD 281 Excluded Costs. ISD 281 further acknowledges and agrees that its costs for the following items will not be funded from the Contribution Amount: (i) V olleyball standards and nets (ii) All tennis nets, wind screens, poles, flags and bleachers for tennis courts (iii) All equipment needed for the ball fields including but not limited to bleachers and scoreboards Section 2.02 Draw Requisitions. Whenever ISD 281 requires an advance hereunder, which shall be no more often than monthly, ISD 281 shall submit to the City a Draw Requisition, duly completed and executed on behalf of the ISD 281, setting forth the information requested therein. Each Draw Requisition shall be certified as true and accurate by the Architect relative to the percentage of work completed on which payment is requested. Each Draw Requisition with respect to construction items shall be limited to amounts equal to (i) the amount of work actually completed, plus (ii) the value of materials and equipment not incorporated in the Project but delivered and suitably stored on or off the Project site in a manner reasonably acceptable to City, less (iii) any P~\Atlomey\S^S"Documenu\Cooper cr.m E..'CpaJ'Ulon Dc-.-elopmc:nl Agreementl October 21. 199~ 4 retainage required under the Construction Contract (in an amount not less than five percent (5%) of the contract amount, or portion thereof (except as to Dra\v Requisitions to fund the retainage in accordance with the Construction Contract)), and (iv) less prior Advances, to the extent such prior Advances consisted of prepayments of any of the foregoing. At the time of submission of each Draw Requisition, ISD 281 shall submit to the City the following: (a) A waiver of mechanic's lien and/or materialman's lien, executed by the General Contractor in the amount of the lienable costs of the Project payable from the requested advance, together with a waiver of mechanic's lien and/or materialman's lien, executed by each Subcontractor, to which any portion of the immediately preceding Advance ("Prior Advance"), if any, was paid, covering liens for all work done and materials supplied for which disbursement \vas made from the Prior Advance, in the form reasonably required by the City. (b) Such other supporting evidence as may be reasonably requested by the City to substantiate all payments which are to be made out of the relevant Draw Requisition and/or to substantiate all payments then made with respect to the Project. (c) Satisfactory evidence that all work then requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such jurisdiction, and that all then required certificates of occupancy and other approvals by municipal or other governmental authorities having jurisdiction have been issued. If on the date an Advance is desired, ISD 281 has performed all of its agreements and complied with all requirements therefore to be performed or complied with hereunder, and the Inspecting Official approves the relevant Draw Requisition, which approval shall not be unreasonably withheld, the City shall disburse such funds directly to ISD 281 on such date. If the Inspecting Official does not so approve the Draw Requisition, the Draw Requisition shall nevertheless be deemed approved in the event the City fails to notify ISD 281 in \VTiting of the reason for such disapproval within five (5) business days of either the City's receipt of the Draw Requisition. Section 2.03 City Inspections. City shall have the right but not the obligation, and solely for its own protection, to make such inspections of the improvements as it deems advisable. ISD 281 acknowledges that it does not and shall not reply upon any inspections which City may make pursuant hereto. City and its agents, inspectors, and employees may enter upon the Real Estate at any reasonable time to inspect the progress of construction. City is not responsible for seeing that the improvements are constructed in accordance with the Plans, that the improvements contemplated under the Construction Contract Documents will be completed, that sufficient funds will be available for completion, or that the design, engineering details, or architectural features are adequate or appropriate. City shall also not be required to provide architectural supervision of construction or any services related to construction quality control or judgment. All inspections by, or on behalf of, P"\AmH'l"Ie;.\SA.S\Documenu',Cooper Gym E..~t\S.Ion Dc\c:lopmenl Aglttmenl1 C::tober ! I. 1999 5 the City in accordance with this Section 2.03 shall be at the City's sole cost and expense, payment for which shall be in addition to, and not as part of, the amount of the Contribution Amount. Section 2.04 Advances Without Receipt of Draw Requisition. Notwithstanding any1hing herein to the contrary, the City shall have the irrevocable right at any time and from time to time, to apply funds which it agrees to advance hereunder to pay any and all of the expenses referred to in Section 7.04 hereof, all without receipt of a Draw Requisition for funds from ISD 281. ARTICLE III Conditions of Funding Section 3.01 Condition Precedent to Anv Advance. The obligation of the City to approve Advances hereunder shall be subject to the condition precedent that it shall have received the following on or before the date of the initial draw request: (a) The Plans. (b) A copy of the fully executed Construction Contract Documents, with such contracts being reasonably acceptable to the City. (c) A sworn construction statement duly executed on behalf of ISD 281, in form and substance reasonably satisfactory to the City, showing all incurred and anticipated costs and expenses for construction of the Proj ect. (d) obtained. Evidence reasonably satisfactory to the City that all then required permits have been ( e) Copies of, or binders for the delivery of, or certificates evidencing, the policy of fire and extended coverage and comprehensive general liability insurance required under Section 5.0 I (c) hereof, with all such insurance in full force and effect. (f) The Facility Use Agreement duly executed by ISD 281. (g) Any and all such other documents and agreements which City deems reasonably necessary to establish that there are sufficient additional funds, after giving effect to the City's Advance and in addition to the remainder of the Contribution Amount, to pay for the unfunded portion of the work remaining to be performed under the Construction Contract Documents. Section 3.02 Further Conditions Precedent to Anv Advance. The obligation of the City to make any Advance hereunder shall also be subject to the following conditions precedent: P:\Anome:o.~SA5'.Documenu\Coopc:r Gym E.'qWUion Development Agl't:emenl.1 Ooober:!.I.I999 6 (a) No Event of Default (ISD 281) hereunder, or event which \vould constitute such an Event of Default (rSD 281) but for the requirement that notice be given or that a period of grace or time elapse, shall have occurred and be continuing. ARTICLE IV Representations and Warranties Section 4.01 Representations and Warranties ofISD 281. rSD 281 represents and warrants as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are within the powers of ISD 281 and do not violate any provision of law to which ISD 281 is subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which rSD 281 is a party, are the legal, valid and binding obligations of ISD 281 enforceable against rSD 281 in accordance with their respective terms. (c) rSD 281 has title to the Real Estate. (d) The Project will be constructed substantially in accordance with the Construction Contract Documents, will be constructed entirely on the Real Estate, and will not encroach upon or overhang any easement right-of-way of land not constituting part of the Real Estate. (e) The Project and the contemplated use thereof, both during construction and at the time of completion, will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record. (f) rSD 281 agrees that it will furnish from time to time such satisfactory evidence regarding the representations and warranties described herein as may be required by the City. Section 4.02 Representations and Warranties of the City and EDA. The City and EDA do each represent and warrant as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are within the powers of the City and EDA and do not violate any provision oflaw to which either or both the City and EDA are subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are the legal, valid and binding obligations of the City and EDA, as applicable, enforceable against the City and EDA, as applicable, in accordance with their respective terms. P:\Allornc;:.\SA5'..Documents'.Cooper ~m Espanslon Development A!:reemenl1 Oaober ~l. 1999 7 ARTICLE V Additional Covenants Section 5.01 Covenants ofISD 281. ISD 281 agrees that: (a) ISD 281 \vill cause construction of the Project to commence, and thereafter will cause the Contractor or Contractors to diligently proceed with construction of the Project according to the Construction Contract Documents, so that the Project can be completed by the Completion Date. ISD 281 further agrees to provide all funds required over and above the Contribution Amount to the extent such additional funds should be necessary to complete the construction of the Project. (b) ISD 281 will comply with the Uniform Municipal Contracting La\v, as enacted in the State of Minnesota, in letting contracts and expending public funds on this project. Also ISD 281 will require the General Contractor to comply v.ith all rules, regulations, ordinances and laws bearing on its conduct of work on the Project. (c) ISD 281 will provide and maintain at all times during the process of building the Project, and, from time to time at the request of the City, furnish the City with proof of payment of premiums on, the following insurance: (i) fire and extended coverage, in an amount equal to the lesser of the aggregate amount of the City's Advances or the full insurable value of the Project, with the City named as loss payee, and to include an overlap endorsement or rider covering the risk of any rehabilitation work; (ii) comprehensive general liability insurance, including the City as a named insured, with limits against bodily injury and property damage in an amount greater than or equal to the limits ISD 281's statutory immunity under Minnesota law; The policies of insurance required pursuant to Sections 5.01 (c )(i) and (ii) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with financially sound and reputable insurers licensed to transact business in the State of Minnesota. The policy of insurance delivered pursuant to Section 5.01 (c) (i) hereinabove shall contain an agreement of the insurer to give not less than ten (10) days advance written notice to the Cit.y in the event of cancellation of such policy or change affecting the coverage thereunder. (d) ISD 281 will cause the General Contractor to maintain at all times during the process of building the Project, and, from time to time at the request of the City, cause the General Contractor to furnish the City with proof of payment of premiums on, the following insurance: (i) comprehensive general liability insurance, including the City and ISD 281 as a named insured, with limits (i) against bodily injury of not less than $1,000,000, and (ii) against property damage of not less than $250,000 (to P;\A.ItOrnc:;.~.sAS\D<x:umenLS\Cooper G,m E.'q)3fU1on Oe\-elopmenl Agr=ment1 Oc1oQef 21. 1999 8 accomplish the above-required limits, an umbrella excess liability policy may be used); and (ii) workmen's compensation insurance, with statutory coverage. The policy of insurance required pursuant to Section 5.01 (d)(i) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with a financially sound and reputable insurer licensed to transact business in the State of Minnesota. Acceptance by the City of an insurance policy delivered pursuant to Section 5.01 (d)(i) hereinabove shall not bar ISD 281 from requiring additional insurance which it reasonably deems necessary. (e) ISD 281 will permit the City, acting by and through its officers, employees and agents, to examine all books, records, contracts, plans, drawings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. (f) ISD 281 will furnish to the City, as soon as possible and in any event within ten (10) days after ISD 281 has obtained actual knowledge thereof, written notice of the occurrence of each Event of Default (ISD 281), or each event which with the giving of notice or lapse of time or both would constitute an Event of Default (ISD 281), which is continuing on the date of such statement, the statement of ISD 281 setting forth details of such Event of Default (ISD 281) or event and the action which ISD 281 proposes to take with respect thereto. (g) ISD 281 agrees that, without the prior written consent of the City, it will not agree or consent to any material changes in the Construction Contract Documents, or to any change orders thereto, individually exceeding $25,000.00 without the consent of City, which consent \-vill not be unreasonably withheld. Any change orders not exceeding $25,000.00, approved without the prior consent of the City will be presented to the City for review as soon as practicable after its approval by ISD 281; provided, however, the City shall have no right to object to the form or content thereof. Section 5.02 Covenants of the City and EDA. The City and EDA agree that: (a) The City and EDA will furnish to ISD 281, as soon as possible and in any event within ten (10) days after either or both the City and EDA have obtained actual knov,rledge thereof, written notice of the occurrence of each Event of Default (CityIEDA), or each event which with the giving of notice or lapse of time or both would constitute an Event of Default (CityIEDA), which is continuing on the date of such statement, the statement of the City and EDA setting forth details of such Event of Default (CityIEDA) or event and the action which the City and EDA propose to take with respect thereto. P:lAttomeyISASl.Oocumenu\Coopr:r Gym E.~lon Oe\'clopmenl Agn::ement.:! October 11, J 999 9 ARTICLE VI Events of Default and Rights and Remedies Section 6.01 Events of Default. 281): (a) ISD 281 Events of Default. The following shall constitute Events of Default (ISD (i) ISD 281 shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or performed by ISD 281 hereunder, and such failure shall continue uninterrupted and without cure for a period ofthirry (30) days after delivery of written notice of default to ISD 281. (ii) Any representation or warranty made by ISD 281 herein, or in any financial statement, certificate, report or Draw Requisition furnished pursuant to this Agreement, or in order to induce the City to approve any Advance hereunder, shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty was made. (iii) The Project is materially damaged or destroyed by fire or other casualty and the loss, in the reasonable judgment of the City, is not adequately covered by insurance actually collected or in the process of collection. (iv) The construction of the Project is abandoned, or shall be unreasonably delayed beyond the Completion Date (subject to such extensions as may be permitted in accordance with the Construction Contract Documents), or shall be discontinued for a period of twenty (20) consecutive calendar days, in each instance for reasons other than acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment or labor, governmental restrictions or any similar cause over which ISD 281 is unable to exercise control. (v) The Project is not substantially completed in accordance \vith the Plans or Construction Contract Documents. (b) Citv/EDA Events of Default. The following shall constitute Events of Default (City/EDA): (i) Either or both the City and the EDA shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or performed by either or both the City and the EDA hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of VvTitten notice of default to the City and the EDA. (ii) Any representation or warranty made by the City or EDA herein, or in any financial statement, certificate, or report furnished pursuant to this Agreement shall prove to have P:\Altome:'o\SASDocume-nu\Cooper ~tn E.~on De\-eloprnenl A~nl1 Oc1ober :1. 1999 10 been untrue in any material respect or materially misleading as of the time such representation or warranty was made Section 6.02 Ri2:hts and Remedies. (a) Ri2:hts and Remedies Upon Event of Default (lSD 281) . Upon the occurrence of an Event of Default (ISD 281) and at any time thereafter until such Event of Default (ISD 281) is cured to the reasonable satisfaction of the City, the City may, at its option, exercise any and all of the following rights and remedies, along with any other rights and remedies available to it: (i) The City may, by notice in \\Titing to ISD 281, refrain from approving Advances hereunder (but City may make Advances after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder), or terminate this Agreement; and (ii) The City shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. (b) Ri2:hts and Remedies Upon Event of Default (Citv/EDA) . Upon the occurrence of an Event of Default (City/EDA) and at any time thereafter until such Event of Default (City/EDA) is cured to the reasonable satisfaction of ISD 281, ISD 281 may, at its option, exercise any and all of the rights and remedies available to ISD 281 under applicable law, including without limitation the following: (i) ISD 281 shall be entitled to terminate either or both this Agreement and the Facility Use Agreement; and (ii) ISD 281 shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. ARTICLE VII Miscellaneous Section 7.01 Inspections. ISD 281, Architect and the Alchitect Emdneer, shall be responsible for making inspections of the Project during the course of construction, and shall determine to their own satisfaction that the work done or materials supplied by the General Contractor and Subcontractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the applicable contracts with such General Contractor and Subcontractors. If any work done or materials supplied by the General Contractor or a Subcontractor are not reasonably satisfactory to ISD 281 aILcL'OL,1 the Architect and/or the En2ineer, or if the General Contractor or a Subcontractor does not materially comply with the Construction Contract Documents in any material respect, ISD 281 \\-ill, upon discovery thereof, promptly notify the City in writing of such fact. It is expressly understood and agreed that the City and its Inspecting Official may, at the City's sole cost and expense (and without reduction of the amount of the P:\A.uo~-\SASDo:x:umenU\Cooper Gym E.q=anslon Oc\"C:lopmenl Agro:mentl O::1ober21.lm 11 Contribution Amount), conduct such inspections of the Project as either may deem necessary for the protection of the City's interest, and that any inspections which may be made of the Project by the City or the Inspecting Official are made, and all certificates issued by the Inspecting Official will be issued, solely for the benefit and protection of the City, and that ISD 281 \vill not rely thereon. Section 7.02 Indemnification. (a) Indemnification bv ISD 281. ISD 281 shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnifY and hold harmless the City, its agents, servants and employees from all claims, demands andjudgments made or recovered against the City, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of the City or others (including loss of use) from any cause whatsoever, arising out of. incidental to, or in connection with the construction of the Project, whether or not due to any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct ofISD 281, the General Contractor or any Subcontractor, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of the City, its employees, servants or agents. The obligation ofISD 281 under this Section 7.02(a) shall survive completion of the Project. (b) Indemnification bv Citv/EDA. The City and EDA shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnifY and hold harmless ISD 281, its agents, servants and employees from all claims, demands andjudgments made or recovered against ISD 281, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of ISD 281 or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct of the City or EDA, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of ISD 281, its employees, servants or agents. The obligation of the City and EDA under this Section 7.02(b) shall survive completion of the Project. (c) Limitations on Indemnity. Notwithstanding Sections 7.02(a) and 7.02(b) of this Agreement, ISD 281, the City and EDA shall, and do hereby, release each other from all claims, demands, liabilities, judgments and expenses to the extent subject to and in excess of each party's limits of statutory immunity under Minnesota law, or to the extent othef\vise covered, or required under this Agreement to be covered, by insurance. Section 7.03 Title to Proiect. Notwithstanding anything to the contrary in this Agreement or otherwise, and except only as otherwise provided in the Facility Use Agreement. title to the Project, together with any and all rights and interests, legal, equitable or otherwise, therein, shall at all times be vested solely with, in and to ISD 281. P'\Allome:-.ISAS.DocumetlLS'.Cooper G~m E'\panslon ~c:lopmenl Agtt::menl1 October 11. 199~ 12 Section 7.04 Fees. Whether or not any Advance shall be made hereunder, ISD 281 agrees to pay all fees including inspection fees, appraisal fees, survey fees, recording fees, license and permit fees and title insurance and other insurance premiums relating to the Project, all of which fees, costs and expenses shall be subject to prorata reimbursement from the Contribution Amount. Section 7.05 Addresses for Notices. All notices to be given by either party to the other hereunder shall be in writing and deemed to have been given \vhen delivered personally or when deposited in the United States Mail, registered or certified postage prepaid, addressed as follows: To ISD 281 at: Thomas H. Walerius Independent School District 281 Education Service Center 4148 Winnetka Avenue North New Hope, MN 55427-1288 To the City and EDA at: Daniel J. Donahue, City Manager City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 or addressed to such party at such other address as such party shall hereafter furnish by notice to the other party. Section 7.06 Termination ofthis A2:reement. The obligations ofISD 281 all parties under this Agreement, but not under the Facility Use Agreement or any other agreement(s) attached hereto or incorporated herein by reference, shall cease upon (i) payment bv City of the Contribution Amount in accordance with this A!:!reement. and (ii) City's certification that the construction of the Project has been completed in accordance with the Plans and Construction Contract Documents. Section 7.07 Time of Essence. Time is of the essence in the performance of this Agreement. Section 7.08 Bindin2: Effect and Assi2:nment. This Agreement shall be binding upon and inure to the benefit of ISD 281 and the City and their respective successors and assigns. Section 7.09 Waivers. No waiver by the City or ISD 281 of any default hereunder shall operate as a waiver of any other default or of the same default on a future occasion. No delay on the part of the City or ISD 28 I in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. P.\Alto~\S^S"'Doc\lmenLS',Cooper ~m a'tp3twon lk\-elopmenl Ag;n:ement: October 2. L J 999 13 Section 7.1 0 Remedies Cumulative. The rights and remedies herein specified of each of the City and ISD 281 are cumulative and not exclusive of any rights or remedies \vhich either or both the City and ISD 281 would otherwise have. Section 7.11 Governing Law and Entire Agreement. This Agreement shall be governed by the laws of the State of Minnesota. This Agreement contains the entire agreement of the parties on the matters covered herein. No other agreement, statement or promise made by any party or by any employee, officer, or agent of any party that is not in writing and signed by all the parties to this Agreement shall be binding. Section 7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. IN \VITNESS \VHEREOF, the parties hereto have executed this Agreement, or caused it to be executed by their duly authorized officers or partners, as of the date first above v.TItten. - CITY OF NE\V HOPE INDEPENDENT SCHOOL DISTRICT No. 281 Bv " Its Mayor By Its By Its City Manager By Its ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope By Its President By Its Executive Director P:'.AUO~\SAS'.DocumenlS'.Cooper G~m E..'l:pamlon O<:\-c:Jopment Agre:mentl October 21. 1~ 14 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this day of 1999, by W. Peter Enck and Daniel 1. Donahue, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this day of , 1999 by W. Peter Enck and Daniel 1. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) by The foregoing was acknowledged before me this and respectively, of Independent , on behalf of said day of ,1999 the and School District 281, a Minnesota Notary Public P:\AIIO~'\SAS\DccUmenlS\Coopet ~m E..-"tJ:lOUWon Development Agn::ement.2 Octo/::cr Z I. 1999 15 EXHIBIT "A" Plans [To be provided by City, EDA and ISD 281J P:WIOmcr'SA.S\Docume:nu\ClX7pef Gym .E.~n Oe-.-e:lopmau Agxu:rnent.2 Octcb:r 21. 1999 P:1Anomc:,'SAS\Documenu\c~ Gym E.""""". o..-elopmen, ^""""""ll October 21. 1999 EXHIBIT "B" Form of Facility Use A~reement [To be attached] P:\AUotne)\SAS\Oc,,,",,,,,.\Coopo:< G)... E........... o",'Clopme:u Ar=m=ul Oaober 21. 1999 EXHIBIT "C" Form of Draw Requisition [To be provided by City and EDA] P:I.Anom=y\SA.S\Doaunents\Coope.r G,-m E..'tpa.lWon OC'".-elopmettl Aa:n=mena ~ 21. 1999 EXHIBIT "D" Le~al Description of Real Estate [To be provided by ISD 281] EXHIBIT "E" FOl.m of Proiect Cost Sharin~ Schedule [To be plo~idc.d b, Cit), r::DA and ISD 281] The foUowill!! table provides an allocation of Proiect-related costs as between the City and ISD 281: PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF WORK CITyl ISD 2812 Site Improvement: . Construction. Parkin!! and Draina!!e, 100% 0% - Perimeter Walks. Plantin!!s alon!! 47th Avenue, Utilities (Sanitarv Sewer, Storm Sewer. Water and Gas). and Related Work . Accessible Route to Ballfields. and 30% 70% Related Work Buildin!! Construction: . Gvmnasium Facilitv (Inclusive of Code 100% 0% Up!!rades). and Related Work Tennis Court Construction: . Construction of 7 Tennis Courts. and 30% 70% Related Work IThe City's percentage of responsibility is as shown in this table subject only to the requirement that the City's aggregate percentage of responsibility for the entire Project shall in no event exceed the Contribution Amount. 2ISD 281's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage of responsibility as set forth in this table, which exceed the Contribution Amount. P;Wlorne;.'\SAS\Documents~Cooper G)m E.'qWUion D:..-eJopment Aueerncna October 21. 1999 . Expanded Fencin2'. Screen Plantin2'. 30% 70% - Access Paths and Draina2'e. and Related Work P:\Aflorne,:'\SAS\.Ooc;umenU\Coop::r O)m E.'tpUWon Ot:\dopmeru Agrttmctu2 October 21. I 999 ------------------ COMP ARlSON OF FOOTNOTES __________________ uirement onsibilitv for the entire Pro' ect shall in no event ercentaue of res onsibiIitv as set ------------------ COMP ARlSON OF FOOTERS __________________ -FOOTER 1- ::ODMA\PCDOCS\RIDER\438230B ~ October + 19,1999 P:\A[tO~\SAS\Docu.menu\Cooper ~m E.~on Oe\"dopmem Agro::menL1 Oc1ol>er 2 I. 1999 FACILITY USE AGREEMENT AGREEMENT made this4C: day of (0 r2/t , 1999 by and between the CITY OF NE'W HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Mirmesota (hereinafter "ISD 281"). RECIT ALS \VHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gymnasium, on real property legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); WHEREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); \VHEREAS, the parties desire to provide for joint use of the Facility; \VHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1.02 Term. This Agreement shall be for a ten11 offorty (40) years commencing on the date of substantial completion of the Facility and expiring on June 30, 2040. OD:"'!A,.?CDOCS\RIDER\~ J S25')\5 October 25. I')')') 1.03 Use and Scheduling. The facility shall be used by the parties as follows: a. until 5:30 p.m. ISD 281 will have primary use of the Facility on school days from 6:00 a.m. b. The City will have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably withheld if time is available. d. The City will supervise the Facility when it has primary use of the Facility and shall hire and pay any building attendant necessary to perform such supervision. Supervision shall not include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the City when the Facility is under City use (the "Principal Activity"), together with supervision of any and all uses or activities associated v'lith, or related to, such Principal Activity, including without limitation supervision of such interior or exterior common areas and parking areas as may be used by employees or invitees of the City in cOlmection with such Principal Activity. How'ever, the City will be responsible for cleaning the concession room area and equipment after each use by the City. Ho\vever, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of general routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. e. The City will have reasonable access to the Facility during its primary use time. f. ISD 281 will permit the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281' s reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it will not be permitted use ofthese areas without the written consent of the City. h. The City and ISD 281 shall meet at least annually to review the Facility use schedule. 1.04 Alcohol and Tobacco Policv. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions ofMilm. Stat. ~ 624.701; that ISD 281's alcohol and OD\IA.?CDOCS\RID ER'.n :C,)'r5 O<.:ld".::r15.1'J')') 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; ai1d that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and Maintenance of Facility 2.01 Ownership. ISD 281 is the owner of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Upkeep. ISD 281 will be responsible for all maintenance, repairs, replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. However, the City acknowledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, \valls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1.03(g) of this Agreement. 2.03 Operating Cost and Utilities. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow' comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. However, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each party will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under :0/Iinn. Stat. 9 466.04. ISD 281 will be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 281's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bv ISD 281. ISD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the ISD 281's use of the Facility, or from any act permitted. or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by ISD 281 of this Agreement except to the extent caused by the City's gross negligence or willful misconduct. In the event any action or proceeding shall be 00.\ lA?CDOCS.?: DERJ ",\25'):': O~:ob.:r 25.1')')') ..., .J brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 281 IS expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City of this Agreement, except to the extent caused by the ISD 281 IS gross negligence or willful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall 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 levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute \vhich also involves a material breach authorizing the nonbreaching party to exercise its rights under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent \vith any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance \vith this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement. the party alleging the breach may, in addition to, and not in lieu of any other remedies available to such party under Section 4.01 of this Agreement or otherwise under applicable la\v, seek to terminate this Agreement by giving the breaching party written notice specif).ring 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 \vhich shall in all respects be reasonable and shall specify a date not later OD~.I.-\ 'PCDOCS\RIDER.t J S25'Y,5 O;;tcb"r15.1')1J'} 4 than ten (10) days from the date of such wTitten notice. The Superintendent for the District or his or her designee(s) and the City Manager for the City or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty (30) days after the date of such meeting, the party alleging the breach may send a final vvritten notice of termination to the breaching party terminating this Agreement effective upon the date of delivery of such notice. 5.02 Termination Without Cause. This Agreement may be terminated without cause as follows: a. Either party may terminate this Agreement prior to the award of contract to construct the Facility by giving written notice of such termination to the other. ISD 281 shall give the City ten (10) days v\Titten notice of its intent to award a contract. If this Agreement is terminated in accordance with this Section 5.02(a), any and all actual out-of-pocket costs incurred by the non-terminating party shall be paid by the terminating party. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance vvritten notice of termination (an "Early Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount, inclusive of interest calculated at a fixed rate of interest equal to five percent (5%) per annum, in accordance vvith the Telmination Fee Schedule attached hereto as Exhibit C (the "Termination Fee"). Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all rights to specific performance, damages, or any other remedy available in equity or in lavv. ARTICLE VI lVliscelIaneous 6.01 Building Security. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together with any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement, ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section 1.03(b) of this Agreement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility, including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance with such reasonable rules and regulations as ISD 281 mav issue from time to time. The Citv herebv agrees to indemnify _. ,.I ",I .."...... ., and defend ISD 281 from and against any and all claims, demands, liabilities, and expenses, OD~.tA'.PCDOCS\RIDERA:; S15'F:, Oc:obcr25.1'J'J') 5 including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationship of Parties. The parties hereto agree that it is their intention hereby to create only the relationships oflicensor and licensee, and no provision hereof, or act of either party hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 AssiQ:nment. Neither party may assign its rights or obligations under this Agreement without the prior vvTitten consent of the other party. 6.04 BindinQ: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective pennitted successors and assigns. 6.05 Severability. If any prOVISIOns of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 GoverninQ: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. :;OD~lA'PCDOCS'.RI DERQ:;S15'J\5 October 25. I')')') 6 IN 'WITNESS WHEREOF, the parties have subscribed their names as of the day and year first above written. INDEPENDENT SCHOOL DISTRICT NO.~ ~ ',,--; /- By... It~ By Its CITY OF NE\V HOPE q~ ~~' Jiil .'Y' ,,/ -, , . . .. .,' By A.;Z ,b_-r!..71 ,Jf? Its Mayor / f} By A~ 2/L;t<<k Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this~ day of /O(i,>t , 1999, by If).I1f/l,' Cnck and]'1it1ldX Dn/lI..J,hac. , respectively the Mayor and city Manager of the City ofNe\v Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. VALERIE j. LEONE NOTARY PUBLIC - MINNESOTA My Commission Expires January 31, 2000 J z:; la,jJ!lu.-t.-. .. .?iil1L I v Notary Public ::om.IA\PCDOCS\R IDE:\.'.l:; :-125')\5 October 25. 1')')1) 7 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The for")1oing instrum~nt was acknowledged before me fuiS~ ~ , 1999 C. . /Jlt- ~nd ~~ ~, the ~ ~ and of Independent School District No. 281 on behalf of said dent school district. by I'll JUDITH D. LUND I NOTARY PUBLIC. MINNESOTA My Commission Expires Jan. at, 2000 II N~fP~ . :OD\{'-\'.PCDOCS'RlDER",..l3 ~25'}\5 Octob-cr25.1<)'N 8 Parcell: Parcel 2: :;OD/'.l-\\PCDOCS\RIDER\~ 3S259\5 Ck1ohe:r 25. 1999 EXHIBIT A TO FACILITY USE AGREEMENT Legal Description East Y2 of the Northwest V4 of the Southeast V4, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. West Y2 (W Y2) of the Northeast V4 (NE V4) of the Southeast V4 (SE V4), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the West Y2 (W Y2) of the Northeast V4 (NE V4) of the Southeast V4 (SE V4), Section 7, Township 118, Range 21; and (b) That part of the Northeast V4 (NE V4) of the Southeast V4 (SE V4), Section 7, Township 118, Range 21, lying North of 47th Avenue North and lying between a line drawn 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in Lynncroft Addition. EXHIBIT B TO FACILITY USE AGREEMENT FLOOR PLAN I't~ 1/32. . 1'-0. TOP~ ~ ,. ;.: ~:';. t ~ t ~~ ;"... ..;"" ~ ..... ~ ,,- ......:;: ~ .'.ii <' <: EXlSrnG .;.: .~nlu;*n....':H .,*~. l~~ ~ ~ ~ ~ ~ . ~~~ ,:.<h lt7lHt.~,J;.J=~='''~I~ '!~> (rJI rw"'w'~ Ii .. y r> ~1 .*! 'i~ '~""<<":':<->:<'?<':':':':'>:<'>:':':'''''~'.l1 TO TE>>.'-LS coo:rrs ~~ ::ODMA\PCDOCS\RIDER\-43825<J\5 OctQbc:r 25. 19'19 Site Plan .. III ~ i o <.> I I I L _ .E~ 1_ _ -1 I I I I I I I I r-----..., I I I I IiC z: < ~ <.> c: '" Q l: " I I I L _ ~~ 2_ _ -1 I I I I I I I I r,-----..., I I I I ~ g " ~ 8 -,"'- II[ EXHIBIT C TO FACILITY USE AGREEMENT Termination Fee Schedule TERMINATION TERMINATION TERMINATION TERMINATION DATE FEE DATE FEE June 30, 2001 $3, 223,096 June 30, 2021 $2,289,008 June 30, 2002 $3,194,847 June 30, 2022 $2,214,055 June 30, 2003 $3,165,185 June 30, 2023 $2,135,354 June 30, 2004 $3,134,040 June 30, 2024 $2,052,717 June 30, 2005 $3,101,338 June 30, 2025 $1,965,949 June 30, 2006 $3,067,001 June 30, 2026 $1,874,842 June 30, 2007 $3,030,947 June 30, 2027 $1,779,181 June 30, 2008 $2,993,091 June 30, 2028 $1,678,736 June 30, 2009 $2,953,341 June 30, 2029 $1,573,268 June 30, 2010 $2,911,604 June 30, 2030 $1,462,528 June 30, 2011 $2,867,780 June 30, 2031 $1,346,250 June 30, 2012 $2,821,765 June 30, 2032 $1,224,159 June 30, 2013 $2,773,449 June 30, 2033 $1,095,962 June 30, 2014 $2,722,718 June 30, 2034 $961,357 June 30, 2015 $2,669,450 June 30, 2035 $820,020 June 30, 2016 $2,613,518 June 30, 2036 $671,617 June 30, 2017 $2,554,790 June 30, 2037 $515,794 June 30, 2018 $2,493,126 June 30, 2038 $352,180 June 30, 2019 $2,428,378 June 30, 2039 $180,385 June 30, 2020 $2,360,393 June 30, 2040 $0.00 ::ODMA\PCDOCS\RIDER\43K25<J\5 October 25. 19<J<J COOPER GYM EXPANSION DEVELOPMENT AGREEMENT THISAGREEMENTismadeandenteredintoonLOd dS:- , 1999, by and between INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter referred to as "ISD 281"), with its principal place of business located at Education Service Center, 4148 Winnetka Avenue North, New Hope, MN 55427-1288, the CITY OF NEW HOPE, a Minnesota Municipal Corporation (hereinafter referred to as "City") and the ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope, a Minnesota municipal corporation (hereinafter referred to as "EDA") with their princip~l place of business located at 4401 Xylon Avenue North;New Hope, MN 55428. RECITALS WHEREAS, the EDA and the City both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the Master Modification To Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994; and WHEREAS, the purpose of the 1999 amendment is to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF Districts; and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000.00 to ISD 281 for construction by ISD 281 of a gym expansion and tennis court addition at Cooper High School, together with certain related site improvement and other work (collectively, the "Project"), all as will be more fully described and set forth in the plans and specifications to be mutually agreed to by the City, EDA and ISD 281 and, by subsequent amendment to this Agreement, attached hereto as Exhibit A (together with any and all exhibits, amendments, modifications and change orders thereto, collectively referred to herein as the "Plans"); and WHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 agrees to enter into a Facility Use Agreement with the City, in the form attached as Exhibit B (the "Facility Use Agreement") permitting the City to have primary use of the gym expansion during certain periods when the gym expansion is not in use for school purposes as set forth in the Facility Use Agreement; and WHEREAS, in further consideration for the City's and EDA's financial contribution, ISD 281 agrees to use the funds and construct the gym addition/expansion in accordance with the terms and conditions of this Cooper Gym Expansion Development Agreement. ::OD!'.fA \PCDOCS\RlDER\4311230\5 October 27, 1999 ARTICLE I Definitions Section 1.01 Defined Terms. As used in this Agreement, the follo\ving terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the tern1S defined): (a) "Advance" - In each instance, an advance made or to be made by the City and/or EDA to ISD 281 pursuant to Article II hereof. (b) "Architect" - Wold Architects and Engineers, which will administer the Construction Contract Documents. (c) "Completion Date" - June 1,2001 (unless ISD 281 shall extend such date in writing, then the Completion Date shall be such later date), being the date of required completion of the Project. (d) "Construction Contract" - The construction contract to be entered into between ISD 281 and the General Contractor regarding the construction of the Project. (e) "Construction Contract Documents" - The document or documents, including \vithout limitation the Construction Contract and the Plans, which, together with any and all exhibits, amendments, modifications and change orders thereto, collectively form the contract or contracts between ISD 281 and the General Contractor concerning construction and/or rehabilitation of the Proj ect. (f) "Contribution Amount" - This term shall have the meanmg ascribed to it III Section 2.01 below. (g) "Draw Requisition" - The draw requisition, in the form attached hereto as Exhibit C, vvhich is to be submitted to the City when an Advance is requested, and which is referred to in Section 2.02 hereof. (h) "Engineer" - KARGES-FAULCONBRIDGE, INC., a Minnesota corporation. (i) "Event of Default (City/EDA)" - One of the events of default specified in Section 6.01(b) hereof. U) "Event of Default (LSD 281 )" - One of the events of default specified in Section 6.01(a) hereof. (k) "Facility Use Agreement" - This term shall have the meaning ascribed to it in the Recitals above. ,OD:-.1A\?CDOCS\RIDER"': }Xl::lh5 October 25. l'l'}') 2 (1) "General Contractor" - The person or entity selected by ISD 281 to serve as the general contractor for the Project. (m) "Inspecting: Official" - The City Building Official or City Engineer, Bonestroo, Rosene, Anderlik & Associates. (n) "Plans" - This term shall have the meaning ascribed to it in the Recitals above. (0) "Project" - This term shall have the meaning ascribed to it in the Recitals above. (p) "Real Estate" - The land upon which the Project is located, described on Exhibit D attached hereto, commonly known as Cooper High School located in the City of New Hope. (q) "Subcontractor" - Any person, other than the General Contractor, who shall be engaged to \vork on, or to furnish materials and supplies for, the Project. ARTICLE II Commitment to Make Contribution Section 2.01 City Contribution/Cost Sharing:. The City and EDA agree, subject to the conditions hereinafter set forth, to contribute to ISD 281 in an aggregate principal amount not to exceed Three Million Two Hundred Fifty Thousand ($3,250,000.00) (the "Contribution Amount") for construction of the Project. ISD 281 shall not be obligated to repay the City or EDA any portion of this contribution if the Project is completed substantially in accordance with the Plans and the Facility Use Agreement is entered into by the parties, subject only to the obligation ofISD 281 to pay the Termination Fee in the event of any termination of the Facility Use Agreement in accordance with Section 5 .02(b) thereof. The total construction cost for the Project is estimated at $3,490,000.00. The parties will share the Project costs as set forth in the Project Cost Sharing Schedule attached hereto as Exhibit E. Not withstanding this agreement to share construction costs, in no event will the City be required to contribute more than the Contribution Amount to the cost for the Project. ISD 281 also acknowledges and agrees that the City's costs for those items described in Section 2.01(a) below \vill be paid from and included as part of the Contribution Amount. ISD 281 further acknowledges and agrees that the costs of ISD 281 for purchase of equipment described in Section 2.01 (b) below shall not be paid from the Contribution Amount. The net effect of this cost sharing provision is that the entire Contribution Amount will not be available to ISD 281 solely for construction costs, but \vill additionally include those costs described in Section 2.01 (a) below. (a) Citv's Costs. ISD 281 acknowledges and agrees the City intends to sell bonds to finance the Contribution Amount. ISD 281 further acknowledges and agrees the City intends to make equipment purchases for (i) the concession room to be constructed as part of the Project, and (ii) a music/sound system to be installed as part ofthe Project. As herein agreed, these costs will be OD\ IA \PCDOCS\RIDER.~:; XZJIL; Oc:obcr25.1'1'.)'! .., .) paid from the Contribution Amount. The City's costs to be funded from the Contribution Amount are estimated as follows: (i) general engineering and legal costs - $25,000.00 (ii) bond issuance costs - $75,000.00 (including consultant and bond attorney fees) (iii) $ 1 0,000.00 all concession room equipment (coolers, freezers, cookers, pop machine, etc.) - (iv) music equipment/sound system - $5,000.00 The parties agree the referenced costs are estimated and that the actual costs incurred by the City will be controlling to determine the remaining Contribution Amount available to ISD 281 for construction costs. (b) ISD 281 Excluded Costs. ISD 281 further ackno\-vledges and agrees that its costs for the following items will not be funded from the Contribution Amount: (i) Volleyball standards and nets (ii) All tennis nets, wind screens, poles, flags and bleachers for tennis courts (iii) All equipment needed for the ball fields including but not limited to bleachers and scoreboards Section 2.02 Draw Requisitions. Whenever ISD 281 requires an advance hereunder, which shall be no more often than monthly, ISD 281 shall submit to the City a Draw Requisition, duly completed and executed on behalf of the ISD 281, setting forth the information requested therein. Each Draw Requisition shall be certified as true and accurate by the Architect relative to the percentage of work completed on which payment is requested. Each Draw Requisition with respect to construction items shall be limited to amounts equal to (i) the amount of work actually completed, plus (ii) the value of materials and equipment not incorporated in the Project, but delivered and suitably stored on or off the Project site in a manner reasonably acceptable to City, less (iii) any retainage required under the Construction Contract (in an amount not less than five percent (5%) of the contract amount, or portion thereof (except as to Draw Requisitions to fund the retainage in accordance with the Construction Contract)), and (iv) less prior Advances, to the extent such prior Advances consisted of prepayments of any of the foregoing. . :OD:"IA\?CDOC S\R lDER''';:; X2]\"'j October.:!.). I')')') 4 At the time of submission of each Draw Requisition, ISD 281 shall submit to the City the following: (a) A waiver of mechanic's lien and/or materialman's lien, executed by the General Contractor in the amount of the lienable costs of the Project payable from the requested advance, together with a waiver of mechanic's lien and/or materialman's lien, executed by each Subcontractor, to which any portion of the immediately preceding Advance ("Prior Advance"), if any, was paid, covering liens for all work done and materials supplied for which disbursement was made from the Prior Advance, in the form reasonably required by the City. (b) Such other supporting evidence as may be reasonably requested by the City to substantiate all payments which are to be made out of the relevant Draw Requisition and/or to substantiate all payments then made with respect to the Project. (c) Satisfactory evidence that all \vork then requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such jurisdiction, and that all then required certificates of occupancy and other approvals by municipal or other governmental authorities having jurisdiction have been issued. If on the date an Advance is desired, ISD 281 has performed all of its agreements and complied with all requirements therefore to be performed or complied with hereunder, and the Inspecting Oftlcial approves the relevant Dra\v Requisition, which approval shall not be unreasonably withheld, the City shall disburse such funds directly to ISD 281 on such date. If the Inspecting Official does not so approve the Draw Requisition, the Draw Requisition shall nevertheless be deemed approved in the event the City fails to notify ISD 281 in writing of the reason for such disapproval within five (5) business days of either the City's receipt of the Draw Requisition. Section 2.03 Citv Inspections. City shall have the right but not the obligation, and solely for its o\vn protection, to make such inspections of the improvements as it deems advisable. ISD 281 acknowledges that it does not and shall not reply upon any inspections which City may make pursuant hereto. City and its agents, inspectors, and employees may enter upon the Real Estate at any reasonable time to inspect the progress of construction. City is not responsible for seeing that the improvements are constructed in accordance with the Plans, that the improvements contemplated under the Construction Contract Documents will be completed, that sufficient funds will be available for completion, or that the design, engineering details, or architectural features are adequate or appropriate. City shall also not be required to provide architectural supervision of construction or any services related to construction quality control or judgment. All inspections by, or on behalf of, the City in accordance \vith this Section 2.03 shall be at the City's sole cost and expense, payment for which shall be in addition to, and not as part ot~ the amount of the Contribution Amount. Section 2.04 Advances Without Receipt of Dravv Requisition. Notwithstanding anything herein to the contrary, the City shall have the irrevocable right at any time and [rom time to time, ODM..VPCDOCS\R I DERA:; ~2J( l\5 5 O-.:lohi:r25. j'J'ilJ to apply funds which it agrees to advance hereunder to pay any and all of the expenses referred to in Section 7.04 hereof, all without receipt of a Draw Requisition for funds from ISD 281. ARTICLE III Conditions of Funding Section 3.01 Condition Precedent to Anv Advance. The obligation of the City to approve Advances hereunder shall be subject to the condition precedent that it shall have received the following on or before the date of the initial draw request: (a) The Plans. (b) A copy of the fully executed Construction Contract Documents, with such contracts being reasonably acceptable to the City. (c) A s\vorn construction statement duly executed on behalf of ISD 281, in form and substance reasonably satisfactory to the City, sho\ving all incurred and anticipated costs and expenses for construction of the Project. (d) obtained. Evidence reasonably satisfactory to the City that all then required permits have been (e) Copies of, or binders for the delivery of, or certificates evidencing, the policy of fire and extended coverage and comprehensive general liability insurance required under Section 5.01 (c) hereof, with all such insurance in full force and effect. (f) The Facility Use Agreement duly executed by ISD 281. (g) Any and all such other documents and agreements which City deems reasonably necessary to establish that there are sufficient additional funds, after giving effect to the City's Advance and in addition to the remainder of the Contribution Amount, to pay for the unfunded portion of the vvork remaining to be performed under the Construction Contract Documents. Section 3.02 Further Conditions Precedent to Anv Advance. The obligation of the City to make any Advance hereunder shall also be subject to the follo\ving conditions precedent: (a) No Event of Default (ISD 281) hereunder, or event which \vould constitute such an Event of Default (ISD 281) but for the requirement that notice be given or that a period of grace or time elapse, shall have occurred and be continuing. OD~IA\PCDOCS\R IDE.R',.1_,XZ~fr5 October 15. I')')') 6 ARTICLE IV Representations and \Varranties Section 4.0 1 Representations and Warranties ofISD 281. ISD 281 represents and warrants as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are within the powers of ISD 281 and do not violate any provision of la\v to which ISD 281 is subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are the legal, valid and binding obligations ofISD 281 enforceable against ISD 281 in accordance with their respective tem1S. ( c) ISD 281 has title to the Real Estate. (d) The Project will be constructed substantially in accordance with the Construction Contract Documents, will be constructed entirely on the Real Estate, and will not encroach upon or overhang any easement right-of-way ofland not constituting part of the Real Estate. (e) The Project and the contemplated use thereof, both during construction and at the time of completion, will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record. (f) ISD 281 agrees that it will fumish from time to time such satisfactory evidence regarding the representations and warranties described herein as may be required by the City. Section 4.02 ReDresentations and \Varranties of the Citv and EDA. The City and EDA do each represent and warrant as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are within the powers ofthe City and EDA and do not violate any provision oflaw to which either or both the City and EDA are subject. (b) This Agreement, the Facility Use Agreement and any and all other documents refened to herein to which either or both the City and EDA are a party, are the legal, valid and binding obligations of the City and EDA, as applicable, enforceable against the City and EDA, as applicable, in accordance with their respective terms. OD\lA'_PCDQC S'R1DER \~ _~ ~l:;O\j O-:!ob"r ~5. 1L)',') 7 ARTICLE V Additional Covenants Section 5.01 Covenants ofISD 281. ISD 281 agrees that: (a) ISD 281 will cause construction ofthe Project to commence, and thereafter will cause the Contractor or Contractors to diligently proceed \vith construction of the Project according to the Construction Contract Documents, so that the Project can be completed by the Completion Date. ISD 281 further agrees to provide all funds required over and above the Contribution Amount to the extent such additional funds should be necessary to complete the construction of the Project. (b) ISD 281 will comply with the Uniform Municipal Contracting Law, as enacted in the State of Minnesota, in letting contracts and expending public funds on this project. Also ISD 281 will require the General Contractor to comply with all rules, regulations, ordinances and laws bearing on its conduct of work on the Project. ( c) ISD 281 will provide and maintain at all times during the process of building the Project, and, from time to time at the request of the City, furnish the City with proof of payment of premiums on, the following insurance: (i) fire and extended coverage, in an amount equal to the lesser of the aggregate amount of the City's Advances or the full insurable value of the Project, with the City named as loss payee, and to include an overlap endorsement or rider covering the risk of any rehabilitation work; (ii) comprehensive general liability insurance, including the City as a named insured, with limits against bodily injury and property damage in an amount greater than or equal to the limits ISD 281's statutory immunity under MiImesota law; The policies of insurance required pursuant to Sections 5.01 (c)(i) and (ii) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed \vith financially sound and reputable insurers licensed to transact business in the State of Minnesota. The policy of insurance delivered pursuant to Section 5.01 (c) (i) hereinabove shall contain an agreement of the insurer to give not less than ten (10) days advance \vritten notice to the City in the event of cancellation of such policy or change affecting the coverage thereunder. (d) ISD 281 will cause the General Contractor to maintain at all times during the process of building the Project, and, from time to time at the request of the City, cause the General Contractor to furnish the City \vith proof of payment of premiums on, the following insurance: (i) comprehensive general liability insurance, including the City and ISD 281 as a named insured, with limits (i) against bodily injury of not less than $1,000,000, and (ii) against property damage of not less than $250,000 (to om.I.-\PCDOCS\R !DER '.': ,x:!:i\rj 8 OClobcr25.I')')\,1 accomplish the above-required limits, an umbrella excess liability policy may be used); and (ii) \vorkmen's compensation insurance, with statutory coverage. The policy of insurance required pursuant to Section 5.01 (d)(i) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with a financially sound and reputable insurer licensed to transact business in the State of Minnesota. Acceptance by the City of an insurance policy delivered pursuant to Section 5.01 (d)(i) hereinabove shall not bar ISD 281 from requiring additional insurance which it reasonably deems necessary. ( e) ISD 281 will pem1it the City, acting by and through its officers, employees and agents, to examine all books, records, contracts, plans, drawings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. (f) ISD 281 will furnish to the City, as soon as possible and in any event within ten (10) days after ISD 281 has obtained actual knowledge thereof, written notice of the occurrence of each Event of Default (rSD 281), or each event w'hich with the giving of notice or lapse of time or both would constitute an Event of Default (ISD 281), which is continuing on the date of such statement, the statement ofISD 281 setting forth details of such Event of Default (ISD 281) or event and the action which ISD 281 proposes to take with respect thereto. (g) ISD 281 agrees that, without the prior \vritten consent of the City, it will not agree or consent to any material changes in the Construction Contract Documents, or to any change orders thereto, individually exceeding $25,000.00 without the consent of City, \vhich consent will not be umeasonably withheld. Any change orders not exceeding $25,000.00, approved w'ithout the prior consent of the City will be presented to the City for revie\v as soon as practicable after its approval by ISD 281; provided, however, the City shall have no right to object to the fom1 or content thereof. Section 5.02 Covenants of the Citv and EDA. The City and EDA agree that: (a) The City and EDA will furnish to ISD 281, as soon as possible and in any event within ten (l0) days after either or both the City and EDA have obtained actual kno\vledge thereof, wTitten notice of the occurrence of each Event of Default (CityIEDA), or each event which with the giving of notice or lapse of time or both \vould constitute an Event of Default (City/EDA), which is continuing on the date of such statement, the statement of the City and EDA setting forth details of such Event of Default (City/EDA) or event and the action which the City and EDA propose to take with respect thereto. OD~I..\'J}CDOCS",R IDER\':::;Xl::;0\5 October!5.1')I)<) 9 ARTICLE VI Events of Default and Rights and Remedies Section 6.01 Events of Default. (a) ISD 281 Events of Default. The following shall constitute Events of Default (ISD 281): (i) ISD 281 shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or perforn1ed by ISD 281 hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of written notice of default to ISD 281. (ii) Any representation or warranty made by ISD 281 herein, or in any financial statement, certificate, report or Dra\v Requisition furnished pursuant to this Agreement, or in order to induce the City to approve any Advance hereunder, shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty \vas made. (iii) The Project is materially damaged or destroyed by fire or other casualty and the loss, in the reasonable judgment of the City, is not adequately covered by insurance actually collected or in the process of collection. (iv) The construction ofthe Project is abandoned, or shall be unreasonably delayed beyond the Completion Date (subject to such extensions as may be permitted in accordance with the Construction Contract Documents), or shall be discontinued for a period oft\venty (20) consecutive calendar days, in each instance for reasons other than acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment or labor, governmental restrictions or any similar cause over \vhich ISD 281 is unable to exercise control. (v) The Project is not substantially completed in accordance with the Plans or Construction Contract Documents. (b) Citv/EDA Events of Default. The following shall constitute Events of Default (CityIEDA): (i) Either or both the City and the EDA shall fail to duly observe or perform any ofthe material terms, conditions, covenants, or agreements required to be observed or performed by either or both the City and the EDA hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of\\Titten notice of default to the City and the EDA. (ii) Any representation or warranty made by the City or EDA herein, or in any financial statement, certificate, or report furnished pursuant to this Agreement shall prove to have OD~I..\',PCDOCS\R IDER'A::; S~::;\L5 Ocrob:::r15. I'}')'} 10 been untrue in any material respect or materially misleading as of the time such representation or warranty was made Section 6.02 Rig:hts and Remedies. (a) Rig:hts and Remedies Upon Event of Default (LSD 281) . Upon the occurrence of an Event of Default (ISD 281) and at any time thereafter until such Event of Default (ISD 281) is cured to the reasonable satisfaction of the City, the City may, at its option, exercise any and all of the follo\ving rights and remedies, along with any other rights and remedies available to it: (i) The City may, by notice in wTiting to ISD 281, refrain from approving Advances hereunder (but City may make Advances after the occurrence of an Event of Default without thereby \vaiving its rights and remedies hereunder), or terminate this Agreement; and (ii) The City shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attomeys' fees. (b) Rig:hts and Remedies Upon Event of Default (Citv/EDA) . Upon the occurrence of an Event of Default (CityIEDA) and at any time thereafter until such Event of Default (City/EDA) is cured to the reasonable satisfaction ofISD 281, ISD 281 may, at its option, exercise any and all of the rights and remedies available to ISD 281 under applicable law, including \vithout limitation the following: (i) ISD 281 shall be entitled to terminate either or both this Agreement and the Facility Use Agreement; and (ii) ISD 281 shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including \vithout limitation reasonable attorneys' fees. ARTICLE VII Miscellaneous Section 7.01 Inspections. ISD 281, Architect and the Engineer, shall be responsible for making inspections of the Project during the course of construction, and shall determine to their o\vn satisfaction that the work done or materials supplied by the General Contractor and Subcontractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the applicable contracts with such General Contractor and Subcontractors. If any work done or materials supplied by the General Contractor or a Subcontractor are not reasonably satisfactory to ISD 281, the Architect and/or the Engineer, or if the General Contractor or a Subcontractor does not materially comply with the Construction Contract Documents in any material respect. ISD 281 will, upon discovery thereof, promptly' notify the City in writing of such fact. It is expressly understood and agreed that the City and its Inspecting Official may, at the City's sole cost and expense (and \vithout reduction of the amount ofthe Contribution Amount), conduct such OD~L-\,?CDOCS\R I DERA:; X2}(l',5 OCloberl).I')<)<) 11 inspections of the Project as either may deem necessary for the protection ofthe City's interest, and that any inspections which may be made of the Project by the City or the Inspecting Official are made, and all certificates issued by the Inspecting Official \vill be issued, solely for the benefit and protection of the City, and that ISD 281 will not rely thereon. Section 7.02 Indemnification. (a) Indemnification bv ISD 281. ISD 281 shall bear all loss, expense (including attorney's fees) and damage in connection \V'ith, and agrees to indemnify and hold harmless the City, its agents, servants and employees from all claims, demands andjudgments made or recovered against the City, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of the City or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with the construction of the Project, whether or not due to any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct ofISD 281, the General Contractor or any Subcontractor, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of the City, its employees, servants or agents. The obligation of ISD 281 under this Section 7.02(a) shall survive completion of the Project. (b) Indemnification bv Citv/EDA. The City and EDA shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnify and hold harmless ISD 281, its agents, servants and employees from all claims, demands andjudgments made or recovered against ISD 281, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property ofISD 281 or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in cOlmection with any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct of the City or EDA, or its or their employees, servants or agents, excluding, hovvever, any claims, demands or judgments due to acts of omission or commission of ISD 281, its employees, servants or agents. The obligation of the City and EDA under this Section 7.02(b) shall survive completion of the Project. (c) Limitations on Indemnitv. Notwithstanding Sections 7.02(a) and 7.02(b) of this Agreement, ISD 281, the City and EDA shall, and do hereby, release each other from all claims, demands, liabilities, judgments and expenses to the extent subject to and in excess of each party's limits of statutory immunity under Milmesota law, or to the extent otherwise covered, or required under this Agreement to be covered, by insurance. Section 7.03 Title to Proiect. Notwithstanding anything to the contrary in this Agreement or otherwise, and except only as othef\vise provided in the Facility Use Agreement. title to the Project. together with any and all rights and interests. legaL equitable or otherwise, therein, shall at all times be vested solely with. in and to ISD 281. OD\lA,PCDOC SRlDER,'; ~X2::;IL5 Or.:!Ob::r15. l'J')'} 12 Section 7.04 Fees. Whether or not any Advance shall be made hereunder, ISD 281 agrees to pay all fees including inspection fees, appraisal fees, survey fees, recording fees, license and permit fees and title insurance and other insurance premiums relating to the Project, all of \vhich fees, costs and expenses shall be subject to pro rata reimbursement from the Contribution Amount. Section 7.05 Addresses for Notices. All notices to be given by either party to the other hereunder shall be in \YTiting and deemed to have been given when delivered personally or when deposited in the United States Mail, registered or certified postage prepaid, addressed as follows: To ISD 281 at: Thomas H. Walerius Independent School District 281 Education Service Center 4148 \Virmetka Avenue North New Hope,.tvfN 55427-1288 To the City and EDA at: Daniel 1. Donahue, City Manager City of New Hope 4401 Xylon Avenue North New Hope, fv'IN 55428 or addressed to such party at such other address as such party shall hereafter furnish by notice to the other party. Section 7.06 Termination of this AQreement. The obligations of all parties under this Agreement, but not under the Facility Use Agreement or any other agreement(s) attached hereto or incorporated herein by reference, shall cease upon (i) payment by City ofthe Contribution Amount in accordance \vith this Agreement, and (ii) City's certification that the construction of the Project has been completed in accordance with the Plans and Construction Contract Documents. Section 7.07 Time of Essence. Time is of the essence in the performance of this Agreement. Section 7.08 BindinQ Effect and AssiQnment. This Agreement shall be binding upon and inure to the benefit of ISD 281 and the City and their respective successors and assigns. Section 7.09 Waivers. No waiver by the City or ISD 281 of any default hereunder shall operate as a waiver of any other default or of the same default on a future occasion. No delay on the part of the City or ISD 281 in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. OD~1A \PCDOCS\R1DE?',~; S2}lfj October:!). 1')'1') 13 Section 7.10 Remedies Cumulative. The rights and remedies herein specified of each of the City and ISD 281 are cumulative and not exclusive of any rights or remedies which either or both the City and ISD 281 vvould otherwise have. Section 7.11 Governing Law and Entire Agreement. This Agreement shall be governed by the laws of the State of Minnesota. This Agreement contains the entire agreement of the parties on the matters covered herein. No other agreement, statement or promise made by any party or by any employee, officer, or agent of any party that is not in v\rriting and signed by all the parties to this Agreement shall be binding. Section 7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. IN \VITNESS 'VHEREOF, the parties hereto have executed this Agreement, or caused it to be executed by their duly authorized officers or partners, as of the date first above wTitten. CITY OF NE\V HOPE By -/} ~' d ~ if . / //< / ..(bt--?t ( Its Mayor INDEPENDENT SCHOOL DISTRICT No. 281 ~.---; ~ , ,~i/ // . .... #'l..,./..!. I / By (/ fv--..J..../ Its ~ By ~~h~ / Its City Manager By Its ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope /7 ~ ?i/ ,V, 7 7ifJf:L~~J Its President By ~zJ~ Its Executive Director By OD\I.;'PCDOCS,~o..JDERA :;X210\5 October:!5.1')')') 14 A . //""~i The foregoing was acknowledged before me this ,.;jJ day of CVct 1999, by W. Peter Enck and Daniel 1. Donahue, the Mayor and City Manager, respectively, of the City ofNe\v Hope, a Minnesota municipal corporation, onjJehalf of said municipal corporation. , L,i /) Y./14 Ill! 1'/1 /. f SJ' (. 117u , Notary Public I STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) VALERIE J. LEONE NOTARY PUBLIC - MINNESOTA My Commission Expires January 31. 2000 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing was ackno\vledged before me this c:.7\ k day of (kt , 1999 by W. Peter Enck and Daniel 1. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, a Minnesota municipal corporation, on behalf of said corporation. f' . 1i1'" - ;""c~ VALERIE J. LEONE ! NOTARY PUBLIC - MINNESOTA My Commission Expires January 31. 2000 ~~...,_.:.-...~~..~~..~ STATE OF MINNESOTA ) ) ss. COUNTY OF HEi\TNEPIN ) ~ - //, t 17Jtllj.t/j.. Ui W7rLL Nofary Public tI - I The for~oing was ackno"{ledged before me this :1 '!..t( day o~ . 1999 v and I~ I(~ the . e1~'and .~ respectively, of Independent School District 281, a MiImesota , on behalf of said ~ Q , ~ 1~!I. No ry Public ~!~;,'A.:''',,;'f;;'il'"\.~V,<-:~A,:l':.zlY''~i1l ~. 0. Ll)ND I ~-M!N:"ESOTA ,,,,on ='~.res Jan 31, 20()() ~l!'! OD~IA'?CDOCS\RIDER\~J XZ3frj Octcber:!.5. Ill'}') 15 EXHIBIT" A" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Plans [To be provided by City, EDA and ISD 281] . :ODMA\PCDOCS\RIDER\~JS230\:5 Octobcr25.19<)<} EXHIBIT "B" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Form of Facility Use Agreement FACILITY USE AGREEMENT AGREEMENT made this di day of (f) d , 1999 by and between the CITY OF NEW HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter "ISD 281 "). RECITALS WHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gynmasium, on real propelty legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); WHEREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); WHEREAS, the parties desire to provide for joint use ofthe Facility; WHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1. 02 Term. TIus Agreement shall be for a term of forty (40) years cOlllillencing 011 the date of substantial completion of the Facility and expiring on June 30, 2040. ::ODMA\PCDOCS\RIDER\.tJR25'1\..'i October 2:5. 1999 1.03 Use and Scheduling:. The facility shall be used by the parties as follows: a. until 5 :30 p.m. ISD 281 will have primary use of the Facility on school days from 6:00 a.m. b. The City will have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably withheld if time is available. d. The City will supervise the Facility when it has primary use of the Facility and shall hire and pay any building attendant necessary to perform such supervision. Supervision shall not include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the City when the Facility is under City use (the "Principal Activity"), together \vith supervision of any and all uses or activities associated with, or related to, such Principal Activity, including without limitation supervision of such interior or exterior common areas and parking areas as may be used by employees or invitees of the City in connection with such Principal Activity. However, the City will be responsible for cleaning the concession room area and equipment after each use by the City. However, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of general routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. e. The City \vill have reasonable access to the Facility during its primary use time. f. ISD 281 will pernlit the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281' s reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it \villnot be permitted use ofthese areas \vithout the written consent of the City. h. The City and ISD 281 shall meet at least annually to review the Facility use schedule. 1.04 Alcohol and Tobacco Policy. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions ofMillli. Stat. ~ 624.701; that ISD 281 's alcohol and OD~I.-\ \J'CDOCS\R1D ER~,~;X25,}',j O,-'1ob.::r15.1')')'I 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; and that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and Maintenance of Facility 2.01 Ownership. ISD 281 is the owner of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Upkeep. ISD 281 will be responsible for all maintenance, repairs, replacement and upkeep of the. Facility necessary to keep the Facility in good repair and clean condition. However, the City acknowledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1. 0 3 (g) of this Agreement. 2.03 Operating: Cost and Utilities. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. However, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each party will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Millli. Stat. ~ 466.04. ISD 281 \vill be named as an additional insured on the City's policy and the City will be named an individual insured on ISO 281 's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bv ISD 281. ISD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the ISD 281 's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by ISD 281 of this Agreement, except to the extent caused by the City's gross negligence or willful misconduct. In the event any action or proceeding shall be OD~1.-\\PCDOCS\R:DER' ~;:c 5'1.:; OClob<.'f25.1')')'/ .., .J brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 281's expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harnlless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City of this Agreement, except to the extent caused by the ISD 281's gross negligence or willful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall 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 levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute which also involves a material breach authorizing the nonbreaching party to exercise its rights under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance with this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the ternlS of this Agreement, the party alleging the breach may, in addition to, and not in lieu of, any other remedies available to such party under Section 4.01 of this Agreement or otherwise under applicable law, 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 \vritten 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 :OD:-'f.-\";?CDOC.S\RIDEK."'; ~X15'}'5 Oc1oo",rl.'i.I')"'J 4 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 for the City or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty (30) 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. 5.02 Termination Without Cause. This Agreement may be terminated without cause as follows: a. Either party may terminate this Agreement prior to the aViard of contract to construct the Facility by giving \vritten notice of such termination to the other. ISD 281 shall give the City ten (10) days written notice of its intent to award a contract. If this Agreement is terminated in accordance with this Section 5.02(a), any and all actual out-of-pocket costs incurred by the non-terminating party shall be paid by the terminating party. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, ofadvance written notice of termination (an "Early Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount, inclusive of interest calculated at a fixed rate of interest equal to five percent (5%) per annum, in accordance with the Ternlination Fee Schedule attached hereto as Exhibit C (the "Termination Fee"). Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all rights to specific performance, damages, or any other remedy available in equity or in law. ARTICLE VI Miscellaneous 6.01 Building: Securitv. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together with any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement, ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance \vith Section 1.03(b) of this Agreement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility, including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance with such reasonable rules and regulations as ISD 281 may issue from time to time. The City hereby agrees to indemnify and defend ISD 281 from and against any and all claims, demands, liabilities, and expenses, 'OD~.I:\ 'PCDOCS\R I DER \.j'X"!.:")\5 O:::obcr25. {'J']'} 5 including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationship of Parties. The parties hereto agree that it is their intention hereby to create only the relationships of licensor and licensee, and no provision hereof, or act of either party hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assig:nment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. 6.04 Binding: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective pernlitted successors and assigns. 6.05 Severabilitv. If any prOVISIOns of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 Governing: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. ::OD~IA"PCDOCS\R IDER"~.;X25';\5 0;:1obcr15.1')')') 6 IN WITNESS WHEREOF, the parties have subscribed their names as of the day and year first above written. INDEPENDENT SCHOOL DISTRICT NO. 281 By Its By Its CITY OF NE\V HOPE /J ~ ;:; By 2{gX(t;~/f-e4 Its Mayor J{ ('1) ) /1 By ~~~'U-k-.-l{UA..... Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) '(he forc:going instrument was acknowledged before me this~ day of ((7 (t /t ,1999, by lU I!tIL-c (Ilr /( and j){IfYf'LflJ6flcJUf- ,respectively the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. VALERIE J. LEONE NOTARY PUBLIC - MINNESOTA My Commission ExpIres J8nuary 31. 2000 Y;muL~lL Notary Public ::OD~ IA\PCDOCS\RIDER\~ :;X25')\5 October!,. I'}')'} 7 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) "a5 }J~."..(. before me thi~ day of I ~ , 1999 by , the~~~and School District No. 281 on behalf of said . JUDITH D. LUND I NOTARY PUBLIC. MINNESOTA My Commission Expires Jan. 31, 2000 III pf/)~ Notar Public \ ::OD~tA\.PCDOCS\R IDER \~J:C.5'r,5 Cktobcr15.1'J'J'J 8 Parcell: Parcel 2: ::OD~1A,\PCDOCS\RIDER\43 8259\5 October 25. 1999 EXHIBIT A TO FACILITY USE AGREEMENT Legal Description East Yi of the Northwest Y4 of the Southeast Y4, Section 7, Township 118, Range 21 according to the Govermnent Survey thereof, excepting the South 30 feet of the East 30 feet thereof. West Yi (W Yi) of the Northeast Y4 (NE Y4) of the Southeast Y4 (SE Y4), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the West Yi (W Yi) of the Northeast Y4 (NE Y4) of the Southeast Y4 (SE Y4), Section 7, Township 118, Range 21; and (b) That part of the Northeast Y4 (NE Y4) of the Southeast Y4 (SE Y4), Section 7, Township 118, Range 21, lying North of 47th Avenue North and lying between a line drawn 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in LYlU1Croft Addition. EXHIBIT B TO FACILITY USE AGREEMENT Site Plan FLOOR PLAN 1132. ~ 1'-0. Na1 TO pAAlOO<] ~ ,. :-; :;:-:. ~ EXlSTm m:::: -...'- -...'- I I I I I I L _ ~~ 1_ _ -1 L _ ~~2_ _-1 .. .. I I I I !i! Ii! g z; I I ~ I I I. < .... .. .. I I 5 I I ... "' I () ~ ~ I '" I I I "' c r------, '" r.------, 8 0 <> () I I I I I I I I -,....- -,,- . .. me:: :~ .~~ .?' l:: .t H~~-H:*e~;~....;~:;:; )::'ilif' Yo r-w.~ ~ ~ . "".w.....~:,...~~~1. ,.,..,.., .::,_.... . ~=~ 6TOAAGE ......................X?w..x . ..........n. <-:<<".....~~~r~ } k~f~~ TO~=m, ::OD!\;t-\\PCDOCSIRIDER\~3S25'J\5 Octoher25.1999 EXHIBIT C TO FACILITY USE AGREEMENT Termination Fee Schedule TERMINATION TERMINA TrON TERMINA TrON TERMINATION DATE FEE DATE FEE June 30, 2001 $3,223,096 June 30, 2021 $2,289,008 June 30, 2002 $3,194,847 June 30, 2022 $2,214,055 June 30, 2003 $3,165,185 June 30, 2023 $2,135,354 June 30, 2004 $3,134,040 June 30, 2024 $2,052,717 June 30, 2005 $3,101,338 June 30, 2025 $1,965,949 June 30, 2006 $3,067,001 June 30, 2026 $1,874,842 June 30, 2007 $3,030,947 June 30, 2027 $1,779,181 June 30, 2008 $2,993,091 June 30, 2028 $1,678,736 June 30, 2009 $2,953,341 June 30, 2029 $1,573,268 June 30,2010 $2,911,604 June 30, 2030 $1,462,528 June 30, 2011 $2,867,780 June 30, 2031 $1,346,250 June 30, 2012 $2,821,765 June 30, 2032 $1,224,159 Jtme 30,2013 $2,773,449 June 30, 2033 $1,095,962 June 30, 2014 $2,722,718 June 30, 2034 $961,357 June 30, 2015 $2,669,450 June 30, 2035 $820,020 June 30, 2016 $2,613,518 June 30, 2036 $671,617 June 30, 2017 $2,554,790 June 30, 2037 $515,794 June 30, 2018 $2,493,126 June 30, 2038 $352,180 June 30, 2019 $2,428,378 June 30, 2039 $180,385 June 30, 2020 $2,360,393 June 30, 2040 $0.00 ::OD:-'1A \PCDOCS\RIDER\43S25'i\.5 October 25. 19'19 EXHIBIT "C" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Form of Draw Requisition ,20_ City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Attention: Daniel J. Donahue City Manager Re: Cooper High School Gymnasium Expansion, Tennis Court Construction and Related Work/Payment Request No._ Dear Mr. Donahue: The attached invoices, sUll1ffiarized on Exhibit A attached hereto, represent work performed in connection with the "Project", as that term is defined in that Cooper Gym Expansion Development Agreement, dated , 1999, by and between Independent School District No. 281 and the City of New Hope. The total amount of the requested payment equals $ Please submit the City's payment to my attention at the District. Please call me at 504-8037 if you have any questions. Thank you. Sincerely, INDEPENDENT SCHOOL DISTRlCT NO. 281 By Thomas H. Walerius Senior Associate for Business Services ::ODMA \?CDOCS\RIDER\~3S23(l\5 October 25. 1999 EXHIBIT A TO FORM OF DRAW REQUISITION Cooper High School Gymnasium Expansion, Tennis Court Construction and Related Work Payment Request No. _ Date: ,2000 INVOICE INVOICE INVOICE TOTAL VENDOR NO. DATE AMOUNT BY VENDOR TOT AL: $ ::om.fA \PCDOCS\RIDER\-'3};230\5 October 25. 1<)99 EXIDBIT "D" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Legal Description of Real Estate Parcell: East Yz of the Northwest ~ of the Southeast ~, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. Parcel 2: West Yz (W Yz) of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, according to the Govemment Survey thereof, excepting therefrom: (a) The South 30 feet of the West Yz (W Yz) of the NOltheast ~ (NE ~) of the Southeast ~ (SE Y4), Section 7, Township 118, Range 21; and (b) That part of the Northeast ~ (NE ~) of the Southeast ~ (SE ~), Section 7, Township 118, Range 21, lying North of 47th Avenue North and lying between a line drawn 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in LYlU1croft Addition. : :ODMA \PCDOCS\RIDER\4)S230\S October!5. !\}'-)<) EXHIBIT "E" TO COOPER GYM EXPANSION DEVELOPMENT AGREEMENT Project Cost Sharing Schedule The following table provides an allocation of Project-related costs as between the City and ISD 281: PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF WORK CITyl ISD 2812 Construction: . Site Construction, Parking and Drainage, 100% 0% Perimeter Walks, Plantings along 47th A venue, Utilities (Sanitary Sewer, Storm Sewer, Water and Gas), and Related Work . Accessible Route to Ballfields, and 30% 70% Related Work, TelU1is Court Construction (including construction of 7 courts and related fencing, screen planting, access paths and drainage work), and Related Work . Gymnasium Facility (including general 100% 0% building construction, mechanical and electrical work), and Related Work IThe City's percentage of responsibility is as shown in this table subject only to the requirement that the City's aggregate percentage of responsibility for the entire Project shall in no event exceed the Contribution Amount. 2ISD 281's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage of responsibility as set forth in this table, which exceed the Contribution Amount. ::ODMA\PCDOCS\RIDER\438BO\5 October 25. 1999 EDA REQUEST FOR ACTION Community Development, Parks & Recreation Approved for Agenda 10/25/99 Agenda Section OIigLT1ating Department By: Kirk McDonald, Shari French By: EDA Item No. 4 RESOLUTION APPROVING THE COOPER GYM EXPANSION DEVELOPMENT AGREEMENT AND FACILITY USE AGREEMENT (IMPROVEMENT PROJECT #662) ACTION REQUESTED Staff requests that the EDA approve the attached resolution approving the Cooper Gym Expansion Development Agreement and Facility Use Agreement, which was prepared by the City Attorney. Final draft copies of each of the Agreements are also enclosed. POLICY/PAST PRACTICE The EDA's direction to the staff in the past has been to prepare Development and Facility Use Agreements that outline the terms and conditions under which the City and School District will participate in this project. BACKGROUND In April, the City Council met with representatives of the School District at a City Council Worksession to discuss options to add gyms to Cooper High School, after staff had met with District representatives earlier in the year to discuss community/school district needs and design options. The Council was favorable toward the proposal and directed that a public hearing be scheduled to consider modifying the redevelopment and tax increment financing plans to include the Cooper High School property in an area where tax increment financing (TIF) funds could be utilized for community center and recreational purposes. On June 28th, said public hearing was conducted and the Council and EDA approved resolutions modifying the redevelopment and tax increment financing plans to allow the expenditure of up to $3.25 million on the Cooper gyms expansion project, which also includes the reconstruction of tennis courts on the site with costs being prorated between the two entities. The approval of the resolutions authorized the use of TIF funds for the project, but did not commit the City to the project. Prior to a financial commitment. two additional steps needed to be taken: 1. Approval of the plans and zoning code approval for the expansion, and 2. The appropriate agreements needed to be drafted. MOTION BY ({i,C.lt-t'i/L TO: llat&7:Jt (~1)4 I?L<-; fI SECOND BY 99-// RFA-OOl Request For Action Page 2 In July, the plans were reviewed by the Planning Commission and the Commission recommended approval of the conditional use permit amendment request to the City Council. On August 9th, the City Council accepted the recommendation from the Commission and approved the plans and the CUP amendment request. Subsequent to the approval, staff and the City Attorney have been coordinating with the School District on the appropriate agreements. One of the issues that the City Council wanted addressed prior to consideration of the Cooper Gyms Agreement was the Ice Arena Rental Agreement. The School District approved an agreement acceptable to the City on October 4th, and the City Council approved the agreement on October 11th. With all of the above steps being completed, the EDA is now being requested to approve the final two agreements for the Cooper gyms project. Per the City Attorney's correspondence, the agreements outline the City/EDA's intent to provide Independent School District No. 281 with a $3,250,000 grant, primarily for the addition of new gyms at Cooper High School. In consideration for the contribution, the School District will provide the City with priority use of the gym facilities. The agreements are further defined by the City Attorney as follows: DEVELOPMENT AGREEMENT The Development Agreement sets forth the terms and conditions under which the $3.25 million grant will be disbursed to the School District during the construction phase of the project. The Development Agreement indicates that so long as the project is constructed in accordance with the construction contract and plans approved by the City and the Facility Use Agreement is signed by the School District, the School District will not be required to repay any portion of the grant. Also, the Development Agreement limits the City's contribution to no more than $3.25 million and from that amount, the City will pay for all of its engineering and legal costs, bond issuance costs, concession room equipment costs, and music equipment and sound system costs which will be incorporated into the project. FACILITY USE AGREEMENT The Facility Use Agreement sets forth the City's right to use the expanded gym facility for a 40-year term. Section 1.03 of the Facility Use Agreement describes how the City will be able to use the facility. The City will have the primary use of the facility during those times that school is not in session. This will be primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations. The Facility Use Agreement also sets forth a repayment schedule in Section 5.02 in the event the School District terminated this agreement prior to the expiration of its 40-year term. The 40- year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of the facility for accounting purposes. The City Attorney and Director of Parks and Recreation will be present at the EDA meeting to review the Agreements in more detail and answer questions. A representative from the School District will also be present. Staff recommends approval of the resolution approving the Agreements. ATTACHMENTS Resolution October 19th City Attorney correspondence Development Agreement Facility Use Agreement GORDON L. JENSEN* WILLIAM G. SWANSON STEVEN A. SONDRALL MARTIN P. MALECHA C. ALDEN PEARSONt JULIE A. THILL OF COUNSEL LORENS Q. BRYNESTAD 'Real Property Law Specialist Cenitiod By The Minn~sOta Stall: Bar Association tQualiriod ADR Neutral JENSEN SWANSON & SONDRALL, P.A. ;:J.ttorneys At Law 8525 EDINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1999 TELEPHONE (612) 424-8811 . TELEFA..X (612) 493-5193 E-MAIL jss@jsspa.com October 19, 1999 Kirk McDonald Community Development Director City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Re: Cooper Gym Expansion Development Agreement and Facility Use Agreement Our File No.: 99.11231 Dear Kirk: Please find enclosed for consideration at the October 25, 1999 Council and EDA meetings two proposed Resolutions Approving the Cooper Gym Expansion Development Agreement and Facility Use Agreement. Also enclosed are proposed drafts of each agreement. As you know, it is the City/EDA's intent to provide the Independent School District No. 281 with a $3,250,000 grant for the expansion of the Cooper High School Gym. It is my understanding these dollars will come from the City/EDA's existing tax increment financing funds. In consideration for the City's contribution, Independent School District No. 281 will provide the City with a priority use of the expanded Cooper Gym pursuant to the terms of the Facility Use Agreement being approved by the enclosed Resolution. Basically, the Development Agreement sets forth the terms and conditions under which the $3.25 Million grant will be disbursed to the School District during the construction phase of the project. The Development Agreement indicates that as long as the project is constructed in accordance with the construction contract and plans approved by the City and the Facility Use Agreement is signed by the School District, the School District will not be required to repay any portion of the grant. Also, the Development Agreement limits the City's contribution to no more than $3.25 Million and from that amount, the City will pay for all of its engineering and legal costs, bond issuance costs, concession room equipment costs, and music equipment and sound system costs which will be incorporated into the project. October 19, 1999 Page 2 The Facility Use Agreement sets forth the City's right to use the expanded gym facility for a 40 year term. Section 1.03 of the Facility Use Agreement describes how the City will be able to use the facility. Basically, the City will have the primary use of the facility during those times that school is not in session. This \vill be primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations. The Facility Use Agreement also sets forth a repayment schedule in Section 5.02 in the event the School District terminated this agreement prior to the expiration of its 40 year term. The 40 year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of the facility for accounting purposes. If you have any questions or comments regarding the Resolution, the enclosed documents or this letter, please contact me. Very truly yours, Steven A. Sondrall JENSEN SWANSON & SONDRALL, P.A. Enclosures cc: Shari French Dan Donahue Valerie Leone CNHI1231-01.Kirk LtLwpd EDA RESOLUTION NO. 99- 11 RESOLUTION APPROVING THE COOPER GYM EXPANSION DEVELOPMENT AGREEMENT AND FACILITY USE AGREEMENT BE IT RESOLVED by the Board of Commissioners of the Economic Development Authority in and for the City of New Hope as follows: WHEREAS, the Economic Development Authority in and for the City of New Hope (hereafter "EDA ") and the City of New Hope (hereafter "City") both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the Master Modification to Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994, and WHEREAS, the purpose of the 1999 amendment was to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF districts, and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000 to the Independent School District No. 281 (hereafter "ISD 281") for construction by ISD 281 of a gym expansion at Cooper High School, and WHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 will agree to enter into a Cooper Gym Expansion Development Agreement (attached hereto as Exhibit A) and a Facility Use Agreement (attached hereto as Exhibit B), and WHEREAS, the Cooper Gym Expansion Development Agreement sets forth the terms and conditions regarding the manner in which the $3.25 Million TIF fund will be used to construct the gym expansion project and the Facility Use Agreement sets forth the manner in which the City will be permitted to use the gym expansion during certain periods when it is not in use for school purposes, and WHEREAS, the respective bodies of the City, EDA and ISD 281 have reviewed Exhibits A and B attached to this Resolution and have determined that the attached exhibits accurately set forth the understanding and agreements between the respective parties. NOW, THEREFORE, BE IT RESOLVED: -1- 1. The Board of Commissioners of the Economic Development Authority in and for the City of New Hope hereby approves the Cooper Gym Expansion Development Agreement and the Facility Use Agreement attached hereto as Exhibits A and B. 2. That the President and Executive Director are hereby authorized and directed to sign the documents and that the Executive Director is hereby authorized and directed to take all necessary steps to implement the terms and conditions of the Cooper Gym Expansion Development Agreement and the Facility Use Agreement. Dated the 25th day of Oc taber 1999 , - ~ W. Peter Enck, President Attest: M~ Damel J. Do ue, Executive Director P:\Auom:y\Cnh R.esolutions\EDA R::so. Coo~r G:ym Appro\'al.\4-pd -2- This redlined draft, generated by CompareRite ~ The Instant Redliner, shows the differences between ~ original document : F:\DOCW,INTS\JDCARPEN'\AG1>IT_RE\9#5203!.WPD and revised document: F:\DOCW,INTS\JDCARPEl'<'\AG1>IT_RE\9#5204!.WPD CompareRite found 21 change(s) in the text CompareRite found 3 change(s) in the notes Deletions appear as struck~through text Additions appear as bold+dbl underlined text COOPER GYM EXPANSION DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered into on , 1999, by and between INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter referred to as "ISD 281 "), with its principal place of business located at Education Service Center, 4148 'Winnetka Avenue N orth, New Hope, MN 55427-1288, the CITY OF NE\V HOPE, a Minnesota Municipal Corporation (hereinafter referred to as "City") and the ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope, a Minnesota municipal corporation (hereinafter referred to as "EDA") with their principal place of business located at 4401 Xylon Avenue North, Ne\v Hope, MN 55428. RECIT ALS \VHEREAS, the EDA and the City both adopted resolutions at their respective June 28,1999 meetings approving a 1999 amendment to the Master Modification To Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994; and WHEREAS, the purpose of the 1999 amendment is to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF Districts; and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000.00 to ISD 281 for construction by ISD 281 of a gym expansion and tennis court addition at Cooper High School in accoldancc v\ith . tOl!ether with certain related site improvement and other work (collectivelv. the "Project"). all as more fullv described and set forth in the plans and specifications attached hereto as Exhibit A (together with any and all exhibits, amendments, modifications and change orders thereto, collectively referred to herein as the "Plans"); and \VHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 agrees to enter into a Facility Use Agreement with the City, in the form attached as Exhibit B (the "Facility Use Agreement") permitting the City to have primary use of the gym expansion during certain periods when the gym expansion is not in use for school purposes as set forth in the Facility Use Agreement; and P:\..-\ttom;::.'.SAS'Documents\Cooper Gym Expansion De...:lopment Ag~ment1 Octobcr:!.I.1999 WHEREAS, in further consideration for the City's and EDA's financial contribution, ISD 281 agrees to use the funds and construct the gym addition/expansion in accordance with the terms and conditions of this Cooper Gym Expansion Development Agreement. ARTICLE I Definitions Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the terms defined): (a) "Advance" - In each instance, an advance made or to be made by the City and/or EDA to ISD 281 pursuant to Article II hereof. (b) "Architect" - Wold Architects and Engineers, which \vill administer the Construction Contract Documents. ( c) "Completion Date" - June 1,2001 (unless ISD 281 shall extend such date in wTiting, then the Completion Date shall be such later date), being the date of required completion of the Project. (d) "Construction Contract" - The construction contract to be entered into between ISD 281 and the General Contractor regarding the construction of the Proj ect. (e) "Construction Contract Documents" - The document or documents, including without limitation the Construction Contract and the Plans, which, together with any and all exhibits, amendments, modifications and change orders thereto, collectively form the contract or contracts between ISD 281 and the General Contractor concerning construction and/or rehabilitation of the Project. (t) "Contribution Amount" - This term shall have the meanmg ascribed to it 111 Section 2.01 below. (g) "Draw Requisition" - The draw requisition, in the form attached hereto as Exhibit C, which is to be submitted to the City when an Advance is requested, and which is referred to in Section 2.02 hereof. (h) "Elllrineer" - KARGES-FAULCONBRIDGE, INC., a Minnesota corporation. ill "Event of Default (CitvIEDA )" - One of the events of default specified in Section 6.01(b) hereof. P:\AHornc:yiSAS\Do..-umems'.Cooper G:<m E....:pansion DC\'elopment Agre:em:::nL2 October 21. t 999 2 wID "Event of Default (lSD 281 )" - One of the events of default specified in Section 6.01(a) hereof. 67{kl "Facility Use AlZreement" - This term shall have the meaning ascribed to it in the Recitals above. tkJill "General Contractor" - The person or entity selected by ISD 281 to serve as the general contractor for the Project. ffl(m) "Inspecting: Official" - The City Building Official or City Engineer, Bonestroo, Rosene, Anderlik & Associates. fmJilll "Plans" - This term shall have the meaning ascribed to it in the Recitals above. Cn) 'TlOjeet" - The expansion of the Cooper nigh School Gym and suIlounding athletic fields as dCSCIibcd in the rlans.{Ql "Project" - This term shall have the meanin2: ascribed to it in the Recitals above. toJUil "Real Estate" - The land upon which the Project is located, described on Exhibit D attached hereto, commonly known as Cooper High School located in the City of New Hope. WiRl "Subcontractor" - Any person, other than the General Contractor, who shall be engaged to work on, or to furnish materials and supplies for, the Project. ARTICLE II Commitment to Make Contribution Section 2.01 City Contribution/Cost SharinlZ. The City and EDA agree, subject to the conditions hereinafter set forth, to contribute to ISD 281 in an aggregate principal amount not to exceed Three Million Two Hundred Fifty Thousand ($3,250,000.00) (the "Contribution Amount") for construction of the Project. ISD 281 shall not be obligated to repay the City or EDA any portion of this contribution if the Project is completed substantially in accordance with the Plans and the Facility Use Agreement is entered into by the parties. subject onlv to the obli2:ation ofISD 281 to pav the Termination Fee in the event of anv termination of the Facilitv Use A2:reement in accordance with Section 5.02(b) thereof. The total construction cost for the Project is estimated at $ . The parties \vill share the Project costs as set forth in the Project Cost Sharing Schedule attached hereto as Exhibit E. Not withstanding this agreement to share construction costs, in no event will the City be required to contribute more than the Contribution Amount to the cost for the Project. ISD 281 also acknowledges and agrees that the City's costs for those items described in Section 2.01(a) below will be paid from and included as part of the Contribution Amount. ISD 281 further acknowledges and agrees that the costs of ISD 281 for P:\Attomey\SAS\Documents\Cooper G~'m E.'l:p.1nsion Ixye!e-pment Agreementl Ck1ob:r 21. 1999 .., .J purchase of equipment described in Section 2.0 1 (b) below shall not be paid from the Contribution Amount. The net effect of this cost sharing provision is that the entire Contribution Amount will not be available to ISD 281 solely for construction costs, but will additionally include those costs described in Section 2.01(a) below. (a) City's Costs. ISD 281 acknowledges and agrees the City intends to sell bonds to finance the Contribution Amount. ISD 281 further acknowledges and agrees the City intends to make equipment purchases for (i) the concession room to be constructed as part of the Project, and (ii) a music/sound system to be installed as part of the Project. As herein agreed, these costs will be paid from the Contribution Amount. The City's costs to be funded from the Contribution Amount are estimated as follows: (i) general engineering and legal costs - $25,000.00 (ii) bond issuance costs - $75,000.00 (including consultant and bond attorney fees) (iii) all concession room equipment (coolers, freezers, cookers, pop machine, etc.) -$10,000.00 (iv) music equipment/sound system - $5,000.00 The parties agree the referenced costs are estimated and that the actual costs incurred by the City will be controlling to determine the remaining Contribution Amount available to ISD 281 for construction costs. (b) ISD 281 Excluded Costs. ISD 281 further acknowledges and agrees that its costs for the following items \vill not be funded from the Contribution Amount: (i) V olleyball standards and nets (ii) All tennis nets, wind screens, poles, flags and bleachers for tennis courts (iii) All equipment needed for the ball fields including but not limited to bleachers and scoreboards Section 2.02 Draw Requisitions. Whenever ISD 281 requires an advance hereunder, which shall be no more often than monthly, ISD 281 shall submit to the City a Draw Requisition, duly completed and executed on behalf of the ISD 281, setting forth the information requested therein. Each Draw Requisition shall be certified as true and accurate by the Architect relative to the percentage of work completed on which payment is requested. Each DraYv Requisition with respect to construction items shall be limited to amounts equal to (i) the amount of work actually completed, plus (ii) the value of materials and equipment not incorporated in the Project, but delivered and suitably stored on or off the Project site in a manner reasonably acceptable to City, less (iii) any P:\Attomey\SASDo.."UmenlS\Coopcr Gym Expansion [)e-,-elopmi:nt Agreement! CXtober21.199'1} 4 retainage required under the Construction Contract (in an amount not less than five percent (5%) of the contract amount, or portion thereof (except as to Draw Requisitions to fund the retainage in accordance with the Construction Contract)), and (iv) less prior Advances, to the extent such prior Advances consisted of prepayments of any of the foregoing. At the time of submission of each Draw Requisition, ISD 281 shall submit to the City the following: (a) A waiver of mechanic's lien and/or materialman's lien, executed by the General Contractor in the amount of the lienable costs of the Project payable from the requested advance, together with a waiver of mechanic's lien and/or materialman's lien, executed by each Subcontractor, to which any portion of the immediately preceding Advance ("Prior Advance"), if any, was paid, covering liens for all work done and materials supplied for which disbursement was made from the Prior Advance, in the form reasonably required by the City. (b) Such other supporting evidence as may be reasonably requested by the City to substantiate all payments which are to be made out of the relevant Draw Requisition and/or to substantiate all payments then made with respect to the Project. (c) Satisfactory evidence that all work then requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such jurisdiction, and that all then required certificates of occupancy and other approvals by municipal or other governmental authorities having jurisdiction have been issued. If on the date an Advance is desired, ISD 281 has performed all of its agreements and complied with all requirements therefore to be performed or complied with hereunder, and the Inspecting Official approves the relevant Draw Requisition, which approval shall not be unreasonably withheld, the City shall disburse such funds directly to ISD 281 on such date. If the Inspecting Official does not so approve the Draw Requisition, the Draw Requisition shall nevertheless be deemed approved in the event the City fails to notify ISD 281 in wTiting of the reason for such disapproval within five (5) business days of either the City's receipt of the Draw Requisition. Section 2.03 City Inspections. City shall have the right but not the obligation, and solely for its own protection, to make such inspections of the improvements as it deems advisable. ISD 281 acknowledges that it does not and shall not reply upon any inspections which City may make pursuant hereto. City and its agents, inspectors, and employees may enter upon the Real Estate at any reasonable time to inspect the progress of construction. City is not responsible for seeing that the improvements are constructed in accordance with the Plans, that the improvements contemplated under the Construction Contract Documents will be completed, that sufficient funds \vill be available for completion, or that the design, engineering details, or architectural features are adequate or appropriate. City shall also not be required to provide architectural supervision of construction or any services related to construction quality control or judgment. All inspections by, or on behalf of, P:\AttomeyiSASDocumenls',Cooper Gym E.'\:p:ansion Oc\'elopme-m Agrc::::ment1 Cktober ! I. 1999 5 the City in accordance with this Section 2.03 shall be at the City's sole cost and expense, payment for which shall be in addition to, and not as part of, the amount of the Contribution Amount. Section 2.04 Advances Without Receipt of Draw Requisition. Notwithstanding anything herein to the contrary, the City shall have the irrevocable right at any time and from time to time, to apply funds which it agrees to advance hereunder to pay any and all of the expenses referred to in Section 7.04 hereof, all without receipt of a Draw Requisition for funds from ISD 281. ARTICLE III Conditions of Funding Section 3.01 Condition Precedent to Anv Advance. The obligation of the City to approve Advances hereunder shall be subject to the condition precedent that it shall have received the following on or before the date of the initial draw request: (a) The Plans. (b) A copy of the fully executed Construction Contract Documents, with such contracts being reasonably acceptable to the City. (c) A sworn construction statement duly executed on behalf of ISD 281, in form and substance reasonably satisfactory to the City, showing all incurred and anticipated costs and expenses for construction of the Project. (d) obtained. Evidence reasonably satisfactory to the City that all then required permits have been ( e) Copies of, or binders for the delivery of, or certificates evidencing, the policy of fire and extended coverage and comprehensive general liability insurance required under Section 5.01 ( c) hereof, with all such insurance in full force and effect. (f) The Facility Use Agreement duly executed by ISD 281. (g) Any and all such other documents and agreements which City deems reasonably necessary to establish that there are sufficient additional funds, after giving effect to the City's Advance and in addition to the remainder of the Contribution Amount, to pay for the unfunded portion of the work remaining to be performed under the Construction Contract Documents. Section 3.02 Further Conditions Precedent to Anv Advance. The obligation ofthe City to make any Advance hereunder shall also be subject to the following conditions precedent: P:\.-\uomC)"~SAS\DocumenlS\Cooper Gym E.xpansion Development Agreemenl1 October 21. 1999 6 (a) No Event of Default (ISD 281) hereunder, or event which would constitute such an Event of Default (ISD 281) but for the requirement that notice be given or that a period of grace or time elapse, shall have occurred and be continuing. ARTICLE IV Representations and Warranties Section 4.0 1 Representations and Warranties ofISD 281. ISD 281 represents and warrants as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which ISD 281 is a party, are within the powers of ISD 281 and do not violate any provision of law to which ISD 281 is subject. (b) This Agreement, the Facility Use Agreement and any and all other docUll1ents referred to herein to which ISD 281 is a party, are the legal, valid and binding obligations of ISD 281 enforceable against ISD 281 in accordance with their respective terms. (c) ISD 281 has title to the Real Estate. (d) The Project will be constructed substantially in accordance with the Construction Contract Documents, will be constructed entirely on the Real Estate, and will not encroach upon or overhang any easement right-of-way of land not constituting part of the Real Estate. (e) The Project and the contemplated use thereof, both during construction and at the time of completion, will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record. (f) ISD 281 agrees that it will furnish from time to time such satisfactory evidence regarding the representations and warranties described herein as may be required by the City. Section 4.02 Representations and Warranties of the City and EDA. The City and EDA do each represent and warrant as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are within the po\vers of the City and EDA and do not violate any provision of law to which either or both the City and EDA are subject. (b) This Agreement, the Facility Use Agreement and any and all other docUll1ents referred to herein to which either or both the City and EDA are a party, are the legal, valid and binding obligations of the City and EDA, as applicable, enforceable against the City and EDA, as applicable, in accordance with their respective terms. P:t-\ttom~y\SAS\Doctlments\Cooper Gym E....-pa.nsion Development Agreementl October 21. 1999 7 ARTICLE V Additional Covenants Section 5.01 Covenants ofISD 281. ISD 281 agrees that: (a) ISD 281 will cause construction of the Project to commence, and thereafter will cause the Contractor or Contractors to diligently proceed with construction of the Project according to the Construction Contract Documents, so that the Project can be completed by the Completion Date. ISD 281 further agrees to provide all funds required over and above the Contribution Amount to the extent such additional funds should be necessary to complete the construction of the Project. (b) ISD 281 will comply with the Uniform Municipal Contracting Law, as enacted in the State of Minnesota, in letting contracts and expending public funds on this project. Also ISD 281 will require the General Contractor to comply with all rules, regulations, ordinances and laws bearing on its conduct of work on the Project. (c) ISD 281 will provide and maintain at all times during the process of building the Project, and, from time to time at the request of the City, furnish the City with proof of payment of premiums on, the following insurance: (i) fire and extended coverage, in an amount equal to the lesser of the aggregate amount of the City's Advances or the full insurable value of the Project, with the City named as loss payee, and to include an overlap endorsement or rider covering the risk of any rehabilitation work; (ii) comprehensive general liability insurance, including the City as a named insured, with limits against bodily injury and property damage in an amount greater than or equal to the limits ISD 281's statutory immtmity under Minnesota law; The policies of insurance required pursuant to Sections 5.01 (c) (i) and (ii) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with financially sound and reputable insurers licensed to transact business in the State of Minnesota. The policy of insurance delivered pursuant to Section 5.01 (c)(i) hereinabove shall contain an agreement of the insurer to give not less than ten (10) days advance written notice to the City in the event of cancellation of such policy or change affecting the coverage thereunder. (d) ISD 281 will cause the General Contractor to maintain at all times during the process of building the Project, and, from time to time at the request of the City, cause the General Contractor to furnish the City with proof of payment of premiums on, the following insurance: (i) comprehensive general liability insurance, including the City and ISD 281 as a named insured, with limits (i) against bodily injury of not less than $1,000,000, and (ii) against property damage of not less than $250,000 (to P:\AttOfne)~SAS;DocumenlS\Cooper G~.-rn E:'\:pansion Development Agr::emen12 October 21. 1999 8 accomplish the above-required limits, an umbrella excess liability policy may be used); and (ii) workmen's compensation insurance, with statutory coverage. The policy of insurance required pursuant to Section 5.01 (d)(i) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with a financially sound and reputable insurer licensed to transact business in the State of Minnesota. Acceptance by the City of an insurance policy delivered pursuant to Section 5.01 (d)(i) hereinabove shall not bar ISD 281 from requiring additional insurance which it reasonably deems necessary. ( e) ISD 281 will permit the City, acting by and through its officers, employees and agents, to examine all books, records, contracts, plans, drawings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. (f) ISD 281 will furnish to the City, as soon as possible and in any event within ten (10) days after ISD 281 has obtained actual knowledge thereof, wTitten notice of the occurrence of each Event of Default (ISD 281), or each event which with the giving of notice or lapse of time or both would constitute an Event of Default (ISD 281), which is continuing on the date of such statement, the statement of ISD 281 setting forth details of such Event of Default (ISD 281) or event and the action which ISD 281 proposes to take with respect thereto. (g) ISD 281 agrees that, without the prior wTitten consent of the City, it will not agree or consent to any material changes in the Construction Contract Documents, or to any change orders thereto, individually exceeding $25,000.00 without the consent of City, which consent will not be unreasonably withheld. Any change orders not exceeding $25,000.00, approved without the prior consent of the City will be presented to the City for review as soon as practicable after its approval by ISD 281; provided, however, the City shall have no right to object to the form or content thereof. Section 5.02 Covenants of the Citv and EDA The City and EDA agree that: (a) The City and EDA will furnish to ISD 281, as soon as possible and in any event within ten (10) days after either or both the City and EDA have obtained actual knowledge thereof, written notice of the occurrence of each Event of Default (CityIEDA), or each event which with the giving of notice or lapse of time or both would constitute an Event of Default (CityIEDA), which is continuing on the date of such statement, the statement of the City and EDA setting forth details of such Event of Default (CityIEDA) or event and the action which the City and EDA propose to take with respect thereto. P:'AtIOffiC)'\SAS'DocumenlS\Cocper Gym E.'(pansion Dcydopmenl Agreement1 October 2 I. 1 999 9 ARTICLE VI Events of Default and Rights and Remedies Section 6.01 Events of Default. 281): (a) ISD 281 Events of Default. The following shall constitute Events of Default (ISD (i) ISD 281 shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or performed by ISD 281 hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of wTitten notice of default to ISD 281. (ii) Any representation or warranty made by ISD 281 herein, or in any financial statement, certificate, report or Draw Requisition furnished pursuant to this Agreement, or in order to induce the City to approve any Advance hereunder, shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty was made. (iii) The Project is materially damaged or destroyed by fire or other casualty and the loss, in the reasonable judgment of the City, is not adequately covered by insurance actually collected or in the process of collection. (iv) The construction ofthe Project is abandoned, or shall be unreasonably delayed beyond the Completion Date (subject to such extensions as may be permitted in accordance with the Construction Contract Documents), or shall be discontinued for a period of twenty (20) consecutive calendar days, in each instance for reasons other than acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment or labor, governmental restrictions or any similar cause over which ISD 281 is unable to exercise control. (v) The Project is not substantially completed in accordance \vith the Plans or Construction Contract Documents. (b) CitvlEDA Events of Default. The following shall constitute Events of Default (CityIEDA): (i) Either or both the City and the EDA shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or performed by either or both the City and the EDA hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery ofwTitten notice of default to the City and the EDA. (ii) Any representation or warranty made by the City or EDA herein, or in any financial statement, certificate, or report furnished pursuant to this Agreement shall prove to have P:\Attorney\SAS\Documenls\Coo-per G,m Expansion Oe\-elopment Agreement2 October 11. 1999 10 been untrue in any material respect or materially misleading as of the time such representation or warranty was made Section 6.02 Rig:hts and Remedies. (a) Rig:hts and Remedies Upon Event of Default (lSD 281) . Upon the occurrence of an Event of Default (ISD 281) and at any time thereafter until such Event of Default (ISD 281) is cured to the reasonable satisfaction of the City, the City may, at its option, exercise any and all of the following rights and remedies, along with any other rights and remedies available to it: (i) The City may, by notice in \vTiting to ISD 281, refrain from approving Advances hereunder (but City may make Advances after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder), or terminate this Agreement; and (ii) The City shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. (b) Rig:hts and Remedies Upon Event of Default (CitvIEDA) . Upon the occurrence of an Event of Default (CityIEDA) and at any time thereafter until such Event of Default (CityIEDA) is cured to the reasonable satisfaction of ISD 281, ISD 281 may, at its option, exercise any and all of the rights and remedies available to ISD 281 under applicable law, including without limitation the following: (i) ISD 281 shall be entitled to terminate either or both this Agreement and the Facility Use Agreement; and (ii) ISD 281 shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. ARTICLE VII Miscellaneous Section 7.01 Inspections. ISD 281. Architect and the AIchitcct Emdneer, shall be responsible for making inspections of the Project during the course of construction, and shall determine to their own satisfaction that the work done or materials supplied by the General Contractor and Subcontractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the applicable contracts with such General Contractor and Subcontractors. If any work done or materials supplied by the General Contractor or a Subcontractor are not reasonably satisfactory to ISD 281 andfor.l. the Architect and/or the En~dneer, or if the General Contractor or a Subcontractor does not materially comply with the Construction Contract Documents in any material respect, ISD 281 will, upon discovery thereof, promptly notify the City in wTiting of such fact. It is expressly understood and agreed that the City and its Inspecting Official may, at the City's sole cost and expense (and without reduction of the amount of the P:\AllomC)~S.-\S'Documenls\Cooper G>'m E.':pansion De-.etopment Agreement1 October ~ I. I 999 11 Contribution Amount), conduct such inspections ofthe Project as either may deem necessary for the protection of the City's interest, and that any inspections which may be made of the Project by the City or the Inspecting Official are made, and all certificates issued by the Inspecting Official will be issued, solely for the benefit and protection of the City, and that ISD 281 will not rely thereon. Section 7.02 Indemnification. (a) Indemnification bv ISD 281. ISD 281 shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnify and hold harmless the City, its agents, servants and employees from all claims, demands andjudgments made or recovered against the City, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of the City or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with the construction of the Project, whether or not due to any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct ofISD 281, the General Contractor or any Subcontractor, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of the City, its employees, servants or agents. The obligation ofISD 281 under this Section 7.02(a) shall survive completion of the Project. (b) Indemnification bv CitvlEDA. The City and EDA shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indenmify and hold harmless ISD 281, its agents, servants and employees from all claims, demands andjudgments made or recovered against ISD 281, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property ofISD 281 or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection \vith any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct of the City or EDA, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of ISD 281, its employees, servants or agents. The obligation of the City and EDA under this Section 7.02(b) shall survive completion of the Project. (c) Limitations on Indemnitv. Notwithstanding Sections 7.02(a) and 7.02(b) of this Agreement, ISD 281, the City and EDA shall, and do hereby, release each other from all claims, demands, liabilities, judgments and expenses to the extent subject to and in excess of each party's limits of statutory immunity under Minnesota law, or to the extent otherwise covered, or required under this Agreement to be covered, by insurance. Section 7.03 Title to Proiect. Notwithstanding anything to the contrary in this Agreement or otherwise, and except only as otherwise provided in the Facility Use Agreement, title to the Project, together with any and all rights and interests, legal, equitable or otherwise, therein, shall at all times be vested solely with, in and to ISD 281. P:'At1om~\SASDo...iJmenl.S\Cocpc:r Gym ExpJnsion DC'\dopmem Agre:::memZ Cktober 11. 199'1 12 Section 7.04 Fees. Whether or not any Advance shall be made hereunder, ISD 281 agrees to pay all fees including inspection fees, appraisal fees, survey fees, recording fees, license and permit fees and title insurance and other insurance premiums relating to the Project, all of which fees, costs and expenses shall be subject to prorata reimbursement from the Contribution Amount. Section 7.05 Addresses for Notices. All notices to be given by either party to the other hereunder shall be in writing and deemed to have been given when delivered personally or when deposited in the United States Mail, registered or certified postage prepaid, addressed as follows: To ISD 281 at: Thomas H. Walerius Independent School District 281 Education Service Center 4148 Winnetka Avenue North New Hope, MN 55427-1288 To the City and EDA at: Daniel J. Donahue, City Manager City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 or addressed to such party at such other address as such party shall hereafter furnish by notice to the other party. Section 7.06 Termination of this Ag:reement. The obligations ofISD 281 all parties under this Agreement, but not under the Facility Use Agreement or any other agreement( s) attached hereto or incorporated herein by reference, shall cease upon (i) pavment bv City of the Contribution Amount in accordance with this A2reement. and (ii) City's certification that the construction of the Project has been completed in accordance with the Plans and Construction Contract Documents. Section 7.07 Time of Essence. Time is of the essence in the performance of this Agreement. Section 7.08 Binding Effect and Assig:nment. This Agreement shall be binding upon and inure to the benefit of ISD 281 and the City and their respective successors and assigns. Section 7.09 Waivers. No waiver by the City or ISD 281 of any default hereunder shall operate as a waiver of any other default or of the same default on a future occasion. No delay on the part of the City or ISD 281 in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. P~\AUomcyI.SAS\DocumenlS\Cooper G)m E.':pansion Development Ag.re::menl1 October 21. 1999 13 Section 7.1 0 Remedies Cumulative. The rights and remedies herein specified of each of the City and ISD 281 are cumulative and not exclusive of any rights or remedies which either or both the City and ISD 281 would otherwise have. Section 7.11 Governing Law and Entire Agreement. This Agreement shall be governed by the laws of the State of Minnesota. This Agreement contains the entire agreement of the parties on the matters covered herein. No other agreement, statement or promise made by any party or by any employee, officer, or agent of any party that is not in writing and signed by all the parties to this Agreement shall be binding. Section 7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. IN \VITNESS \VHEREOF, the parties hereto have executed this Agreement, or caused it to be executed by their duly authorized officers or partners, as of the date first above wTitten. CITY OF NE\V HOPE INDEPENDENT SCHOOL DISTRICT No. 281 By Its Mayor By Its By Its City Manager By Its ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope By Its President By Its Executive Director P:\.-\.nome:r\SAS'tDOC'Uments\Coop::r G~m Expansion De\'elopmenl Agre:::menl2 October 21, 19-99 14 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this day of , 1999, by W. Peter Enck and Daniel J. Donahue, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing \vas acknowledged before me this day of , 1999 by W. Peter Enck and Daniel J. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) by The foregoing was acknowledged before me this and respectively, of Independent , on behalf of said day 1999 the and School District 281, a Minnesota Notary Public P:\Anom..")"I.SAS',DocumenLS\Cooper G~m E.'9'lnsion De\'elopment Agreement! October 21. 1999 15 EXHIBIT "A" Plans [To be provided by City, EDA and ISD 281] P:\Al!omey\SASDocuments\Cooper O)'m Expansion De\'elopmem Agreement1 October 21. 1999 EXHIBIT "B" Form of Facility Use Agreement [To be attached] P:\Ancmey\SASDocumenLS\Cooper G)m Expansion D~...e1opment Agreement2 October 21. 1999 EXHIBIT "C" Form of Draw Requisition [To be provided by City and EDA] P:\.A.ltomeyIS.-\.:)\.OocumenlS\Cocper Gym Expansion Development Agre:ment2 October 21. 1999 EXHIBIT "D" Legal Description of Real Estate [To be provided by ISD 281] P;\Auomey\sAS\Documents\Cooper G)m a':p.msion Development Agreement1 October 21. 1999 EXHIBIT "E" FOIlll of Project Cost Sharing Schedule [To be provided by City, r::DA and ISD 281] The followin!! table provides an allocation of Proiect-related costs as between the City and ISD 281: PERCENT AGE OF RESPONSIBILITY DESCRIPTION OF WORK CITyl ISD 2812 Site Improvement: . Construction. Parkin!! and Draina!!e. 100% 0% - Perimeter Walks. Plantin!!s alon!! 47th Avenue. Utilities (Sanitarv Sewer. Storm Sewer. Water and Gas). and Related Work . Accessible Route to Ballfields. and 30% 70% Related Work Buildin!! Construction: . Gvmnasium Facilitv (Inclusive of Code 100% 0% Up!!rades). and Related "Vork Tennis Court Construction: . Construction of 7 Tennis Courts. and 30% 70% Related Work IThe City's percentage of responsibility is as sho\vTI in this table subject only to the requirement that the City's aggregate percentage of responsibility for the entire Project shall in no event exceed the Contribution Amount. 2ISD 281's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage ofresponsibility as set forth in this table, which exceed the Contribution Amount. P:\AlIom=:-~SA.SDcx;uments\Coop:r Gym E.xpansion Development Agreernent1 October 2 L 1999 . Exoanded Fencinl!. Screen Plantinl!. 30% 70% - Access Paths and Drainal!e. and Related Work P:\Atlomey\'SASlDocumenlS\Cooper Gym E.'-FlJ'lSion Development Agreemen1.2 October 21. 1999 ------------------ COMPARISON OF FOOTNOTES __________________ -FOOTNOTE 1- City's percenta2:e of responsibility is as shown in this table subiect onlv to the requirement that the City's a2:2:re2:ate percenta2:e of responsibility for the entire Proiect shall in no event exceed the Contribution Amount. -FOOTNOTE 2- 281's percenta2:e of responsibility is subject to increase for anv Proiected-related costs, normallv allocable to the City in accordance with the City's percenta2:e ofresDonsibility as set forth in this table. which exceed the Contribution Amount. ------------------ COMPARISON OF FOOTERS ----______________ -FOOTER 1- ::ODMA\PCDOCS\RIDER\438230H ~ Octobert 19,1999 P:\AllomC)'\SAS\Documents',Coop=-r Gym E:'\pansion Development Agre::mentl October 21. 1999 This redlined draft, generated by CompareRite .. The Instant Redliner, shows the differences between .. original document : F:\DOCUMNTS\lDCARPEN\AGMT_RE\9#5Y03!.WPD and re;;sed document: F:\DOCUMNTS\lDCARPEl'I'\AG1>fT_RE\9#5Y04!.\VPD CompareRite found 12 change{s) in the text CompareRite found 2 change(s) in the notes Deletions appear as struck-through text Additions appear as bold+dbl underlined text FACILITY USE AGREEMENT AGREEMENT made this _ day of , 1999 by and between the CITY OF NE\V HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the laws of the State of Minnesota (hereinafter "ISD 281"). RECITALS WHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gymnasium, on real property legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); 'WHEREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 to\vards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); \VHEREAS, the parties desire to provide for joint use of the Facility; \VHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1.02 Rellcv'val Term. This Agreement shall be for a term of forty (40) years commencing on the date of substantial comoletion of the Facilitv and expiring on June 30. 2040. P:lAnomey'SAS\DocurnenLS\Coopcr gym Facilit:y Use Agreementl Oc:tctcr 21.1999 1.03 Use and Scheduling. The facility shall be used by the parties as follows: a. until 5 :30 p.m. ISD 281 will have primary use of the Facility on school days from 6:00 a.m. b. The City will have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably withheld if time is available. d. The City will supervise the Facility when it has primary use of the Facility and shall hire and pay any building attendant necessary to perform such supervision. Supervision shall not include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the €iti-s ~ when the Facility is under City use (the "Principal Activity"), to!:!ether with supervision of anv and all uses or activities associated with, or related to, such Principal Activitv, includin!:! without limitation supervision of such interior or exterior common areas and parkin!:! areas as mav be used bv emplovees or invitees of the City in connection with such Principal Activitv. However, the City will be responsible for cleaning the concession room area and equipment after each use by the City. However, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of general routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. e. The City will have reasonable access to the Facility during its primary use time. f. ISD 281 will permit the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281 's reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it will not be permitted use of these areas without the written consent of the City. h. The City and ISD 281 shall meet at least annually to review the Facility use schedule. 1.04 Alcohol and Tobacco Policy. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions of Minn. Stat. ~ 624.701; that ISD 281 's alcohol and P:\Anomcy'SAS'<Docume015\Cocpc:r gym F3cilil)' Us.: Agreement2 October 21. 1 999 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; and that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and Maintenance of Facility 2.01 Ownership. ISD 281 is the owner of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Upkeep. ISD 281 will be responsible for all maintenance, repairs, replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. However, the City acknowledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1.03(g) of this Agreement. 2.03 Operating: Cost and Utilities. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. Ho\vever, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each party will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Minn. Stat. ~ 466.04. ISD 281 \vill be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 281' s policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bv ISD 281. ISD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the ISD 281's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by ISD 281 of this Agreement, except to the extent caused by the City's gross negligence or \villful misconduct. In the event any action or proceeding shall be brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 281's P:\Attomey\SASDocuments"Coopc:r g)oln F::;cility Use Agr~menll Oc:ob:r 11. 1999 .., .J expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City of this Agreement, except to the extent caused by the ISD 281's gross negligence or willful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall 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 levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute which also involves a material breach authorizing the nonbreaching party to exercise its rijShts under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance with this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement, the party alleging the breach may, in addition to, and not in lieu of, any other remedies available to such party under Section 4.0 1 of this Agreement or otherwise under applicable law, seek to terminate this Agreement by giving the breaching party wTitten notice specifying the nature ofthe breach. If the breach is not remedied within thirty (30) days ofthe 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 wTitten 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 wTitten notice. The Superintendent for the District or his P:\Atlomey\SAS'.Documems',Cooper g)1n Facilicy Use Agrec:ment1 October 21. 1999 4 or her designee(s) and the City Manager for the City or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty (30) 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. 5.02 Termination Without Cause. This Agreement may be terminated without cause as follo\vs: a. Either party may terminate this Agreement prior to the award of contract to construct the Facility by giving wTitten notice of such termination to the other. ISD 281 shall give the City ten (10) days wTitten notice of its intent to award a contract. Any and all actual If this A2reement is terminated in accordance with this Section 5.02(a), anv and all actual out-of- pocket costs incurred by the parties shall be shared by tk pal ties in proportion to their proposed investment in the plOjeet. non-terminatin2 party shall be paid bv the terminating party. b:-b. Commencin2 as of calendar vear 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance written notice of termination (an "Early Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount~ inclusive of interest calculated at a fixed rate ofinterest equal to five percent (5%) per annum, in accordance with the Termination Fee Schedule attached hereto as Exhibit C (the "Termination Fee"), as hereinaftCl determined. for purposes the determining the alnount of the Termination fee, the Contribution Amount shall be alllorti:z:ed in forty (40) equal, annual installments over the term of this Agreement. Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all rights to specific performance, damages, or any other remedy available in equity or in law. ARTICLE VI Miscellaneous 6.01 Building: Security. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together with any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement, ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section 1.03(b) of this Agreement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility, including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance yvith such reasonable rules and regulations as ISD 281 may issue from time to time. The City hereby agrees to indemnify P:\Ancrn:y'.sASDocumems'Cooper gym Facili[)' Use Agreementl October!I.199'9 5 and defend ISD 281 from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationship of Parties. The parties hereto agree that it is their intention hereby to create only the relationships of licensor and licensee, and no provision hereof, or act of either party hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assig:nment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. 6.04 Binding: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 6.05 Severability. If any provisions of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 Governing: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. P:\Altoml:)'\SAS'>Documeuts\Cooper gym Facility Use Agreement1 October 21. 1999 6 IN WITNESS WHEREOF, the parties have subscribed their names as of the day and year first above written. INDEPENDENT SCHOOL DISTRICT NO. 281 By Its By Its CITY OF NE\V HOPE By Its Mayor By Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of , 1999, by and , respectively the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. Notary Public P:\A[tOffi:)'\S,-\S'.D<x::uments\Coopc:r g;rm Facilit)" Use Agreernem.2 October21,1999 7 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of , 1999 by and , the and of Independent School District No. 281 on behalf of said independent school district. P:\Auo~~SAS"Docume:nLS\Cooper g:.m Facility Use Agreem::nt1 October 21. 1999 Notary Public 8 P:Wlome'y\SAS\Doo.unents'.Cooper gym Facility Use Ag:reeme'nt2 October 2 1. 1999 EXHIBIT A Legal Description [To be provided by ISD 281] EXHIBIT B Site Plan P:\Anorney\SAS\Documents\Cooper gym Facility Use Agreemen12 October 21. 1999 10/21/99 J S & S ATTORNEYS ~ NEW HOPE eH 13 :]9_ FAJ. 6,l,?493}?J2J!nlJVDLJ::. 0vrlVULI:;>' fAX NO, 6125048971 I4J 002 p, 02 CBS. Gym Improvements Dist 281 Termination of Use Agreement Fee City of New HollC f'E>'~~.&r,.""7'''''''.~l1.~~~~~'~\llili;iiWiIHl<1i?~~~!:I:l~~~~,*""tu=,:",~:~~ I?ft Number 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 :Z3 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Termirllltion Fee - TW Start Ian 1,2001 Date Jut I) 2001 Jull,2002 Jul 1,2003 JuI 1, 2004 JuT 1, 2005 Jull,2006 Jull, 2007 Jull,2008 Jull, 2009 Jull,201O Jull,201I Jul 1,2012 Jul1,2013 Jul1,2014 Jull,2015 Jull,2016 Jull. 2017 Jull,2018 Jull,2019 Jul I, 2020 Jull,202l Jull,2022 Jull,2023 Jul ], 2024 Jull, 2025 Jul1,2026 Jull,. 2027 Jul 1, 2028 Jul I, 2029 Jull, 2030 Jull,203] Jull,2032 Jul J, 2033 Jul1,2034 Jull, 2035 Jull,2036 Ju] 1, 2037 Jull,2038 Jull,2039 Jul L 2040 Interest .Rate 5.00% Nonnal Pnym<lnt $189,404 $189,404 $189,404 $1&9,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189..404 $189,404 $189A04 $189,404 $1.89,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 S; 189,.404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $189,404 $J 89,404 $189,404 $189,404 Tel"m 40 Interest; $162,500 $161,155 $159,742 $158,259 $156,702 $155,067 $153,350 $1:51,547 $149,655 $147,667 $145,580 $143,389 $141,088 $138,672 $136,136 $133,472 $130,676 $127,740 $124,656 $121,419 $118.020 $114,450 $110,703 $106,768 $102,636 $98,297 $93,742 $88,959 $83,937 $78,663 $73,126 $67,313 $61,208 $54,798 $48,068 $41,001 $33,531 $25,790 $17,609 $9,019 Page 1 Annual Payment $189,404 Applied to PrincipIi! $26,904 $28,249 $29,662 $31,145 .$32,702 $34,337 $36,054 $37,857 $39,749 $41,737 $43,824 $46,015 $48,316 $50,732 $53,268 $55,932 $58,128 $61,665 $64,748 $67,985 $71,384 $74,954 $'78,701 $82,636 $86,768 $91,107 $95,662 $100,445 $105,467 $110,741 $116,278 $122,092 $l28,196 $134,606 $14J,336 $148,403 $155,823 $163,614 $171,795 $180,385 O~ig:inal Amount $3,250,000 II ~~ &k.:l ~ . w.~'1i.iE :'ltI: ~J --. if! ~.5f: I !~ ~.II:;'.' ~!i ~!l~ 11 ~. ~ B ~:wi ~!lJ ~li~~ t%~ ~-llj/? iE';~~ Penalty for: Termination $3,223,096 $3,194,847 S3,165,185 $3,134,040 $3,101,338 $3,067,001 $3,030,947 :1;2,993,091 32,953,341 $2,911,604 $2,867,780 S2~S21,765 $2,773,449 $2,722,718 5>2,669,450 $2,613,518 $2,554,790 $2,493,126 $2,428,378 $2,360,393 $2,289,008 $2,214,055 $2,1:35,354 $2,052,717 $1,965,949 $1..874,842 $1,779,18') $1,678,736 $1,573,268 $1,462,528 5>1,346,250 $1,224,159 $],095,962 $961,357 $820,020 $671,617 $5J5,794 $352,180 $180,385 $0 10/19/99 OCT-21-99 THU 02:24 PM ."..7." "'. ..... .....'..... ";. ~ ."" . . ,t.:.......'.,:.. .. . :......~...' : ./~ :/'" . . :.,/~ ROBBINSDALE SCHOOLS FAX NO. 6125048971 P. 02 CHS Gym Improvements Dist 281 City of New Hope &m Construction Budget Amount Cit)' r~rcent Aec= to Ballfields I $15,000 30% Tenms Courts $300,000 30% Balance of Site Work $197,121 100% General Conditio(ls ~ $46,879 . 70% General ~ 1fIi $1,810,000 100% Meehanicall $450,000 100% Electrical $215,000 100% . " i I ~ .~ Subtotal ,,: Fu~ding Allocation i AME fees Commissioning : Geotechnical Pian Review Bid Advertisement City Legal & Gen Engineering . Structural Special Inspections Construction Testing Subtotal Furnitu.re and Equipn1ent . Furniture and Signage I Sound System & Concessions Equipmentl Equipment~ Subtotal Contingency TOTAL Finance Costs GRAND TOTAL Construction Budget - TW $199,730 $7,000 $3,000 $0 $5,000 $2.5,000 $6,000 $7,000 $252,730 ~ I: $5,000 $15,000 , $3,000 $23,000 $3,41$,000 $75,000 $3,490,000 Page 1 100% 100% 100% 100% 100% 100% 100% 100% City Amount District p.ercent Distrj~t '. ""1 A",ount I $/0'5001 $2~O,OOO $0 $195001 $O~ I~ $01 $0 . $240,000 $4,500 70% $90,000 70% $197,121 0% $27,379 .. 30% $1,8 I 0,000 ~ 0% $450,000 0% $215,000 0% $2,794,000 $199,730 0% $7,000 0% $3,000 0% $0 0% $5,000 '0% $25,000 0% $6,000 0% $7,000 0% $252,7 ~,.t_MiM~~.;.:.c $0 $0 $0 $0. 100% $5,000 0% $0 100% 0% $0 100% 0% $0 $ !'h.N?c;ii;"'9'~' "" , 100% 0% S $3,175,000 $240,000 $75,000 $3,250,000 $240,000 10/19/99 o DI,TRICT 281 Q 8 f- z: W '" z: W W '" z: November 10, 1999 I ROD D I ~)DI1 LE. area schools City of New Hope Attn: Valerie Leone 4401 Xylon Avenue NOlth New Hope, MN 55428 Dear Ms. Leone: Enclosed are two signed originals of the Facility Use Agreement and the Development Agreement for the Cooper Gym Expansion. Please contact me at 504-8037 if you have any questions. Thank you. Sincerely, ~ iI. ;f~ Thomas H. Walerius Senior Associate for Business Services Education Service Center. 4148 Winnetka Ave. f\l.. New Hope MN 55427-1288 . (612) 504-8000 . Fax: (612) 504-8973 FACILITY USE AGREEMENT AGREEMENT made this~ day of (Oa.t , 1999 by and between the CITY OF NEW HOPE a Minnesota municipal corporation (hereinafter the "City"), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the lavls of the State of Minnesota (hereinafter "ISD 281"). RECIT ALS 'WHEREAS, ISD 281 is constructing an addition to the existing Cooper High School gymnasium, on real property legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); 'WHEREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); 'WHEREAS, the parties desire to provide for joint use of the Facility; WHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and ISD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1.02 Term. This Agreement shall be for a ternl offorty (40) years commencing on the date of substantial completion of the Facility and expiring on June 30, 2040. 'OD~IA\PCDOCS.RIDER' ~ J~::!5'J\5 0C1ober25. J')'}',! 1.03 Use and Scheduling:. The facility shall be used by the parties as follows: a. until 5:30 p.m. ISD 281 will have primary use of the Facility on school days from 6:00 a.m. b. The City will have primary use of the Facility on school days from 5:30 p.m. until 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that school is not in session. c. Each party may schedule gym time during the other party's primary use, with the primary party's consent which may not be unreasonably withheld if time is available. d. The City will supervise the Facility when it has primary use of the Facility and shall hire and pay any building attendant necessary to perfornl such supervision. Supervision shall not include maintenance or cleaning \vhich shall be the responsibility of the ISD 281 per Section 2.02 of this Agreement. City supervision shall only mean supervision of the activity that is being conducted by, on behalf of, or is the responsibility of the City when the Facility is under City use (the "Principal Activity"), together with supervision of any and all uses or activities associated with, or related to, such Principal Activity, including without limitation supervision of such interior or exterior common areas and parking areas as may be used by employees or invitees of the City in connection with such Principal Activity. However, the City will be responsible for cleaning the concession room area and equipment after each use by the City. However, ISD 281 will clean the floors, walls and ceiling ofthe concession room area as part of general routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the concession room area on condition it is properly bagged and placed in a designated area for disposal as determined by ISD 281. time. e. The City will have reasonable access to the Facility during its primary use f. ISD 281 will permit the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281' s reasonable rules and regulations. g. The City" will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it \\'ill not be pernlitted use of these areas without the \vritten consent of the City. schedule. h. The City and ISD 281 shall meet at least annually to review the Facility use 1.04 Alcohol and Tobacco Polin'. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions of Minn. Stat. S 624.701; that ISD 281 's alcohol and OD!\IA,PCDOCS\RIDER \.l.]:i25'J"j OClcher 15. I')')') 2 tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Facility; that the area should be appropriately posted; and that the City shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and Maintenance of Facility 2.01 Ownership. ISD 281 is the ovmer of the Facility, subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Upkeep. ISD 281 will be responsible for all maintenance, repairs, replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. However, the City acknowledges and agrees it will be responsible for all maintenance, repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1.03(g) of this Agreement. 2.03 Operating: Cost and Utilities. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of the Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixtures, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. However, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each party will obtain and maintain during the ternl of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Minn. Stat. ~ 466.04. ISD 281 will be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 28l's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification bv ISD 281. ISD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the ISD 281's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by ISD 281 of this Agreement except to the extent caused by the City's gross negligence or willful misconduct. In the event any action or proceeding shall be OD~IA \PCDQCS'.RIDER'J 1:'i::! S')~5 0C1obcr25.I'l<}'} .., .J brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 281's expense by counsel reasonably satisfactory to the City. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Citv. The City hereby indemnifies and holds ISD 281 harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City ofthis Agreement, except to the extent caused by the ISD 281's gross negligence or willful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the City's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall 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 administrati ve levels have been exhausted; provided, however, all such administrative levels shall be deemed to have been exhausted in the event such dispute remains unresolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute which also involves a material breach authorizing the nonbreaching party to exercise its rights under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance with this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement, the party alleging the breach may, in addition to, and not in lieu of, any other remedies available to such party under Section 4.0 1 of this Agreement or otherwise under applicable law', 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 \vritten notice setting forth the time, place and date of a meeting to discuss the breach, the time, date and place for \vhich shall in all respects be reasonable and shall specify a date not later 00\1.-\' PCDOCS".RIDER'~ ;~25'}'5 OClobc-r 25. I'Jl)'1 4 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 for the City or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty (30) days after the date of such meeting, the party alleging the breach may send a final \VTitten notice of termination to the breaching party terminating this Agreement effective upon the date of delivery of such notice. 5.02 Termination Without Cause. This Agreement may be terminated without cause as follows: a. Either party may terminate this Agreement prior to the award of contract to construct the Facility by giving written notice of such termination to the other. ISD 281 shall give the City ten (10) days written notice of its intent to award a contract. If this Agreement is terminated in accordance with this Section 5.02(a), any and all actual out-of-pocket costs incurred by the non-terminating party shall be paid by the terminating party. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance \vTitten notice of termination (an "Early Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount, inclusive of interest calculated at a fixed rate of interest equal to five percent (5%) per annum, in accordance with the Termination Fee Schedule attached hereto as Exhibit C (the "Termination Fee"). Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all rights to specific performance, damages, or any other remedy available in equity or in law. ARTICLE VI Miscellaneous 6.01 Building: Securitv. Upon completion of construction of the Facility, ISD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together with any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreement. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement. ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section 1.03(b) ofthis Agreement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility, including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance with such reasonable rules and regulations as ISD 281 may issue from time to time. The City hereby agrees to indemnify and defend ISD 281 from and against any and all claims, demands. liabilities, and expenses, OD~ tA ',reDoes'oR I DER ',~ ~x2 5'F5 Oc:obcr25. I'}')'} 5 including attorney's fees, arising from any failure by the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationship of Parties. The parties hereto agree that it is their intention hereby to create only the relationships of licensor and licensee, and no provision hereof, or act of either party hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assig:nment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. 6.04 Binding: Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 6.05 Severability. If any prOVISIOns of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 Governing: Law. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Minnesota. . :ODMA \PCDOCS\RIDER"JJXZ5')\S October 25. 11J9<) 6 IN \VITNESS WHEREOF, the parties have subscribed their names as of the day and year first above \vritten. INDEPENDENT SCHOOL DISTRICT NO. 281 By Its By Its CITY OF NE\V HOPE ~ ;. :If / ~ :v{ By Its Mayor By/~,~Jd~1'~ Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) T e foregoing instrument was ackno\yledged before me thi~ day of (j; ~t. ,1999, by , andJ1IJieLJ LJ(})lahU€, respectively the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. k. ~ ~ / . c('7~ Notary Public VALERIE J. LEONE NOTARY PUBUC . MINNESOTA My Commission Expires January 31, 2000 : :OD~IA \PCDOCS',R lDER',4 :;X25')\5 October 25. J'}')<) 7 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) by The foregoing instrument was acknowledged before me this _ day of and the of Independent School District No. 281 ,1999 and on behalf of said independent school district. Notary Public : :ODMA \PCDOCS\RIDER \';JR1.5lf5 OClobcr 15. I'Nl) 8 Parcell: Parcel 2: : OD~t...\"FCDOCS\RlOER\~Jl'I15')\5 Ol;tob~r 25. 19')1) EXHIBIT A Legal Description East 'is of the Northwest \;4 of the Southeast \;4, Section 7, Township 118, Range 21 according to the Government Survey thereof, excepting the South 30 feet of the East 30 feet thereof. West 'is (W 'is) of the Northeast \;4 (NE \;4) of the Southeast \;4 (SE \;4), Section 7, Township 118, Range 21, according to the Government Survey thereof, excepting therefrom: (a) The South 30 feet of the West 'is (W 'is) of the Northeast \;4 (NE \;4) of the Southeast \;4 (SE \;4), Section 7, Township 118, Range 21; and (b) That part of the Northeast \;4 (NE \;4) of the Southeast \;4 (SE \;4), Section 7, TO\\11ship 118, Range 21, lying North of 47th Avenue North and lying between a line drawTl 30 feet West of and parallel to the westerly line of Virginia Avenue North and the westerly line of Virginia Avenue North as platted in Lynncroft Addition. EXHIBIT B FLOOR PLAN N~ 1/32. ~ 1'-0. TO PARKm .:J :;....................... EXlSTl<G <<~:->>'>;.;.~~::-:o:~ w ;'.~y-'lL~; ~ ~~ ..: ~'. ~.' ..:::. :... .. ~;.;.".:.:.:.;.;.;.;.:i.:.:.;.:.:.;.;.;.;.;.:.;.:.:.:.:.;.:.:.;:,:: TO TEHlS CO\.RTS Site Plan I I I L _ .E~ 1_ _ -1 I I I I I I I I r-----..., I I I I l: < ~ .., c:: '" Q " o I I I L _ ~~ 2_ _ -1 I I I I I I I I r.-----..., I I I I i!l ~ 51 ~ 8 EXHIBIT C Termination Fee Schedule TERMINATION TERMINA TION TER1vfIN A TI ON TERMINATION DATE FEE DATE FEE June 30, 2001 $3, 223,096 June 30, 2021 52,289,008 June 30, 2002 53,194,847 June 30, 2022 $2,214,055 June 30, 2003 $3,165,185 June 30, 2023 $2,135,354 June 30, 2004 $3,134,040 June 30, 2024 $2,052,717 June 30, 2005 $3,101,338 June 30, 2025 $1,965,949 June 30, 2006 $3,067,001 June 30, 2026 $1,874,842 June 30, 2007 $3,030,947 June 30, 2027 $1,779,181 June 30, 2008 $2,993,091 June 30, 2028 $1,678,736 June 30,2009 $2,953,341 June 30, 2029 $1,573,268 June 30, 2010 $2,911,604 June 30, 2030 I $1,462,528 June 30, 2011 $2,867,780 June 30, 2031 $1,346,250 June 30, 2012 $2,821,765 June 30, 2032 $1,224,159 June 30. 2013 $2,773,449 June 30, 2033 $1,095,962 June 30, 2014 $2,722,718 June 30, 2034 $961,357 June 30, 2015 $2,669,450 June 30, 2035 $820,020 June 30, 2016 $2,613,518 June 30, 2036 $671,617 June 30, 2017 $2,554,790 June 30, 2037 $515,794 June 30, 2018 $2,493,126 June 30, 2038 $352,180 June 30, 2019 $2,428,378 June 30, 2039 $180,385 June 30, 2020 $2,360.393 June 30, 2040 $0.00 OD~I.-\PCDOCS'RIDER',..I1XZj'),S October ~5, l'l'N 4401 Xylon Avenue North New Hope, Minnesota 55428-4898 www.ci.new-hope.mn.us City Hall: 612-531-5100 Police: 612-531-5170 Public Works: 612-533-4823 TOO: 612-531-5109 City Hall Fax: 612-531-5136 Police Fax: 612-531-5174 Public Works Fax: 612-533-7650 October 28, 1999 Mr. Tom Walerius Senior Associate for Business Services Independent School District No. 281 4148 Winnetka Avenue North New Hope, MN 55427 Subject: Development Agreement and Facilities Use Agreement Dear Mr. Walerius: As you are aware, at the October 25 New Hope City Council and EDA meetings, the Council and EDA approved the Development Agreement and Facilities Use Agreement pertaining to the Cooper gyms project. Enclosed are four copies of each agreement that have been executed by the Mayor and City Manager. Please sign all eight copies, retain two copies of each agreement for the School District and return two copies of each agreement to the attention of Valerie Leone, City Clerk, at the city offices. If you have any other questions, please contact me at 612-531-5119. The City would like to thank you for your cooperation during this process and look forward to a successful construction project in 2000. incerely, \~~~ Kirk McDonald Director of Community Development Enclosure: Development Agreement and Facilities Use Agreement cc: Dan Donahue, City Manager Steve Sondrall, City Attorney Mark Hanson, City Engineer Shari French, Director of Parks & Recreation Doug Sandstad, Building Official Valerie Leone, City Clerk (Improvement Project 662) Family Styled City _ For Family living COUNCIL - I~ml l1/ HO - REQUEST FOR ACTION Originating Department Approved for Agenda Parks & Recreation August 13, 2001 Agenda Section f0mm,j/t:C Item No. By: Shari French h I.... / /'-// 6.5 By: ./ MOTION TO ACCEPT IMPROVEMENT PROJECT NO. 662 (COOPER GYMS) TO ROBBINSDALE SCHOOL DISTRICT 281 AND APPROVE FINAL PAY REQUEST IN THE AMOUNT $89,018.17 REQUESTED ACTION Staff is recommending that the Council accept Improvement Project 662 and approve final payment to R.obbinsdale School District 281 in the amount of $89,018.17. The City will issue final payment when all appropriate paperwork has been received from the District, including a utility easement, to close out this project. BACKGROUND In April of 1999, the City Council met with representatives of the School District at a City Council Work session to discuss options to add gyms to Cooper High School, after staff had met with District representatives earlier in the year to discuss community/school district needs and design options. The Council was favorable toward the proposal and directed that a public hearing be scheduled to consider modifying the redevelopment and tax increment financing plans to include the Cooper High School property in an area where tax increment financing (TIF) funds could be utilized for community center and recreational purposes. On June 28th of that year, said public hearing was conducted and the Council and EDA approved resolutions modifying the redevelopment and tax increment financing plans to allow the expenditure of up to $3.25 million on the Cooper gyms expansion project, which also included the reconstruction of tennis courts on the site with costs being prorated between the two entities. The approval of the resolutions authorized the use of TIF funds for the project, but did not commit the City to the project. In July of 1999, the plans were reviewed by the Planning Commission and the Commission recommended approval of the conditional use permit amendment request to the City Council. On August 9th of same year, the City Council accepted the recommendation from the Commission and approved the plans and the CUP amendment request. Staff and the City Attorney then coordinated with the School District on the appropriate agreements. One of the issues that the City Council wanted addressed prior to consideration of the Cooper Gyms Agreement was the Ice Arena Rental Agreement. The School District approved an agreement acceptable to the City on October 4, 1999, and the City Council approved that agreement on October 11, 1999. On October 25, 1999, the City Council approved the final two agreements for the Cooper gyms project. The agreements outlined the City/EDA's intent to provide Independent School District No. 281 with a $3,250,000 grant, primarily for the addition of new gyms at Cooper High School. In consideration for the contribution, the School District will provide the City with priority use of the gym facilities. FUNDING The final amount that will be paid to the ISO 281 including this final payment will total $3,132,959.87. The cost of this project will be at $3,156,570.79 when this final payment is made to the School District. This amount includes all costs associated with the project. This project to date then is under the $3.25 million budget by $93,429.21. ATTACHMENTS A letter from the School District dated July 20, 2001, requesting this final payment, is attached. MOTION BY t!t~~{~/)/ SECOND BY ( ~/J:vAG- TO: Ill";;? Jij::>C I I:RFA\P&R\Cooper Project\final 662 with 281.doc (5 DI\T21CT Q81 o 9 .... z: W a z: W W a !:: July 20, 2001 I ROD D I W)Dr1 LE. area schools City of New Hope Mr. Dan Donahue 4401 Xylon Avenue North New Hope, MN 55428 Dear Mr. Donahue: The attached statement represents work performed in connection with the Cooper High School gymnasium project. The amount of payment request number 14 from the City of New Hope to the Robbinsdale School District is $89,018.17 This should be the last request for a payment from the city for the Cooper Gym. The above amount includes the retainage as well as invoices that cover the period from February 2001 through July 2001. The total that the city has paid to the school district, including this request, is $3,132,959.87. The total cost was not to exceed $3,175,000. We have indeed completed this project within the budget. Once again, I want to thank you, your staff, the city council, and the mayor for your efforts in making this a successful project. I am sure that the continued cooperation between the district and the city will serve the students in this community well for many years. Please submit payment to Robbinsdale School District #281, Torn Walerius, 4148 Winnetka Avenue North, New Hope, MN 55427. Please call me at 504-8037 if you have any questions. Thank you. :d~~fi?t-~ Thomas H. Walerius Senior Associate for Business Services enc's km Education Service Center. 4148 Winnell<a Avenue North. New Hope MN 55427-1288. (763) 504-8000 . Fax (763) 504.8973 COUNCIL REQUEST FOR ACTION Originating Department Approved for Agenda Parks & Recreation 1/10/2000 Agenda Section Development & Planning Item No. 8.3 By: Shari French DISCUSSION REGARDING COOPER GYMS AND TENNIS COURTS PROJECT BIDS (PROJECT 662 REQUESTED ACTION Staff is recommending that Council accept the bids for the Cooper High School joint gyms and tennis courts project per the School District staff and Board's recommendation. Mr. Tom Walerius will be here Monday evening to answer any questions and to share the details. After reviewing bids with the City Manager, staff strongly agreed to recommend to the School District that the upgraded gymnasium flooring as well as the alternate bid for a batting cage be included in the bid to be awarded. The School Board will act on the bids tonight, Monday, January 10, 2000 at 7:00 pm including the City recommended floor and batting cage. The base bids received were all quite similar. The total recommended bids themselves were quite favorable and lower than the architects expected them to be. BACKGROUND In April, the City Council met with representatives of the School District at a City Council Work session to discuss options to add gyms to Cooper High School, after staff had met with District representatives earlier in the year to discuss community/school district needs and design options. The Council was favorable toward the proposal and directed that a public hearing be scheduled to consider modifying the redevelopment and tax increment financing plans to include the Cooper High School property in an area where tax increment financing (TIF) funds could be utilized for community center and recreational purposes. On June 28th, said public hearing was conducted and the Council and EDA approved resolutions modifying the redevelopment and tax increment financing plans to allow the expenditure of up to $3.25 million on the Cooper gyms expansion project, which also includes MOTION BY RFA-DOl TO: the reconstruction of tennis courts on the site with costs being prorated between the two entities. The approval of the resolutions authorized the use of TIF funds for the project, but did not commit the City to the project. In July, the plans were reviewed by the Planning Commission and the Commission recommended approval of the conditional use permit amendment request to the City Council. On August 9th, the City Council accepted the recommendation from the Commission and approved the plans and the CUP amendment request. Staff and the City Attorney then coordinated with the School District on the appropriate agreements. One of the issues that the City Council wanted addressed prior to consideration of the Cooper Gyms Agreement was the Ice Arena Rental Agreement. The School District approved an agreement acceptable to the City on October 4th, and the City Council approved the agreement on October 11th. On October 25, 1999, the City Council approved the final two agreements for the Cooper gyms project. The agreements outlined the City/EDA's intent to provide Independent School District No. 281 with a $3,250,000 grant, primarily for the addition of new gyms at Cooper High School. In consideration for the contribution, the School District will provide the City with priority use of the gym facilities. January 4, 2000 I ROO 0 I ~5DI1 LE. area schools City of New Hope Attn: Shari French 4401 Xylon Avenue N. New Hope, MN 55427 Dear Shari: Enclosed are extra sets of bid recommendations for the Cooper High School Gymnasium and Tennis Court Addition. These will be accepted at the January 10, 2000 School Board meeting. Please contact me at 504-8037 if you have any questions. Thank you. Sincerely, ~ar;V ?/-cdu~ Thomas H. Walerius Senior Associate for Business Services enc Education Service Center. 4148 Winnetka Ave. N.. New Hope MN 55427-1288. (612) 504-8000 . Fax: (612) 504-8973 50) S i. PFTL!\ S il\ i; \ i. 1'\1. i. \ 1 :\ ~ ~ 1 (I f,'; I 11 December 30, 1999 l'.'\\ (~.::; 1.22.1. )6:i(1 School Board Members Independent School District 281 4148 Winnetka Avenue North New Hope, MN 55427-1288 .2) SOUT1l C R()\' F t\ VF~ L: I \l! Ii ';(10 ['.! (" ,<. I L (,0120 ()'! .(){)~.2()OU hlX 84 .608.2654 WWIV. IVO 1. [J..\ E. CO:.I :'1:\ I L@W01.DAE.CO:.1 City Council Members City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Re: Independent School District 281 Cooper High School Gymnasium and Tennis COUlt Addition Commission No. 99088 Dear School Board and City Council Members On December 23, 1999, thirteen (13) bids were received for the Cooper Gymnasium and Tennis Courts. Attached is a Bid Tabulation for your review as well as a Budget Analysis. We have reviewed the bids and found them to be within your budget. The following are recommendations for the base bid and the alternates: Base Bid: S2,537,710 Recommendation: Accept Base Bid Alternate No.1 - Liquidated Damages No Change This alternate addresses the Substantial Completion Date and requires the Contractor to pay a penalty of S I ,000 per calendar day, if the substantial completion date is not met. In this case, the Contractor agrees that they can meet the deadline. Recommendation: Accept Alternate No.1 A/femafes Nos. 2. 3 olld -/ u/,e.!c)/, di/laellf IFoodfloo/' sysfems. The !Jose Bid did Ilof illc/ /Ide ony lI'()()dfloo/'illg Alternate No.2 Wood Floor Type I Add: S134,583 Construction of th is floor provides a more consistent bounce throughout the lifetime of the floor system. The playing surface is thicker than typical allowing additional long term refinishing potential. Recommendation: Accept Alternate No.2 Ft!:(;;! Oppo rfU 11/1)' EmploJ'u Letter to School Board and City Council Page Two Alternate No.3 Wood Floor Type II Add: 5133,596 This system is similar to the Alternate No.2 floor system, however, the thickness of the playing surface is typical in thickness. Recommendation: Reject Alternate No.3 Alternate No.4 Wood Floor Type II Add: 5101,656 This floor system is similar to the systems installed in the Armstrong gym. The playing surface material is typical in thickness. Recommendation: Reject Alternate No.4 Alternate No.5 - Batting Cage Add: 56,159 This Aternate adds a motorized retractable batting cage into the project. Recommendation: Accept Alternate No.5 Alternates M-l and lvI-2 were included to provide competitive bidsfor the facility's Energy A1anagement System. Currently, the Seibe Company is already managing the system at Sandburg j\;fiddle School. The acceptance of the Trane System will moillfoin future competitive bids. Alternate M-l - Seibe Add: 5113,686 Recommendation: Reject AItemate No. M-1 Alternate M-2 - Trane Add: 5100,216 Recommendation: Accept Altemate No. M-2 Our further recommendation is that the Contract for Construction of the Cooper High School Gymnasium and Tennis Court Addition be {l\varded to: CM Construction 12215 Nicollet Avenue South Burnsville. ivlinnesota 55337 Letter to School Board and City Council Page Three The total contract amount is summarized as follows: Base Bid Alternate No. 1 Alternate No.2 Alternate No.5 Alternate No. M-2 TOTAL CONTRACT $ 2,537,710 No Change + 134,583 +6,159 +100.216 S 2,778,668 Please call if you have any questions. Sincerely, ARCHITECTS AND ENGINEERS Gregory R. Dehler, AlA Project Manager/Associate Attachments cc: Kirk McDonald, City of New Hope Sheri French, City of New Hope Ken Kosta, Superintendent, ISO 281 Tom \Valerius, Sr. Assoc. for Business, ISD 281 Jim Gerber, ISO 281 Barb Lehman, Cooper High School Kevin Sullivan Mike Derrig f'v'1 ike Klass (~lllitlll()~ ::\'dcc()lj lU~L~ Bidder's Name Arkay Construction 520 Mendelssohn Avenue NO Golden Valley. UN 5S-;V ?hone: (612) 5<<-3341 Fax: (612l544-336S ons c ,on 12215 Nic:ol)etAvenue S SI.Jt'f'lS';'ill, MN 55337 ?hone; (612) 895-8223 Fax: (612) es.81S3 e nc. ., Co. Rt:t 10 Coreora."\ MN 553::17 P~oe: (612) 4S3-7fl4.4 Feu:: (612) ~sa-9951 on 3550 lalxlre Road, Ste 10 ons!. '41aSTI\lanStr~t 51. POI1,.\!. MN 5117 Phone (551) 4S5-67~5 Fax:.(5S1)4S-5-47S7 un a n onst. 3023 R:tOOcl"o St NE fkr~"leapo!is. MN 55416 ;:>h::Ir.e (612) 782-22$J ons!. :;:=-::5 Gch:l;,>r. 'J..;\ey RO;l:: '::;':'\Q.~:1 V;;.\1ef _ M~; 55422 :":0:-.;;,"",:: ;,:;1::,~3.$:.:;:; "al (512!~€-312"2 Rochon Y'...s:; "....,.-.a;:;:>s Laroe ~;:; ___'.:...i :>;i:'1"'\O,,~Mf;5s.:.4: ;;~.::,..~ :'512; 559<:3,;~ ;:;a iS12i<;~';.8;C1 Remarks City of New HopelISD #281 Cooper High School Gym and Tennis Courts Addition frt1:J Wold Architects and Engineers December 30, 1999 Revised January 3, 2000 BUDGET and BID ANALYSIS Construction Bid 12/23/99 Citv of New Hope ISD #281 Total Funding Source Cooper H.S. Gym & Tennis Courts Addition $ 3,250,000 Finance Costs $ (75,000) TOTAL FUNDS AVAILABLE $ 3,175,000 $ 197,500 $ 3,372,500 Construction Costs Civil (See estimated Summary below) $ 143,000 (Est.) $ 179,500 (Est.) $ 322,500 General l $ - $ - Mechanical $ - $ - Electrical $ 2,456,168 $ - TOTAL (Bid 12/23/99-$2,778,668) $ 2,599,168 (Est.) $ 179,500 (Est.) $ 2,778,668 Funding Allocation AME Fees $ 200,31 I $ 9,219 $ 209,530 Commissioning (Estimated) $ 25,000 $ - $ 25,000 $ $ .-.. 3,000 Geotechnical (Estimated) $ 2,868 132 Plan Review Fee/Permits (Waived by the City) $ - $ - $ - Bid Advertising/Printing (Estimated) $ 4,780 $ 220 $ 5,000 City Legal and General Engineering $ 25,000 $ - $ 25,000 Structural Special Inspections (Estimated) $ 6,000 $ - $ 6,000 Construction Testing (Estimated) $ 6,692 $ 308 $ 7,000 SUBTOTAL $ 270,651 $ 9,879 $ 280,530 Furniture and Equipment Furniture and Signage $ 5,000 $ - $ 5,000 Sound System and Concessions Equipment $ 15,000 $ - $ 15,000 Equipment $ 3,000 $ - $ 3,000 SUBTOTAL $ 23,000 $ - $ 23,000 Contingency $ 282, I 8 I $ 8,121 $ 290,302 TOTAL PROJECT COST 3,175,000 197,500 3,372,500 Summarv of Estimated Site/Civil Costs City District Total Ball Field Access (30% Cityl70% ISD 281) $ 4,500 $ 10,500 $ 15,000 Tennis Courts (30% Cityl70% ISD 281) $ 58,500 $ 136,500 $ 195,000 Ball Field Reconstruction (0% CityIlOO% ISD 281) $ - $ 32,500 $ 32,500 Remaining Site Work - Landscaping. Etc. $ 80,000 $ - $ 80,000 TOTALS $ 143,000 $ 179,500 $ 322,500 Please note that the costs identified as "civil" are estimated at this time. Upon award of the contract, specific costs wiII be provided. g\990BBlreportslbudgelanalysis#2.xls Page 1 Commission No. 99088 COUNCIL REQUEST FOR ACTION if &0 ~ 4-19-99 Agenda Section Unfinished & Org. Business Originating Department Community Development Approved for Agenda ByKirk McDonald By: Item No. ll.l DISCUSSION WITH REPRESENTATIVES OF SCHOOL DISTRICT #281 REGARDING POTENTIAL CONSTRUCTION OF GYMS AT COOPER HIGH SCHOOL WITH TAX INCREMENT FINANCING FUNDS REQUESTED ACTION Staff requests that the Council meet with and offer feedback to representatives of School District #281 regarding the potential construction of gym facilities at Cooper High School utilizing tax increment funds as one of the revenue sources. Representatives from the District that may be present include: · Tom Walerius, Senior Associate for Financial Services · Barb Lehman, Cooper High School Athletic Director . Jim Gerber, Senior Associate for Buildings and Grounds It Gregory Dehler, Wold Architects and Engineers BACKGROUND In July 1998, the City Council and EDA considered a resolution to modify the TIF District to include the Cooper High School property in an area where TIF funds could be expended for purposes of financing the construction of gyms on the site. The City of Plymouth previously approved TIF funds for the construction of gym facilities at Armstrong High School. The resolution to add Cooper to the TIF District was not approved and the general direction given was for the School District to develop more complete plans and cost estimates. Over the past six months, representatives from the School District and Cooper have been meeting with city staff to determine the type of facilities that would best meet City and School District needs and still keep costs at a minimum. The School District will be presenting three options to the Council on Monday night and be requesting consideration of TIF funding to finance the project. ATTACHMENTS It Cost Estimates and Plans · 7/27 EDA Minutes and Request · TI F Districts Cash Flow Statement CL ~hYf. RFA-OOl TO: FROM: DATE: COMM. NO: - M E M 0 -R AND U M - - WOLD ARCHITECTS AND ENGINEERS Kirk McDonald, City of New Hope 305 ST_ PETER STREET ST.PAUL_MN 55102 651.227-7773 FAX 651_223.5646 Greg Dehler 71 5-H TOLLG.HE RO,\D ELGIN,IL 60123 847.608.2600 HX 847_608.2654 April 16, 1999 9999 NET: HTTI'/ /WWW.WOLDAE.COM SUBJECT: Cooper High School Gym Addition Project Description Layout: Option 1 Option 1 a Option 2 Option 3 . (2) shortened . Same as Option 1 . (2) full size . (2) full size basketball courts with storage added. basketball courts basketball courts 50'x74' with 10' with 12' from the with 12' from the from the baseline baseline to the baseline to the to the wall, 5' -0" walls, 10' from the walls, 10' from the between the side court to the side court to the sideline and the bleachers, and 10' bleachers, and 10' wall, and 6'-0" between the courts. between the courts. between the courts. .. (2) regulation .. (2) regulation . (I) full sized volleyball courts volleyball courts basketball court striped over the striped over the 50'x84' striped basketball courts, basketball courts. perpendicular to e One center drop II One center drop the shortened curtain between the curtain between the courts. courts. courts. II (2) regulation II Each basketball E> Each basketball volleyball courts court will have two court will have two striped over the crosscourt crosscourt short basketball basketball basketball courts. backboards. backboards. II (1) regulation II (2) Fixed bleachers II (2) Fixed bleachers volleyball court two rows high on two rows high on striped over the full each end. Total each end. Total size basketball seating for 200. seating for 200. court. II All backboards will E> All backboards will E> All backboards will be full size be full size be full size rectangular glass. rectangular glass. rectangular glass. II Wood gym floor. II Suspended walking e No crosscourt II Acoustic concrete track 10' wide. basketball block and acoustic II Acoustic concrete backboards. metal deck. block and acoustic E> One center drop metal deck. curtain between the courts. II Wood gym floor. II Acoustic concrete block and acoustic metal deck. Memorandum to Kirk McDonald Page Two Program Areas: Gymnasium Floor (wall to wall) Elevated Walking Track Storage Elevator and Elevator Equipment Concessions Mechanical Circulation and Structure Total Gross Addition *Roof top units Option 1 10,904 SF Option 1 a 10,904 SF Option 2 14,878 SF Option 3 14,878 SF 4,780 SF 530 SF 160 SF 215 SF 640 SF 5.917 SF 27,120 SF 530 SF 530 SF RTU's* 3.246 SF 14,150 SF 3.725 SF 15,160 SF 520 SF 3.272 SF 19,200 SF Proposed Cooper High School Project Costs Option 1 (14,150 SF) Option 2 (19,200 SF) Option 3 (27,120 SF) Site Improvements . Parking and Fire Access Road . Utilities Construction . New and Remodeled Areas and Code Upgrades Fees, Testing Contingency Total Proposed Cooper High School Project Costs Tennis Court Construction (7 courts) Site and Construction Fees and Testing Contingency Total Tennis Court Costs Attachments: e Option Drawings e Site Plan cj\9999\apr99 Option 1 a (15,160 SF) $ 75,000 $ 74,000 $ 75,000 $ 75,000 $ 84,000 $ 84,000 $ 84,000 $ 84,000 $ 1,625,000 $ 1,728,000 $ 2,130,000 $ 2,920,000 $ 163,000 $ 189,000 $ 229,000 $ 308,000 $ 179.000 $ 192.000 $ 250.000 $ 340.000 S 2,126,000 S 2,267,000 S 2,768,000 S 3,727,000 $ 290,000 $ 32,000 $ 32.000 S 354,000 [f= II II II [1,.= UJ ~ to F: \COOPERGYMADD\QPT10H5-2\811-oPT1~ I I I I I I I ' ~ I I I a\ I I I ! ; m I I I . I ! I I I a\ \V I I I I I mil. I I I I I I I I o 15 30 COOPER HIGH SCHOOL PROPOSED GYM ADDITION OPTION 1 I 60 &EOR 0 4/16/J99q 0 9,17157 0 G5.J N ffi (l\ ~ C.OOPER HIGH SC.HOOL PROPOSED GYM ADDITION OPTION 10 N Ef3 I I I o 15 30 W~LD p, \COOFER€"(MADDIGA10~S-2\8II-OPT1.D>-;:; I 60 GEOR. 0 4l1bfl999 0 8:25:25 0 CSJ UJ~LD ~---------~---------~ I I I I I I I I : (2) : I I I I I I I I I I I I ___ I I I I ~-------------------~ I I : I : I I I I I : (i) : \J./ I I I I I I I I I I I ~___________________V 5TORA6E IF= II II II [b.= il COOPER HIGH SCHOOL PROPOSED GYM ADDITION OPTION 2 N ffi I o I 15 I 30 I 60 F, \COOPERGYMADD\OPTl0N5-2\5II0PT23V,"", GEOR 0 4/lb/lQqq 0 9:10,1 0 G5J 7-- WglO F: \COOPER.GYHADD'OPT!ONS- 2\B110PT23.Di"fS STORAGE ~-------------------~ I I I I I I I I i I : ~ : I I I I I I I I I I I I -,- I I I ~-------------------~ I I I i I I i I I I' I I I : ~ . I ' I I I I I I I I ~___________________V COOPER HIGH SCHOOL PROPOSED GYM ADDITION OPTION 3 N ffi o I 15 I 30 I 60 GfOR 0 4/lb/t999 0 Q,10120 0 CSJ UJ~LD ,/" I^IALKING TRAC.K ~ ROOF BELOJi'l MEGH. , --, Y'iALKING TRAC.K ROOF BELOJi'l COOPER HIGH SCHOOL PROPOSED GYM ADDITION OPTION 3 - UPPER LEVEL o I I 15 30 I 60 F, \C.OC'FCR&YMADD'OPTION$- 2\811OPT23.oy<; GfOR 0 4/16{199q 09110111 0 c.5J N ffi ,-- I 1\ i[ I \ 1 I I mmmm mm L__ .." ""'" I-- I o I \ e. I $' b \ \1 r I L_ ../ a~ } ii r-""""'" ) ,,""" .vc_uc ~ ._~ - "" -- ..... u c5 c '0 '0 / --- - -- ') I ! (:: -- "'\ I ( -11 \, - " \ \{ I 7-7 II I I II ~l~ I \ ~ _ JL I )"'- _ .J { '- - ~# I '-.../ -_ --- J ~.. L_~,-- \sr' 'EO'il' ~ .;... .. . e. ..=, ..- ..- --- W.tIT 'QJ' j ........... .e 00 .... 6 flI ~ - "\ r i/i COOPER HIGH SCHOOL PROPOSED GYM ADDITION SITE PLAN N ffi IW~LDI f,\l;OOA5'Eil'MADDIC<"T1C*!S-2\FD SITED"", GEaR. 0 4/16/1999 0 6150,39 0 c.SJ .... Approved EDA Minutes Meeting #4 CALL TO ORDER ROLL CALL APPROVE I\1INUTES REDEVELOPMENT PLAN AMENDMENT Item 4 New Hope EDA Page 1 CITY OF NEW HOPE 4401 XYLON AVENUE NORTH NEW HOPE, MINNESOTA 55428 July 27, 1998 (Meeting held at School District Adm. Building) President Enck called the meeting of the Economic Development Authority to order at 7:13 p.m. Present: Staff Present: Enck, Cassen, Collier, Otten, Norby (arrived at 8:25 pm) Sondrall, Hanson, Donahue, Leone, McDonald, Henry, Kern Motion was made by Commissioner Otten, seconded by Commissioner Cassen, to approve the EDA minutes of June 22, 1998, with a correction clarifying Collier's absence. Voting in favor: Enck, Cassen, Otten; Abstained: Collier; Absent: Norby. Motion carried. President Enck introduced for discussion Item 4, Resolution Approving 1998 Amendment to Master Modification to Redevelopment Plans and Tax Increment Financing Plans and Requesting the Approval of the City Council. President Enck noted that the EDA must take action on Item 4 before reconvening as the City Council and voting on Item 7.2. Mr. Dan Donahue, City Manager, stated the plan amendment would expand the district area to include the PPL housing redevelopment project and the Cooper High School Property. He stated the City has previously authorized the use of tax increment revenues to fund a portion of the costs for the PPL housing project but has not committed to any project or funding for recreational facilities at Cooper High School. Approval of the amendment expanding the district area does not authorize the expenditure of funds. Mr. Donahue reported that Hennepin County was the only taxing jurisdiction which provided comment regarding the tax increment hearing. He summarized that the County did not have any objections to inclusion of the Project for Pride in Living development, but commented that the use of tax increment for construction of a school gymnasium does not fall within Hennepin County guidelines for acceptable use of TIF. Commissioner Cassen questioned why similar funding was approved for the gymnasium at Armstrong High School. Mr. Donahue stated the County admitted that it was an oversight on their part. Commissioner Collier recommended separating the properties for the vote on the plan amendment. Mr. Donahue clarified that no formal action has been taken on the Cooper project. Further he stated there would be no change to the TIF district but only an expansion of the development area where funds could be expended in the future. Substantial discussion ensued regarding costs, commitments and the use of tax increment. July 27, 1998 MOTION H.C. LETfER Item 4 RESOLUTION EDA 98-06 Item 4 MOTION SUSPENSION AND RECONVENING OF lVIEETING REGENT APARTMENTS Item 5 9200 49TH AVE. N. IMP. PROJECT 597 Item 6 New Hope EDA Page 2 Motion was made by Commissioner Collier, seconded by Commissioner Cassen, acknowledging receipt of the July 24 Hennepin County memorandum and entering it into the record. All present voted in favor. Motion carried. Commissioner Collier moved approval of the following resolution expanding the plan to include the Project for Pride in Living property: "RESOLUTION APPROVING 1998 AMEND:MENT TO MASTER MODIFICATION TO REDEVELOPMENT PLANS AND TAX INCRE:MENT FINANCING PLANS AND REQUESTING THE APPROVAL OF THE CITY COUNCIL" . The motion for the adoption of the foregoing resolution was seconded by Commissioner Cassen, and upon vote being taken thereon, the following voted in favor thereof; Enck, Cassen, Collier, Otten; and the following voted against the same: None; Abstained: None; Absent: Norby; whereupon the resolution was declared dulv passed and adOPted, signed by the president which was attested to by the executive director. Motion was made by Commissioner Otten, seconded by Commissioner Cassen, to approve amendment to the plan by including the Cooper High School property. Voting in favor: Enck, Otten; Against: Collier, Cassen; Absent: Norby. Motion failed. The EDA Meeting was suspended at 7:32 p.m. to reconvene the City Council Meeting. The EDA Meeting reconvened at 9:03 p.m. (Commissioner Norby arrived at the Council Meeting at 8:25 p.m.) President Enck introduced for discussion Item 5, Discussion Regarding Potential Multi-Family Rehabilitation Project at Regent Apartments, 7136 60th Avenue, 6017 Louisiana Avenue, and 7124 Lombardy Lane (Project 645). Mr. Kirk McDonald, Director of Community Development, explained that the owners of Regent Apartments have inquired regarding fmancial assistance for rehabilitation of the three-building complex. Mr. McDonald inquired whether the EDA would be interested in providing fmandal assistance similar to the New Hope Apartment project approved in 1994. He stated the owners are requesting a loan and consideration of a grant for a portion of the project The EDA directed staff to communicate with the owners that the EDA would consider a loan opportunity but would not be willing to consider any form of a grant. President Enck introduced for discussion Item 6, Discussion regarding Development Options for City-Owned Property at 9200 49th Avenue North (Improvement Project No. 597). Mr. McDonald provided history of the property and that Upper Midwest is no longer interested in the site. Mr. McDonald requested direction from the EDA on how it wishes to proceed with the site and offered the following options: 1) no action; 2) reconsider previous proposals; 3) hire a commercial real estate person to market the property; or 4) have staff develop a Request for Proposal outlining the types of development the City would prefer and seek request for proposals from interested persons. The EDA directed staff to pursue option 4 by developing guidelines for the use of the property . July 27, 1998 EDA REQUEST FOR ACTION Or1glnaung Department Community Development Approved for Agenda July 27. 1998 Agenda ~ction EDA By: Kirk McDonald Director By. ) If Item No. 4 RESOLUTION APPROVING 1998 AMENDMENT TO MASTER MODIFICATION TO REDEVELOPMENT PLANS AND TAX INCREMENT FINANCING PLANS AND REQUESTING THE APPROVAL OF THE CITY COUNCIL The attached resolution states that the New Hope Economic Development Authority approves the "Master Modification" to the Redevelopment and Tax Increment Financing Plans and requests the approval of the City Council. This resolution should be adopted prior to the City Council public hearing and prior to the adoption of the Council resolution. The resolution states that the modification services the original goals and purposes of the city and HRA by redeveloping property in the City in order to prevent or reduce blight, blighting factors and the causes of blight by providing public facilities which will be of benefit to all residents of the City. The U 1998 Amendment" authorizes the expenditure of tax increment revenues derived from the Tax Increment Districts to pay a portion of the costs for the PPL Housing Redevelopment Project on Bass Lake Road and for recreational facilities at Cooper High School. ManON BY TO: JUL-22-98 WED 11:38 FAX NO. 4255867 P.04/11 Com.ri1issioner introduced the following resolution Md moved Its adoption: EDA RESOLtmON NO. 98- RESOT .UTION APPROVING 1998 AMENDMENT TO MASTER MODIFICATION TO REDEVELOPMENT PLANS AND TAX INCREMENT FINANCING PLANS AND REQUESTING THE APPROVAL OF TIm CITY COUNcn. BE IT RESOLVED. by the New Hope Economic: Development Authority (the "EDA~, as folloW3: 1. PrQposed Amendment. The Housing and Redevelopment Authority in and for the qty of New Hope, Minnesota (the IIJ.IR.A~ lws approved six rcdc:vclopment plans, as defined in Minnesota Statutes, Section 469.002, subdivision 16. designated as ~eve1opment Plan 80-2, Redevelopment Plan 81-1, Redevelopment Plan 82-1, R.cdevdopment Plan 8S-1. Redevelopment Plan 85-2 and Redevelopment Plan 86-1 (the 'Redevelopment PlaDs->, and redevelopment projects to be undertaken putSUaU1~, as defined in MInnesota Statutes,. Section 469.002, subdivision 14 (the 'Redevelopment Projects" and that in 01'der to finance the public redevelopment costs to be ineurred by the liRA in connection with the Redevelopment Plans and the Redevelopment Pn)jects, the HRA has approved tax increment finan<;ing p_ pursuant to the prOvisions of Minnesota Statutes, Section 469.175 (the 'Financing Plans" which establiih taJt increment financing dimica, as dcfiDcd in .Min~ta Statlltess Section 469.174, subdivision 9, which are desianated by Hennepin County as Tax Increment Finant'inS Diitricts Nos. 1601, 1602, 1603, 1604, 1605, 1606,1607 and 1608 (the -DistrictS"). Pursuant to Minnesota Statutes, Section 469.094, subdivision 2, the City bas transferred control ofthc Rcdcve10pment Plans, the Redevelopment Projects, the Financing Plans and the Districts from the HRA to the EDA. On July 25, 1994, the BOA approved Q1\ amendment to the Redevelopment Plans, the Redevelopment Projects and the Financing PlaM which is entitled &Muter Modification to the Redevelopment Plans and the Tax I:acrement FInancing PIam- (the 81994 Master Modification") to combine the area.<<l subject to the Redevelopment Plans and to exp8Dd the area subj~ to the R.edevc1opmc:ut Plans and to authorize tbe expenditure of tax increment revenue derived from the Districts to pay public redeve10pmct costs in the addi1ionall.1'Ca made subject to the Redevelopment Plans by the 1994 Master Modification and other public improvement costs. On October 9, 1995, the BOA aDd City ~ additionalllDa1dmcnts to the Redevelopment Plans, the Redevelopment Projects and the Financing PlaDa mtitled 5199S Ameadment to Master Modiiication to Redevelopment Plans and Tax Incremem f1nA~\ng PlanS" (81995 Amendments to Master MMiijcation'. On February 24, 1997, the EDA and City approved additional amendments to the Redevelopment Plans. the Redevelopment Projects and Financing Plans entitJed 51 m Amendment to Mater Modification to Redevc10pmem Plans and Tax Incn:ment FIDancing PlanS' (the 81997.1 Amendments to Master Modification'. On Apri127, 1997>> the EDA..azKl City approved additional amendments to the Rcdcvdopmcnt PlaDs, Redevelopment Projects. and Financiq Plans entitled '1997.2 Amendment to Master Mo<I.ification to JUL-22-98 WED 11:39 FAX NO. 4255867 P. 05/11 Redevelopment Plans and Tax lncrement Financing PlanslJ (the q 1997-2 Amendments to ~1er Modification~. &th the 1995 Amendments to Master Modification and the 1997-1 Amendments to Master Modification (but not the 1997-2 Amcndments to Master Modification) included additiomI property in lhe area subject to the Redevelopment Plan.c: and each of the 1995 Amendmentt; to Master Modification, the 1997-1 A.mcndmcnts to M8Ster Modification and the 1997-2 Amendments to Master Modification authorized additional expenditures of tax increment revenue derived from the Districts. The 1994 Master Modification, the 199' Amendments to Master Modification. the 1997-1 Amendments to Ma~r Modification and the 1997-2 Amendments to Ma:rter Modification ace herein together referred to as the "Master Modification-. It is now been proposed that the EDA approve an additional amendma1t to the Redevelopment Pl~ md the Financing Plans which is entitled -1998 Amendment to Master Modification to Redevelopment Plans and Tax Increment Financing Plans>> (the &1998 Amcndmen~) to expand the area subject to the Redevelopment Plans and to authorize additional expendi1ure$ of tax increment revenue to (i) pay redevelopment cosl::s in the area subject to the Redevelopment Plans, including.. but not limited to, the additional area made subject to the Redevelopment Plans by the 1998 Amendments, aml (ii) pay adm1nlstrative expenses of the EDA and the City. 2. ~Wt'ova1 of 199R Amendment The 1998 Am.cndmem has been presented to this Board and is ordered placed on tile in the office of the Executive Director of the BDA, and the 1998 .Amendment is hereby approved. The 1998 Amendment further ~es the original goals and purposes of the City and BRA in approving the Redevelopment Plans, the Redevelopment Projcct3 and the Financing Plans, by rt:developing property in the City in order to prevent or reduce blight, blighting factors and the causes ofbJight and by providing facilities available for use by the public which will be of benefit to all residents of the City. including those residing in the area subj~ to the Redevelopment Plans. 3. ~tation to City Council. 1'he 1998 Amendment hereby approved shall be Presented to the City Council .for a public hearing thereon pursuant to Minnesota Statutes, Section 469.029, subdivision 6 and Section 469.175, subdivision 4. Dated the 27th day of Iuly, 1998. President Attest~ Executive Director .2- JUL-22-98 WED 11:38 FAX NO. 4255867 P,03/11 CERTIFICA l'E NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY I. the undersigned beiDg the duly qualified Executive Dim;tor of the New Hope &onomic Development Authority. hereby attest and certify that: 1. As such officer. I am the recording officer of the New Hope Eoonorni<; Development Authority and hAve the legal cUStOdy of the original record from which the attached resolution was transcribed. 2. I have carefully compared the attached lC3Olution with the original record of the meeting at which the resolution was acted upon. 3. I find.the attached resolution to be a true, C01TeCt and complete copy of . the original : EDA RESOLUTION NO. 98-_. _ Resolution Approving 1998 .Al'N!ndment to Master Modification to Redevelopment PlAD3 and Tax IDQI'Clncnt FirumQng Plans and ReQuestina the Approval of the City CoUDcil 4. I further certify that the affirmative vote on said resolution W8$ -===-- ayes, - nayes, and _ absent/abstention. s. Said meeting was duly held., pursuant to call and notice thereof, as required by law, and a quorum was prcacnt. WITNESS my hand officially as such Executive Director this .. 1998. day of Daniel J. Donahue, Executive Din:ctor JUL-23-98 THU 09:23 ~ L.J~. WJ.u..w.l O. SW~SClN Sr'E'vliN A. SONDRAJ.J. MlClAal.. It l...4.Pt.E:ul w.u'mlP.~ 3&aTl" A. Pl!:QY* C. Al.DEH ~RD/t OP COUNsE.I.. I..oRDlS O. BaYNEST AD ... ,..". Law ...... CIri6II.,. ,... --- ~ ~ 4na ..... FAX NO. 4255867 P. 02/03 JENSEN SWANSON & SONDRALL, PA Altor'Mys AI Law 8S2$ EDINDOOK c.o&mlG, STl!:.. 201 lbOOELYN PAH, MI:NNuoTA 55443.1999 TEI..E:PBONX (612) 414-&811 . 'T'RIn.4x (612) 493-5193 J u 1 Y 21, 1 998 Kirk McDonald City of New Hoce 4401 Xylon Avenue North New Hope, MN ea428 ~E: ~eaolutiona Approving 1996 Amendment To Master Moditication To Redevelopment Plans And Tax Increment Financing Plans And Making ~inding8 With Respect Thereto Our File: 99.11200 Dear Kirk: ~'ea8e find copies of two resolutions as described above and the actual 1998 Amendment for consideration at the July 27, 1998 City Couneil and Economic Development Authority meetings. The 1998 Amendment provides for tha fol1owing things to occur: 1. the ine1usion of property at 7300 and 7332 Bass ~.ke ftoad and the aouth 100 ~..~ o~ 7323 58th Avenue Nor'tn in the redevelopment plan area for TIF fund use to assist in lawful redeva1opment. Specifically, ita inclueion in ~he PPL MHOP housing project. 2.'authorization for the eOA to expend fund. to ..aist tne 281 Schoo' Di8tric~ to conetruct a gym addition at Coooer H1gh School on condition the gym facil ity will be available for u.. by r..identa of the City on eveninge and weekende. The 1998 Amendment a1so sets forth the City's Stat~nt of Need And Objective.. Briefly, thie ;noludee a need for additional moderately priced housing within tn. C1ty, elimination of blighted grooerty and the development of JUL-23-98 THU 09:23 FAX NO. 4255867 P. 03/03 Kirk McDonald J u 1 Y 21, 1998 Page 2. more recreat10nal facilities in the City. It also expla1ns the nat.u~e of the Tax Incr.ment expenditures, seta forth a budget and makes other findings indicating a need tor the ~mendment. Since the EOA is requeating the City Council to consider and pass on these ClrMndment'.$ at the July 27th publiC hearing the EDA resolution should be passed first. Therefore, when this matt.~ ;s reached on the Counc;' agenda the Coune; 1 meet; ng shou 1 d be suspended and the eOA meeting convened to consider and adopt the eOA resolution first. The Council meeting should then he reconvened, the Dubl; c hear; ng conducted and the Ci ty Coune; 1 ~esolut;on considered and adopted. Please contact me if yoU have any questions or commenta on this matte~ . Very truly yours, $i:- Steven A. Sondr.11 z:sas:t1 attachments cc: Valerie Leone JUL-22-98 WED 11:39 \ . FAX NO. 4255867 P. 06/11 1998 AMENDMENT TO MASTER MODIFICA nON TO REDEVELOPMENT PLANS AND TAX INCREMENT FINANCING PLANS NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY MASTER MODIFICATION.. APPROVED JULY 25, 1m 1995 AMENDMENT - APPR.OVED OCTOBER 9, 1995 1991 AMENDMENT..APPROVED FEBRUARY 24, 1997 1 moo2 AMENDMENT. APPROVED APRIL 28. 1997 1998 AMENDMENT . APPROVED JUT,Y 27, 1998 JUL-22-98 WED 11:39 FAX NO. 4255867 P.07/11 1. INrRODUCTION The Commi~oners of the Housing and Redevelopment Authority in and for the City of New Hope, Minnesota (the ABRA") and the City of New Hope, Minnesota (the gCi~). have previously approved six Redevelopment Plans designated as Redevelopment Plan8Q.2, ~elopment Plan 81-1. Redevelopment Plan 82-1, Redevelopment Plan 85-1, Redevelopment Plan 8.5-2 and Redevelopment Plan 86-1 (the "Redevelopment Plans~, and have approved redevelopment projects (th1:: ARedevelopment Projectsj to be undertaken pursuant thereto, and in order to finance the public redevelopment costs to be incurred by the City and the HRA in conn~tion with the Redevelopment Plans and the Redevelopment Projects, the HRA and the City have approved various tax increment fmancing plans (the "Financing Plans-) which establi~h tax increment financing districts designated by Hennepin County Q Districts 160 1, 1602, 1603, 1604, 1605, 1606, 1607 lWi 1608 (the "Di::ltrictsj. Pursuant to Minnesota Statutes. Section 469.094, subdivision 2. the City ha~ transfen-ed control of tho Redevelopment Plans, the Redevelopment Projcct3, the Financing Plam and the Districts from the H.RA to the New Hope Economic Development Authority (the "EDA~. Tn order to authorize the City and EDA to undertake certai.n activities designed to remove, prevent and reduce blight. blightina factors and the cau.C\e.S of blight in the City and provide facilities intended to serve alllesicicnts ofthc City, on July 2S, 1994 the EDA and City approved amendments to the Redevelopment Plans, the Redevelopment Projects and thc Finlmcing Plans entitled.Master Modification to Redevelopment PIan and Tax Increment Financma Plans" (the '1994 Master Modification~ which (i) combined the areas ~ubject to the Redevelopment Plms, (ii) included addltional property in the area subject to the Redevelopment Plans and (ill) authorized tax increment revenue derived from any or the DistrictS to be utilized in any area subject to the Redevelopment Plans. On October 9, 1995, the BDA and City approved additional amendments to the Redevelopment Plams, the Redevelopment Projects and the Financins Plans entitled &1995 Amendment to Master Modification to Rcdcvclopmcnt Plans and Tax Increment Flaancing Plans" (the "199' Amendments to Master Modification"). On February 24. 1997> the BOA and City approved addit.icmal amendments to the Redevelopment Plans, the Redevelopment ProJ~ and the rinancing Plans entitled '1997 Amendment to Master Modification to Redevelopment Pll.D3 and Tax Increment Fimmcing Plans" (the "1997 .Amendments to Master Modificationll). On April 28, 1997, the EDA and City approved additional amadment3 to tho Redevelopment Plans, the Redevelopment Projects and the Financina Plans entitled '1997-2 A.mencbuents to Master Modification to Redcvc10pment Plans and Tax ~ Financll'l& PIans- (the "1997-2 Amf!ndmenm to Master Modification"). Both the 1995 Al11f!I1dments to MISter Modification and 1997 ).~amena to Mula' Modiftcation included addftional property in tbe area subject to the Redevelopment Plans, and the 1995 .Az:neudments to Muter ModificatiODt the 1m Amendments to Master Modi1ication and the 1997-2 Amendments to Master Modification each authorized additioDll exptDditures of tax incremem revenue derived from the Districts. The 1994 Master Modification. the 1995 Amendments to Master Modification, the 1997 AmeDdment3 to Master Modification lUld the 1997-2 Amc:ndments to Master Modification arc berein together referred to as the -Master ModificationlJ . JUL-22-98 WED 11:40 FAX NO. 4255867 P.08/11 The EDA has identified certain property in the City not presently included in !iny of Lhe areas Subject to the Redevelopment Plans which the EDA believes either presently contains blight or blighting factors or which because of age, obSOlescence. market conditions and other factors is suspectable to blighting conditions, or which could be used for additional recreational facilities to serve ~ideJJts of the City. Such property consists of the property located at 7300 and 7332 Bass Lake Road in the City and the :south 100 feet ofpropeny located at 7323 SStll Avenue North (PID #05 1182131 0005) (toiether. the "PPL Project Property'), and Cooper Senior High School located at 8230 4Jlh Avcnue North (the "Cooper High School Propeny-) (the PPL Project Property and Cooper High &hool Property are herein together called the II Additional Property-). It is proposed that the EDA acquire the PPL ~ject Property and certain adjacent property which is already included in the area subject to the Redevelopmcm Plans and sell such property to Project for Pride in Living, a Minnesota nonprofit COrporation (rpPL II), which proposes to redevelop such property by the conmuction of II 34-unit rental townhouse development (the "PPL Housina Project-). It is proposed that the EDA pay a portion of the cost of a gymrwium addition (lh~ lfRecrcational Facilities") to be CU~1rUcted to Cooper High School by Independent School District No. 281 on the Cooper High School Property. Such gymnasium 8ddition will be available for use by residents of the City in the evenings and on weekends and will provide needed recreational.facilities for the City. By the M8$tCr ModifiCAtion the Comm.issioners of tile BOA amended the Redevelopment Plans to combine the areas subject to the .Redevelopment Plan3 and include additional property in the an:a ~bject to the Redevelopment Plans and amended the Financing Plans to authori2e the expenditure of tax increment revenues derived from any ot the DistrictS for public redc:velopment COsts incurred by the City or BOA in connection with the development and redevelopment of any property in the orca subject to the Rc:dcve1opment Plans and to pay costs of a community center to be located at Community Center Park. By tb.ia 1998 Amendment to the Master Modification the Commissiom:rs of the EDA includes the Additional Property in the area subject to the Redevelopment Plans and ~, the Fioanoing Plans to authorize the additional expcndit;un, of tax increment revenues derived from any of the Districts for public redevelopment costs incurred by the City or BOA in connection with the development and redevelopment of the PPL Housing Project and the Recreational Facilities. This 1998 Amendment to the Master Modification';' D01 include the Additional Propcny in any of the Districts. This 1998 Amendment to the Master Modification is approved by the Commissioners of the EDA and the City pursuant to M'Jft1'tC;~ Statut~ Chapter 469.029, subdivision 6. and Minnesota Statutes, Section 469.175, subdivision 4. .2,. 07/2~/as THO 11:07 FAl 15123.025.. DORSEY QI1"NEY liJOO% n. ST A TEM1r.NT OF NEED AND OB.JF.cnVF~ The development of the PPL Housing Project will aid in the redevelopment of the pt'Operty in the area subject to the Redevelopment PIaos in a manner beneficial to the residents of the City and consistent with the objectives oftbe EDA as stated in .Redevelopment Plans and will aid i.D. the construction of rental housing facilities in the City for families of low and moderate income, all of which will meet the needs specified in Redevelopment Plans. The constnJctiOll of the Recreational Facilities will provide needed recrcatio.aal facilities for residents oftb,e City. In. ADDmONAL EXPENDITURF. OF T A'X INCRF.Ml:N1: Additional expenditures of tax i.ncremcm authorized by this 1998 Amendmcct to the: Master Modification of the Redevelopment Plans aDd. Tax Increment Financing Plans include costs associ8.1ed 'With the site development and construction oftbe Recreational Facilities and the acquisition by the EDA of all or a portion of the property on which the PPL Project will be located and the demolition or rehabilitation of existing buildings located thereon and site development and other public redevelopment costs associated with the redevelopment activities related to the construction of the PPL Housing Project. White the adoption of this 1998 Amendment to the Master Modification authorizes such expenditures of tax increment, it does not obligate the City or EDA to assist with the devclopmcm of the PPL Housing Project or the coDStl:'uction of the Recreational Facilities. [n 1994 Spri.agstcd I.acorporated on behalf of the BOA has prepared an analysis of the cashfJow of the District8 through the year 2004. A tOpy of sacl:l casbfJow analysis is attached as Exhibit B to the 1994 Mastez Modification.. Not iDcluded in such analysis is any tax incra:ncut revenue derived from the tu ~t 5naocing district designated in Hennepin County as 'fax Increment Financing District No.6 (in which is located the Anthony James Apartments) since bec.au.se of obligations previously incurred by the City aDd the BOA it is not expected that thete will be any excess tax iDctement .revenue generated by such District during the period covered by the cashfIow analysis. The estimated total cost oftbe Recreational Facilities is $2,300,000. The use of tax increment derived from the Di~cts to pay aU or a portion of the costs of the Recreational Facilities is hereby authorized. follows: The total costs of the Recreational Facilities is pIaC.Qtly estimAted to be as -3- JUL-22-98 WED 11:41 Site Development Construction Fees, Testing. Survey, Pcrmit~ Contingency FAX NO. 4255867 P. 10/11 $ 80,000 1,900,000 198,000 122.000 $2,300,000 The estimated additional expenditure of the tax increment .rell:tt.ed to the acquisition Md developmeot of the PPL Housing Project is not to exceed $1,400,000. The use of up to S 1.400.000 of tax increment derived from the DUtricts to pay public redevelopment costs related to the PPL Housing Project is hereby authorized. Costs of the PPL Housing Project to be paid with tax increment will consist of land acquisition co~lS and site development. The estimated costs of the PPL Housing Project are as follows: Land Acquil\ition and Relocation Site Work COnstruction Development and Professional Fees Financial Co~t3' and Reserves $1,702.000 454,658 2,527,019 603,284 -1.~ $5,484,864 In addition to the foregoing costs, the use of tax inc.rcmc:nt to pay administrative costs of the BOA related to the Redevelopment Plans. Redevelopment Projects and Financing Plans in the amount of up to $500,000 i3 hereby authorized. Costs authorized hereby to be paid with tax increment revenues of the Districts may be paid directly from tax increment derived from the Di3tricts, or may be paid indirectly from twc increment derived ~ the Districts. by the payment of debt service on a loan or rOMS made by the City to the EDA or by the BDA to finance such OOSL Any such loan made by the City or BOA will be repai~ with interest. from the tax increment derived from the Districts. Other than the loan or loen:s from the City or the EDA, it is not expected that any obliiations will be issued by the City or EDA to finance such costs. IV. FI~.i.L AND ECONOMIC tMPLICAnONS OF ADDmONAL EXPENnITUR1!'..~ It is estimated fi.CICaJ and economic implications of the additional expenditures of tax increment revenue derived fium the Districts authorized by this 1998 Amendment to the Master Modification will be as follovvs: The local governmental units other than the City which an: authorized by law to lC"V)' ad valorem propeny taxes in the area where the Districts are located are Independent School -4- JUL-22-98 WED 11:41 FAX NO. 4255887 P.111tt . . District No. 281, Hennepin County, the HRA, the EDA, and various metropolitan area authoritic.1, including the Metropolitan Council. the Metropolitan Transit Com.rnWion, the Metropolitan Airports Commi~."iion and the Metropolitan Mosquito Control District (the local governm~t units). After the establishment and during the continuation of the Districts, as a result of the Redcvelopment Projec~ and the implemeIJtation of the Redevelopment Plans and the improvements in the Districts there has been an increase in the tlJX capacity of the taXable property in the Districts. If the tax increments derived from the Districu are not applied to pay the additional expenditures described herem, the Districts would tenninatc earlier than would otherwise be the case assumi.n2 ad valorem taxes are paid with respect to thc taxable property in the Districts in the anticipated amounts. Upon such termination such increased tax capacity would be available for taxation by the local governmental units. However, ~ a r=.-uJ.t of this 1998 Amendment to the ~lcr ModItlcation such increase in tax capacity will not be available for taxation by the local governmental units until at least ~ly 2007. v. DE'nRMlNA. nONS IN ORIGINAl.. FINANcmG PL\M The dctcrmin.ations made in the Financing Plans with ~t to desiiD8tion of the Districts as Redevelopment Distri~ the impact of the estab1tClh"lent of'thc Dbtricts and the implementation of the Redevelopment Plans and undertak.ina of the Redevelopment Projects and the captUred tax capacity of the Districts upon the redevelopment thereof am not a1l'ected by this 1998 Amcndmmn to the Master Modification and such determinations remain in full force and effect following the adoption of tbi:s 1998 ,,~ to 1he Master ModUIcatioD. VI. ADDmONAL AMENDMENTS TO PLAN; The City and the EDA resc:ve tho riabt to altet the Master Modification as amended by this 1998 Amendment to the Mastct Modifi~on and to fbnber amend or modify the Redevelopment Plans aDd the Financina Plans by their joint action, subject to the provisiows of state law resuJati.ag such action. va ORIGINAl. PLAN 'Ibe ~ Plana and the Fi~"g Plans, except to the extent provisions tbereofhaw pnvioualy been explicitly amended. or suppJernemed 8D4 are explicitly amended or SUJIp~ by thia 1998 A~~ to the Master Modification sbal.1 r=Wn in and be in fW11brce IDd effect. as.. ~ /' - BASS LAKE TOWNHOM!S DEVELOPMENT APPUCAnON PNj<<:I D.- ,1Uft Pro;c &:w Pride ill ~ JW09O" to ~ tbI block bft_ ~ W St"r'14a on Bua LU. ~ The ~ ~., olUJifty.fcut raaI~..... ........P*" ('Of lAt._ ~~ft wn.b fcuttec b.&r.obectc~ &Did rwray ~ IMIica. ~ ~ Iu.o.drooe ~ 1ft ~ by ~~ ..... 01_ ~~ ~ltxtS J'lto ~... t.... - l.IIIII .. 1100 .... !III wiD I'M) .. .. ,.. . !.II beip Owmern aM a..... (la - UIIia - ...... 1ft .,....~. ,.. ...,.... .... Wid&: eaM'ion AM surrcuad . CCUft"/Vd willa lIIlIDn ~ n. DIW to'MIi ~..... .. Il1o -. oriaad to tbe =unyvd. ,.,. *..4 ~MOO& 1%00.... rooc \Ilia. 111M _ V2 ..aDd aftal:heQ ......... Tbit .. WIt .. . alii' prioIily I:w *rvtlcp"*l .1M C~~ P\aa U,... t.w few d>> IIW ~ ~w4.- _ ,..... fJt. ,- -, d ponioI 0I..1CIaool di.taict lMd fMX'IIl 01_ .... 1M' pMl. ... ...... U) - tAlI.... .. .. _ pwdwe aDd ~ ~ a Pf'*- pi a:ioe IDd ... CCU'lfMrQII ~.... ,.. ..... b.JrpCes to be , l'ewaed baw ...,. ..... ~ IDd U'oubIed profIftY ..... - J I ]~ _ ~ h.&s t~ ~ tll...... .. ...... ....... ~poIcI- U) a Ntw ao,. ~ Id4rts.s There an %t ~ooca loIIIia ... ur.- ___.. ,..........,.. ia dIiI ~1DpIcx \lr'U l'~..td tot '* . alftlUP boIM.. ~ .. .... .. '" .. DOIpI'O& COtDmW\it'j Cue Co~ ". ~ . raaia _ PPL ,... U) pwciltl nata CO rB)YI&f the eX'ttflor u wtD u a. 01...... if_ ~ is to...... ..., fI/* I'f J:J- ProeI:l ft:w PrWIillJNl .....,..011 ~ dMlcp ~ ~ lOW Us iu 26th '.ur or ~ ~.... eo -QII *,,*,plDlal. ~~ -jolt CI'IiaiDI prosnms As ~'" of l ..... . look .. ~ to cIIYtIop .... r.u _~ Pft. vUilId t'lp ;:::e$ to sotici& ... fIl ,",'1<1. propenieI. wMA o~ .... .. to .., atrora.ab\. ~.. ..,. .. would lito toM eomIIIL&ftifY ~ T'lil1iII WIt me h cho,e. Ul'IC~.! the dne... ......... MAl". The SIt. olin me'~ U) ~ tbI ~ IMpl.. _ ...,... ia a eos& mlCtl\ e way The addiQoa of me ...... pnMd. lll.tad ~ .. ~.. .. ~ ptd.tn ar..: ~l&y at.. wbicft is ~ hcB all eat uu1Ic aM VfIl1 .. Ix' cbiIdra Deoliaoc or the !J.j 5Wioft and o&e "'a1~ proWle me eMnee to cr.- a rllidlwAl "... Oft 8uI L.ae !t':l': u well u a ran ~ Cot .. eo~ ". lld1r~IIl" .. ,tbt Schcol Otstr.,;: a.Uows IDOUp CO~... to be built to make eM pc'OjtQ ~:-.., ...... Pap 1 of .. 10 tis die &I of19ge.,PI.. Pfll1attd I 'O~ prcpotll to tat s.. Hope &c~ roiJowtd by. -u t., oltbl_pbon to en. Sill (Cryq -1.,)' --. ~ ~1'Y, ... , Ca....__ 111_., .~ A4lacC1t l'.ocDIC"'" a:pr...s SUppon ''ll ~ ~~opm.u ~"IM ppt, ~~ CO U22pr ~ ~i'~~ hi eM site as weU as soNe ~ pro~ ~ problema~' ...4 ~ '~ ~I~~ fioom ~ ~ QWIWS ovtr w. yws " To ~ rtqWnmenu f'ot ~ &adiq. * EDA voted awOlrW ola'~l"..pmem ^tJMft)CC wn.b PPL oe F~ 9. ,1991 wftici ._, S9OO.OOO ~ ~ tbe Cirys ~ to ;or 1'""'m1 propInMI wbidl ~ be tW__ ~ pnv.. ~.actl ... ... h:Jl..w) .v...,--- R.a r. - %2 .n. t'I&I \Ilia .. .. . S109Iw _ .. bedr~ ~ And S"SC for tbI tbur bIcirooca YIia. .. aDd ~ In _ by _ ~ ---td. 11 1 to S I 0 I ~ ~tI ,...-, toeD eM ~ ~ K~'~ F"lMaCe ."JIDC) ,.... _ u.. YmU 0. ~ by ~ii- we ~_J'" ifteoel* olS31,6OO . S3S~ (. dill.. tbIy meve U'1) 1% will bIM r.u wtIiQ IIow -- to PlY 3eM ~.. _=... 1111 COlI ~ ~ theM WIllI. pU a .." ~ r.-1Ubtidy. .. prO\*-I by tbI Mc~ ~I~ ~a Prosnm (ltOIOP). ... tJI... ... .. to be 6..4 .. to ~-, oa I ~Us "*ic iW'~ MliIiIII ill; me .. a:u (..., _ uup* ~ ..... 011 '" ... k) .... fbr New Hope,..i iliA . tJI_ MHOP \Mia .be .. be*~ .. IDd . 'triA be f'cut beirooca will. 0. dIne_ OM a:u bldrooe ... .. be .. "1IJt* ~D'oIe. AD ~q (rIIIrka ... .. MHOP) will be c:artIfWIy JC:I'tIDIt .as IBL&II baw a Icod rental tucory. aOIqwa SeIDe . dbnI_ fa lid 10 ~ ~ PPi. wiI Pf~ . . iii. .....~ oIJce (~ ~ to be buill QUI ia tbt OaMmtl'lC of OM ~_ ...,1..) . .. . . .... ~. PPL _..... & StIf..SufBcitn~ Pratra wwa ,.~ 1WOIl-"'- 8:w PPL rwH 1 ., .. " ~ ~ ICCW scr"ce PfOII'IIDL ll1i ~ '"*117'" , ~ ~~ __ trDp&o;IMK ~I~ aDd chUc1 iftC1 adult ... an ." IlU ..... . L.-lllIIIiII (IJOO or L 700 !qUIA _ "" YIIIM _~ ~) .. L'.2....,... " ' 18 0.. ... .. oI'-tIn<< pariciftJ spICe per .. II Pi~_ udur ... .. ~ Iud.... ~ witi ~O\lftd eqYl~Fr.e~: 1\ liu.d dIiJd ..ldjlCa to .. II UrII public: pla)1I~" pIaY\ftI WcSs ~IC" to ~ II C = ~ .. rKioe .. odw prosnmt adjaea to _ 1\ OI._"~~ Pile % of .& 1: ..... . _ o.r.n--w, R.dr. .,..1 Cee: ."'~ ~ III ~ o&. bwJ4inI. sc~ laDd. acqWicioa ~..... wm. retoc.uioft Si~ LDCh.&d.inI s&onD MWW, d.tmcUtioG. UW'!, led bcriap SuMocal ~pmIDI Dtv.,..., C..- AcquisiIioe ~1aad - ~ C~ aDd wJPi"'D:)" ~p. lepL prol;M~~ -"pmI'" - F"mucinI a CIITYiDI CWpI, ~ w.al~ T_ 0...,..., C.. fI..~ ~~ Ko-J"C"~ AfIWi:Y" ..... M:i~ HcNsiDI F"~ Af/1IJI:'1461.cl. family H~.. FUDd 461.cl ,.. ~~ MOJI"'~(MHOP).. s. ... h8a ... ot_ cnIlID HOME Lola eo. ftv- )f c~ ~ity of*- Ho,dDA T_ ,... n- - If ToaI ,.. t'.ic 1,%65.000 4",651 1.~.65' S7,490 431,000 1,'21,019 603.2M 142.,904 3,110.%01 109.124 l.14..t 1 534,031 393,120 340.000 1,335,11' I,Sa-S. 400,000 900,000 "' -- ti'4Jti .~ ~I ftJi. .1111" J4 COUSY an. is ~ b MIr 1:' T1II K~~eQ Kowu\I F"~ ~J I Y (11 P ~. dill 'DIy HowIiftI '\lllilola) ."'ulM to -.u ftmdinI dtc1Sl0ftS on MIJ 21. "". ~1Ii=..IquiIy'. _.... a ~~'...., ~lWJ4ilRYlltl wa a bIl ~td by 1uDIn. n. ... is otMd b 011 Of belen A'Jp'- 3 t. 19M. widl""'" to beIiD OM weeK ~ C~ cimI illIYC tDIOGIbI. ,.~ iI~ b May, 1999 Pap 3 of 4 l~ CITY OF NEW HOPE Memorandum .. TO: Doug Sand.tad, Building Official Kevin MeQinty, New HOJ:)e Fire Chief Randy Kurtz. Fir. Ins~or MarK Hanson. City Engineer KirK McDonald. Director of Community Development June 5, 1998 Proposed Gyms at CooJ:)er High Schoof 'ROM: DA T.: SUIIJ.CT: Enaosed for your .review and comment. pie... find. .v'!"J ~iminarf' ~ ~ans for adding gym s~aee at Coo,*, High Schoo4. We met with Schoo4 Oiltlict oflflciala ,artier th~ week and they presented th... two pjan Optionl and budgets. The contadI to date have bMn I)fimarily witt! the ParK & Rec ~artment to determine community recreationat needs. They .... now apptOaching the City reglWding the City contributing some T1F ftnancing to the profecl They com~ a similar project in PtymQUth earty last y..r and the City of Pfymouth contributed some financing. Option 1 il a ~nes ~ eonlilting of approximately 18,700 at inducing the divk* corridor between the building and the gyml. The intent wo..id be to have a community IntJ'anat on the west sIde so that the pub&lc could have accea to the gyms in the ~ II'Id on WMkandI ancI the gyms would be separated from the rest of the schoo4 buitding. Option 2 is apt:)fOximatety 2..000 If and indudeI a waOdnQ ~ wound the baIkatbaI courts. Option 2 could also indude four pnICtic:;e YOIeybal eourta. I think one of the primary f'MIOnI they are putting in the corridor separation ha to do with the snow ~ building code ~ (Doug?). Anottw major issue dileusMd W8I that there woe.-s be no....wn fdtIw avllillble fct the gyme, which of c:04Jrse is not acx:eptabIe. They woe.-s .... need to lWTIOdIIlnd NIYe ~... to the tMtrOwt'M in the existing schoo4 building Of .xi ,...~ to the new portion of the building. Another iIIue dilcuaMd was the ~arking that would be IIr'nNIeIIct wIh the ~ of the gyrM Ind whether Of not the tmet;ency vehicle acc:ea I'CItd on the north tide Ind the emergency wthide turn RUnd would be reeessary (K...nn & Randy?). They ...4:'.1 I d tNt they would be IoIing 22 J*king tpeCII tNIt .... cunwrtIy UMd for faculty. I befiev. ttMn is 1ft ... '" IIonn ..... !NIl would have to be ~ (Mn?). They did indicate to us that sprinklr'lG <11........ IChooI buiIding.~ for the umw of 1. and the gyml also would be sprinkled. 'The call in their blldgIt indudeI ...... ., the ,.. building. ",.. general tim..ine IS for ~Ian ~ -....., .bidcIng in tie Jp'ing.1nd conetruc:tion., the unmer of 1_. I know theM a... very sketchy pIanI but would Ilk that you giYe them a CU"IOfy rw1ew. Dan and I would appreciate your c::omn'WU . lOOn . potlibte. . the Council wit be dilcuaing their funding contribution in the "... futIn. Any ~ you c:outc:I ;lYe UI up front WClUId be hetptul. Thanks for your cooperation. ce: Dan Donahue. City M~ Shari French, onctor of Park & Recreation Jeannine Clancy, Dnc:tor of PublIc Worka Attachments: Ptana and Budget WQlD 3Q~~,~~f May ~ 1991 . . ... ) " ~ - 1.', ~..;. Jim CaW ' T n.~D!.inIt School Oi.saict '281 41.' W'L.D.DiII!tb Avenue North ~ew Hope. Mi"~ $S427.128& : \ ( ~.." .: ~ ~...:... : \t ~ r '.. II.::):.. :- 4 \4 '-oj . ~ .. ~ ; _ .:_ "E'!'" "'fr.."1 Ii Ii II "_.:\~. .. RI: 10iDl City ~New Hqle aDd!ndepende1U ~ Oisuict '211 Cooper Hip Scbcoi Add.iCioa o-",i~ No. 9999 Oar fUll: ~~ an pr-lillli_ry *..,~ ~ thI two opUoalI for tbI Cooper HIp ~ Ciyma.uiwn AMiMli. TbI ft:lUaw;q are l!!8'ilftAfaj projecl COIl "'111_" b: fKb apcica;. OPTION!: Sill~ftf CoaInaioe '. T.... !aMy, PnWa CNIfi~ S 60,000.00 S 1.100,000.00 S 116.000.00 S 114.om.OO S t-.-._ Pnjct TotII OPTION 2: SitI DeYekt ..- CoaInaioe F-. T...., ~. PtnDiIiI C-' r '1 S 10,000.00 S l,900.ooo.oo S 1"000.00 S 1 21.om.OO S UII.- ...... TItII .......... _,.... III buill ~ _......, _ aD _... will be - 1 I 1111_'" 11M aD" ....... ..... & __wiIl_ 0lJ rJlNew Hcpe'lI - '..~~ Ltl_... willa _.. is .... tbI ~..1ridl dII.. - "" It. 0IIIIIr, AlA PftiKl)" r'~- ...4JJJ _" - "'.J."- "/ .- t - r- :::: - '- ..... .,-. -- I - /. 0.- .,-. ;..- .- I......< ..-- ~ c U tF, - Q ::r: !:!:: j.;.J D- C C U ~ I ~ 6 .. . i i I ! 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