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Joint_Powers_Agreement_between_City_of_Chanhassen_and_ISD_1121 220659v10 JOINT POWERS AGREEMENT THIS JOINT POWERS AGREEMENT made this ________ day of ____________________, 2022, (“Agreement”) by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation (“City”) and INDEPENDENT SCHOOL DISTRICT NO. 112, an independent school district under the laws of Minnesota (“District”). RECITALS A. The City is the fee owner of the real property legally described as Lot 2, Block 1, Bluff Creek Addition, Carver County, Minnesota, according to the recorded plat thereof (the “City Property”), on which it operates a public park in connection with the Recreation Facility (as defined herein), which public park includes parking and city recreational fields, a warming house and a picnic shelter. B. The District is the fee owner of real property legally described as Lot 1, Block 1, Bluff Creek Addition, Carver County, Minnesota, according to the recorded plat thereof (the “District Property”), which it purchased from the City in 1994. C. The City Property and District Property are contiguous. D. Pursuant to a Joint Powers agreement dated April 14, 1994, the City and the District jointly constructed structures and improvements on the District Property, which included a building consisting of a District elementary school (“School Facility”) and a City recreation center, commonly known as the “Chanhassen Recreation Center” (“Recreation Facility”) together with outdoor recreational facilities on the City Property and District Property, all as depicted on the Exhibit attached hereto as Exhibit A (collectively, the Recreation Facility and the School Facility are referred to herein as the “Joint Facility”). E. The City financed the Recreation Facility and the District financed the School Facility. F. Pursuant to a Lease Agreement dated April 14, 1994 (“Lease”), the District leased a portion of the District Property to the City for the Recreation Facility. G. The parties desire to terminate the Lease and enter into this Agreement to provide for the mutual long-term use of the Joint Facility and establish the current rights and obligations related to the uses of the Joint Facility and related outdoor recreational areas located on the District Property and the City Property. H. Minn. Stat. § 471.59, et seq. (the “Joint Powers Act”), authorizes the City and District to enter into a joint powers agreement to improve, operate, and maintain recreational facilities pursuant to Minn. Stat. § 471.15, et seq. NOW, THEREFORE, the parties agree as follows: 1. JOINT FACILITY OPERATIONS COMMITTEE. There is hereby established a Joint Facility Operations Committee (“Committee”), the purpose of which is to coordinate the parties’ operation of the Joint Facility in accordance with the terms hereof, including, without limitation, as follows: (i) Oversee budgeting and allocation of costs of utilities for the Joint Facility; (ii) Evaluate insurance needs for the Joint Facility; DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 22nd August 2 220659v10 (iii) Oversee the mechanical and structural soundness of the Joint Facility; and (iv) Plan improvements to the Joint Facility and determine cost allocations in accordance with the terms hereof. The Committee shall meet at least once every six (6) months. The City and the District shall each appoint three employee representatives to serve on the Committee. The Committee does not constitute a “joint powers board” for purposes of the Joint Powers Act, the Committee shall not have the power to issue bonds or obligations under any law by which City or District may independently issue bonds or proceeds, and the Committee is not a committee of the District or the City for purposes of Minnesota Statutes, Chapter 13D (Open Meetings Act). The Committee is an advisory group with no decision-making powers and shall carry out its purposes set forth above by recommendations to the governing bodies of the District and the City. The Committee may at all times rely on the assistance of District and City staff to carry out its responsibilities hereunder. No meetings of the Committee may be convened without at least two representatives from each of the District and the City. 2. TERM. This Agreement shall terminate on April 13, 2093, unless otherwise extended by mutual agreement of the parties or terminated earlier. Upon the expiration or termination of this Agreement, the City shall own the City Property and the District shall own the District Property (other than the Recreation Facility), each with all repairs and improvements made during the term of this Agreement whether or not financed by the owner. 3. USE OF FACILITIES. A. The District intends to use the School Facility as a school and usual and customary uses associated with a school. The City intends to use the Recreation Facility to provide recreational services to the residents of the City of Chanhassen and other members of the general public. Any change to the foregoing intended uses shall require the consents of the governing bodies of the District and City, which consents shall not be unreasonably, conditioned, delayed, or withheld. To the extent that a use not contemplated above is desired by either party, said party shall notify the other party in writing of the intended use and provide such information as may be requested by the other party. B. Except as otherwise provided in this Agreement, (i) the City will have the sole right to the use of the Recreation Facility and (ii) the District will have the sole right to use the School Facility and nothing herein shall interrupt or interfere with the use and control of the School Facility as a school during normal business hours and all other hours when school-related functions and/or events are scheduled; provided, however, subject to the terms of this Agreement, it is mutually contemplated that each party will make its respective portion of the Joint Facility available for use by the general public and for use by community and civic organizations, in each case, on a consistent basis with other District and City properties made a available for public and/or community use. C. The parties agree that the Joint Facility shall be treated as “school ground” as contemplated by the alcohol control provisions of Minn. Stat. § 624.701; that the District’s alcohol and tobacco policies and regulations, and any additions or amendments thereto, shall apply to the Joint Facility; that the area should be appropriately posted; and that the City may withhold access from groups for alcohol or tobacco violations. The City agrees to enforce applicable statutes and ordinances in and around the Joint Facility in the same manner that the City enforces applicable statutes and ordinances on other park and school property. D. District Use of Recreation Facility. The City shall provide use of the Recreation Facility at no charge to the District for elections, staff trainings, and school concerts and plays. The District shall DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 3 220659v10 provide a schedule of events to be located in the Recreation Facility at the beginning of the school year. Any additional requests for use of the Recreation Facility by the District are subject to reasonable approval of the City representatives of the Committee and availability of the Recreational Facility for the requested use. 4. UTILITY SERVICES. A. Utilities Provided and Percentage Shares of Cost. The District shall provide all utility services to the Recreation Facility. Such services shall include water, sewer, gas, and electricity (“Utilities”). The City’s share of the cost of utilities for billings to the District for Utilities provided to the Joint Facility shall be equal to the percentage of the ratio of the interior square footage of the Recreation Facilities to the interior square footage of the Joint Facility, which the parties hereby agree is currently equal to 24% (“City Share”) The District’s share of cost of Utilities shall be equal to the percentage of the ratio of the interior square footage of the School Facility to the interior square footage of the Joint Facility, which the parties hereby agree is currently equal to 76% (“District Share”). If the interior square footage of the Recreation Facility or the School Facility are adjusted, the City Share and the District Share will be adjusted accordingly. It is the anticipation of the City and District that the City Share will approximate City’s use of Utilities. City or District may, at any time during this Agreement, propose to the Committee a different percentage or share of Utilities cost based upon actual use. The Committee shall consider any such proposal for change to the City Share and make a recommendation to the governing bodies of the District and the City for amendment of this Agreement. Any dispute regarding approximate allocation of Utilities may be submitted to arbitration. In the event this matter is submitted to arbitration, authority of the arbitrator is limited to the year during which the arbitration occurs and the previous calendar year. B. Payment. The District shall invoice the City for the City Share of Utilities on a monthly basis. All utility bills for the prior calendar year must be submitted to the City by February of the following year for payment. The City shall pay invoices within thirty (30) days of receipt. C. Other Services. Each party shall be responsible for the installation, maintenance and costs associated with the following services for the party’s respective facility: telephone, computer systems, security cameras, television and internet services. 5. MAINTENANCE, REPAIR, REPLACEMENT AND IMPROVEMENTS. A. Maintenance. Except as otherwise provided under this Agreement, each party shall be solely responsible for the maintenance and upkeep of their respective facility, including the upkeep and maintenance of all equipment located within their respective facility, and each party shall keep each of the same in good condition and repair. B. Repairs and Replacement. Except as otherwise provided under this Agreement, each party shall be solely responsible for repairs to all equipment, improvements machinery, furnishings and fixtures located within the party’s respective facility. C. Common Major Systems. The District shall be responsible for maintaining, repairing and replacing the Common Major Systems of the Joint Facility, subject to cost reimbursement by the City pursuant to Paragraph 5.D. “Common Major Systems” shall mean the following: Roof System DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 4 220659v10 Exterior Walls Structural Support Systems (including foundation) Electrical Plumbing HVAC Sewer and Water D. Recreation Center Gymnasium and Studio Flooring. The District shall be responsible for the annual recoating of the gymnasium and studio flooring surface located within the Recreation Facility on an as needed basis. The City shall be responsible for the resurfacing of the gymnasium and studio flooring, including sanding, painting and refinishing. E. Notice and Payment. Except as otherwise provided in this subparagraph, the District shall make all repairs and replacement of Common Major Systems to the Joint Facility pursuant to this subparagraph. The City and District shall promptly notify each other and the Committee in writing of the existence or perceived existence of a condition of any Common Major System in need of repair or replacement. The District and the City will make every effort to notify the other party of any Common Major System repairs by June 1st for repairs to be made the following year, in order to be included in the next fiscal year budget. Prior to the commencement of any repairs or work to replace any Common Major System, the City and District shall agree on the proposed course of action to repair or replace a Common Major System, and shall direct the Committee to prepare a recommendation to the governing bodies of the District and the City on how to proceed with repairs or replacement of any Common Major System. Thereafter, the City and District shall agree on the overall cost to complete such repairs or replacement. The City shall be responsible for costs for Common Major System repairs or replacement in a percent amount equal to the City Share. The District shall be responsible for such costs in a percent amount equal to District Share. It is further provided, however, that routine maintenance and minor repairs with an aggregate cost of labor and materials not exceeding Two thousand Dollars ($2,000.00) to Common Major Systems shall be excepted from the notice provisions set forth above, which such amount shall be adjusted for inflation from time-to-time as mutually and reasonably determined by the Committee. Either party may initiate said repairs as needed. The accounting for the City and District for such repairs shall be undertaken by the Committee during December of each year and allocated between the parties based upon the percentages set forth under Paragraph 4.A. It is further agreed and understood that in the event of exigency, emergency repairs to Common Major Systems may be undertaken by either the City or District. F. Improvements. Subject to the provisions of Paragraphs 5.B and 6, any proposed improvements to the Common Major Systems, shall be reviewed by the Committee and presented for approval by of the governing bodies of the District and City. Requests for capital improvements in a fiscal year must be submitted by a party to the Committee by June 1st of the fiscal year preceding the fiscal year in which improvements are to be constructed. The cost allocation for such improvements shall be the same as the percentages provided for under Paragraph 4A. 6. ALTERATIONS AND IMPROVEMENTS TO SEPARATE FACILITIES. Each party shall have the right to alter or improve their respective facility at the party’s sole discretion without notice to or the consent or prior approval of the other party, provided such alterations and improvements (i) are located on the improving party’s respective property, (ii) do not affect the structural or architectural integrity of the Joint Facility and (iii) do not interfere with the use of the other party’s facility. The DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 5 220659v10 alterations affecting part of the Common Major Systems under this Agreement shall require approval of the governing bodies of the District and City, whose consents shall not be unreasonably withheld. 7. FINANCING; MANAGEMENT CONTRACTS. A. Approval of Financing. Upon approval of the governing bodies of the District and City, either the District or the City may issue bonds or obligations to finance improvements to the Joint Facility. Notwithstanding the foregoing, improvements to the School Facility or the Recreation Facility, respectively, pursuant to Paragraph 6, may be financed without notice to or the consent or prior approval of the other party, provided such financing does not relate to improvements to the Common Major Systems, and provided such financing does not mortgage or otherwise impose a lien on the Joint Facility, except if the holder of such mortgage or other lien recognizes the rights of the City under this Agreement. B. Tax-Exempt Obligations; Private Business Use Restrictions. The parties acknowledge that either the City or the District may issue tax-exempt obligations to provide the funds to finance improvements to their own facilities or to the Joint Facility and that the maintenance of the tax-exempt status of any such obligations will depend, in part, on the parties’ compliance with the provisions of this Agreement. Accordingly, the City, the District, and the Committee agree (subject to the provisions of Paragraph 7.C) as follows: 1. That none of the City or the District shall take any action or permit any uses of the Joint Facility that would cause tax-exempt obligations issued by the District or the City, the proceeds of which finance or refinance improvements to the separate District Facility or the Recreation Facility of either party to fail to qualify as tax-exempt bonds, nor omit to take any action necessary to maintain such status; 2. That none of the City or the District shall take any action or permit any uses of the Joint Facility that would cause tax-exempt obligations issued by the District or the City, the proceeds of which finance or refinance improvements to the Joint Facility (the “Joint Facility Obligations”) to fail to qualify as tax-exempt bonds, nor omit to take any action necessary to maintain such status; 3. That the City and the District shall take any action to maintain the status of the Joint Facility Obligations as tax-exempt obligations; 4. That, to assure that the Joint Facility Obligations will not be or become “private activity bonds” within the meaning of 26 U.S.C.A. Section 141 of the Internal Revenue Code of 1986, as amended: (i) The City and the District shall not permit, at any time ten percent (10%) or more (in the aggregate) of that portion of the Joint Facility financed or refinanced with tax-exempt proceeds of Joint Facility Obligations to be used by any person or persons for any private business use (as hereinafter defined) while at the same time the payment of principal of, or the interest on, the Joint Facility Bonds is directly or indirectly (A) secured by any interest in (1) property used or to be used for a private business use or (2) payments made with respect to such property or (B) derived from (1) payments with respect to such property (whether or not made to the parties) or (2) borrowed money used or to be used for private business use. (ii) No portion of the tax-exempt proceeds of Joint Facility Obligations will be used DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 6 220659v10 to make or finance loans to persons other than other governmental units. For purposes of this Agreement, “private business use” means use (directly or indirectly) in a trade or business carried on by any person other than a governmental unit (as hereinafter defined). Use of the Joint Facility as a member of the general public will not be considered a private business use. Any activity carried on by a person other than a natural person shall be treated as a trade or business. Use by an organization which qualifies under 26 U.S.C.A. Section 501(c)(3) of the Internal Revenue Code of 1986, as it may be amended from time to time, shall be considered a private business use and if Joint Facility obligations are issued as 501 (c)(3) bonds the private use under 7.B.4 above shall be limited to five percent (5%). For purposes of this Agreement, “governmental unit” means a political subdivision within the United States, including any political subdivision within the State of Minnesota, but does not mean the United States or any of its governmental branches, departments or agencies. C. Bond Counsel Interpretation. If there is any question about the application of the foregoing restrictions relating to private business uses or loans, the City, the District, and the Committee agree to immediately request assistance from nationally recognized bond counsel prior to permitting any use or entering into any agreement which may be prohibited as provided herein. It shall not be a breach of any of the provisions of Paragraph 7.B if the City or the District take or permit to be taken, or omit to take, any action relating to use of the facilities in consultation with nationally recognized bond counsel. D. Management Contracts. The District or the City may enter into management contracts with third- parties for services involving all, a portion, or any function of the Joint Facility. Such services may include, but are not limited to, maintenance, technology and data services, food services, and janitorial services. Unless otherwise approved by nationally recognized bond counsel, any management contracts for tax-exempt financed portions of the Joint Facility must meet the following conditions: 1. The payments to the service provider under the contract must be reasonable compensation for services rendered during the term of the contract; 2. The management contract must not provide to the service provider a share of net profits from the operation of the Joint Facility. Compensation for services will not be treated as providing a share of net profits or requiring the service provider to bear a share of net losses if the compensation for services is: (a) based solely on a capitation fee, a periodic fixed fee, or a per-unit fee; (b) permitted incentive compensation (eligibility determined by meeting standards measuring quality of services, performance or productivity; or (c) a combination of these types of compensation.; 3. The management contract must not, in substance, impose upon the service provider the burden of bearing any share of net losses from the operation of the Joint Facility; 4. The term of the contract, including all renewal options, is no greater than the lesser of 30 years or 80 percent of the weighted average reasonably expected economic life of the Joint Facility; 5. The City or the District must exercise a significant degree of control over the use of the Joint Facility; 6. The City or the District must bear the risk of loss upon damage or destruction of the Joint Facility; DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 7 220659v10 7. The service provider must agree that it is not entitled to and will not take any tax position that is inconsistent with being a service provider to the District or the City with respect to the Joint Facility; 8. The service provider must not have any role or relationship with the City, District, or Committee that, in effect, substantially limits the City’s or the District’s ability to exercise their rights under the contract, based on all the facts and circumstances. 8. DISTRICT RESPONSIBILITIES. The District’s responsibility for the Joint Facility include the following, to be provided at the District’s sole cost and expense, except as provided below: A. Janitorial Services/Garbage Collection. The District shall be responsible for daily janitorial services for the Joint Facility. The District shall also be responsible for garbage and recyclable collection for the Joint Facility. B. Outdoor Facilities. The District shall be responsible for maintaining and repairing the School Facility playground and outdoor basketball court and any other additional District playgrounds constructed by the District on the District Property. C. Inspections. The District shall be responsible for inspecting all fire alarms, fire extinguishers and automated external defibrillators in the Joint Facility. D. Parking Areas. The District will be responsible for maintaining, repairing and replacing the parking areas and bus loop serving the School Facility, including striping, signage, curb and gutters. E. General Interior Maintenance. The District will be responsible for general interior maintenance of the Joint Facility, including, but not limited to, paint, carpet cleaning, replacement of ceiling tiles, and flooring; provided, however, Common Major Systems and the Recreation Facility gymnasium and studio flooring shall be maintained in accordance with Paragraph 5. 9. CITY RESPONSIBILITIES. A. Outdoor Areas. The City’s responsibility for the outdoor areas located on the District Property and the School Property include the following, to be provided at the City’s sole cost and expense: 1. Providing lawn care services, including mowing, edging, weed prevention, fertilization and trimming. 2. Maintaining the irrigation system. 3. Arbor care, including planting, treating, and removing of trees. 4. Maintaining and repairing the trail system. 5. Coordinating and performing snow and ice removal on streets, parking lots, sidewalks and trails consistent with City policies and giving priority to the foregoing that serve the School Facility on days that school is in session. B. Outdoor Recreation Areas. The City’s responsibility for the outdoor recreation areas located on the District Property and the School Property include the following, to be provided at the City’s sole cost and expense: DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 8 220659v10 1. Maintaining the ballfields, including fencing, dugouts, infields, and field paint. 2. Painting soccer fields. 3. Providing refuse and recycling for the park space. 4. Maintaining tennis and pickle ball courts. 5. Repairing and maintaining hockey rinks and asphalt. 6. Flooding hockey rinks and leisure rinks during the winter season. 7. Providing and maintaining portable restrooms in the outdoor fields. 8. Repairing and maintaining the warming house. 9. Hiring and scheduling warming house attendants. C. Fitness Center In accordance with Paragraphs 5.A and 5.B, the City shall be responsible for managing the Fitness Center and Studio located in the Recreational Facility, and for maintaining the fitness equipment, each at the City’s sole cost and expense: D. Scheduling. The City shall be responsible for scheduling the following: 1. Recreational Facility gymnasium, meeting rooms, fitness center and studio. 2. Outdoor ball fields, soccer fields, ice rinks, and tennis and pickle ball courts. 10. BUDGETS. Each party will be responsible for maintaining a separate budget for their respective facility and property. 11. INSURANCE. A. The City shall maintain general liability insurance protecting it from claims for damages for bodily injury, including sickness or disease, death, and for care and loss of services as well as from claims for property damage, including loss of use which may arise from operations under this Agreement whether operations are by the City or anyone directly employed by the City. Insurance minimum limits are as follows: $2,000,000 -- per occurrence. $2,000,000 – annual aggregate The City shall name the District as an additional insured on the general liability insurance policy. B. The District shall maintain general liability insurance with protecting it from claims for damages for bodily injury, including sickness or disease, death, and for care and loss of services as well as from claims for property damage, including loss of use which may arise from operations under this Agreement whether operations are by the District or anyone directly employed by the District. Insurance minimum limits are as follows: $2,000,000 -- per occurrence. DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 9 220659v10 $2,000,000 – annual aggregate The District shall name the City as an additional insured on the general liability insurance policy. C. City and District agree that during the term of this Agreement, the District will purchase and continue in force, in the names of District and City, fire, boiler (if applicable) and extended coverage insurance on the Joint Facility situated on the District Property for the full replacement value thereof. City shall be responsible for payment of a percentage share of all insurance premiums within thirty (30) days of receiving the invoice for the same. The City’s share of insurance premiums shall be a percent amount equal to the City Share. D. District and City hereby grant to each other on behalf of any insurer providing fire and extended coverage to either of them covering the Joint Facility, improvements thereon or contents thereof, a waiver of any right of subrogation any such insurer of one party may acquire against the other by virtue of payment of any loss under such insurance, such waiver to be effective so long as each is empowered to grant such waiver under the terms of its insurance policy or policies involved without payment of additional premiums. Such waiver shall stand mutually terminated as of the date either District or City ceases to be so empowered. Neither party shall have any interest in the proceeds of insurance received by the other party. E. Each party shall furnish the other party a certificate of insurance documenting the required coverage. F. Nothing herein shall be deemed to waive any statutory limits of liability granted to the Parties. G. To the full extent permitted by law, actions by the parties pursuant to this Agreement are intended to be and shall be construed as a “cooperative activity” and it is the intent of the parties that they shall be deemed a “single governmental unit” for the purposes of liability, all as set forth in Minnesota Statutes, Section 471.59, subd. la(a); provided further that for purposes of that statute, each party to this Agreement expressly declines responsibility for the acts or omissions of the other party. 12. SUPERVISION/INDEMNIFICATION. A. Supervision. Each party shall be responsible for reasonable supervisions of its own users of the School Facility, Recreation Facility, District Property and City Property. The primary responsibility for any claims for damages or injuries growing out of any accident or occurring during the use of the foregoing shall be borne by the party having responsibility for the supervision of the relevant facility or property at the time of such accident or occurrence. B. City Indemnifies District: The City hereby indemnifies and holds the District harmless from and against any and all claims, demands, liabilities, and expenses, including attorney’s fees, arising from the City’s use of the Joint Facility, District Property, or City Property or from any act permitted, or any omission to act, in or about the Joint Facility, District Property, or City Property by the City or its agents, employees, invitees, customers or contractors, or from any breach or default by the City of this Agreement, except to the extent caused by the negligence or willful misconduct of District or District’s agents, employees, invitees, customers or contractors. In the event any action or proceeding shall be brought against the District by reason of any such claim, the City shall defend the same at the City’s expense. C. District Indemnifies City: The District 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 DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 10 220659v10 District’s use of the Joint Facility, District Property, or City Property or from any act permitted, or any omission to act, in or about the Joint Facility, District Property, or City Property by the District or its agents, employees, invitees, customers or contractors, or from any breach or default by the District of this Agreement, except to the extent caused by the negligence or willful misconduct of the City or the City’s agents, employees, invitees, customers or contractors. In the event any action or proceeding shall be brought against the City by reason of any such claim, the District shall defend the same at the District’s expense. D. Notwithstanding the above, the District and the City shall release each other from all claims to the extent covered or required hereunder to be covered by insurance. E. To the fullest extent permitted by law, actions by the parties pursuant to this Agreement are intended to be and shall be construed as a “joint venture” or “cooperative activity,” for the purposes of liability, all as set forth in Minn. Stat. 471.59, subd. 1a; provided further that each party also specifically intends that the single tort cap limits specified for “cooperative agreements” under Minn. Stat. Section 471.59, subd. 1a, shall apply to this Agreement and to the activities of the parties hereunder. The statutory limits for the parties may not be added together or stacked to increase the maximum amount of liability for either party. The parties to this Agreement are not liable for the acts or omissions of the other party to this Agreement, except to the extent that they have agreed in writing to be responsible for the acts or omissions of the other party. 13. IMPAIRMENT OF USE. A. In the event of any damage to the Recreation Facility during the term of this Agreement by fire or other casualty, District and City agree that the Recreation Facility shall be repaired and restored with reasonable dispatch. District’s obligation for the cost repairs under this paragraph shall be limited to the amount of insurance proceeds available to District allocated to the damage to the Recreation Facility. In the event of damage to the Recreation Facility due to fire or other casualty, District shall not be responsible for requiring or restoring any improvements, personal property or machinery of City. B. In the event of damage to the School Facility during the term of this Agreement by fire or other casualty, District agrees to rebuild or repair such damage to the School Facility with reasonable dispatch, provided such cost of repairs are limited to the amount of insurance proceeds available to District which are allocated to the School Facility damages. 14. SUBLEASE, ASSIGNMENT OR TRANSFER. A. The District or City may not, voluntarily or by operation of law, assign, mortgage, pledge, lease, sublease or otherwise transfer (“transfer”) this Agreement, the Recreation Facility or the School Facility, or any interest held by either party in the Joint Facility, or the District Property, except as provided under Paragraph 7.B or except as part of a lease or other financing approved by the governing bodies of the District and City whereby the property is pledged as security for the financing, the approval of such financing to be considered approval of the transfer hereunder. B. If either party desires to transfer its interest in the Joint Facility to a third party other than as provided in Paragraph 7.A, such party shall so notify the other party in writing at least one (1) year prior to the proposed effective date of the transfer, or sooner if acceptable to the non-transferring party. For a period of one hundred eighty (180) days following receipt of notice of a proposed transfer, the non- transferring party shall have the option to purchase the transferring party’s interest. The purchase price shall be determined by City and District. The purchase price for the Recreation Facility shall be the percentage amount equal to the City Share of the fair market value of the Joint Facility. Said market value DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 11 220659v10 shall be for the improvement only and shall not include any consideration for the District Property. The purchase price for the School Facility shall be the percentage amount equal to the District Share of the fair market value of the Joint Facility. For purposes of a transfer by the District, the sale shall include the District Property and the sale price shall be the fair market value of the District Property plus a percentage amount equal to the District Share of the fair market value of the Joint Facility. In the event District and City cannot agree on a purchase price for either party’s interest, the issue of purchase price shall be determined by arbitration as provided for in this Agreement. If the option to purchase is exercised by either party, the purchase price shall be due and payable as of the effective date of the proposed transfer occasioning the option to purchase. In the event the non-transferring party elects not to purchase the non- transferring party’s interest, the transferring party shall provide the other party with a copy of the proposed transfer agreement, financial information, bank references and financial statements of the proposed transferee and such further information as the non-transferring party deems necessary concerning the proposed transfer. Within ninety (90) days after non-transferring party’s receipt of all required information concerning the proposed transfer, and the satisfaction of all of the conditions specified above, the non-transferring party shall have the following options: (i) To consent to the proposed transfer; or (ii) To submit objections to the transfer to arbitration. The determination by the arbitrator shall be based upon whether the terms of the proposed transfer would be inconsistent with the non-transferring party’s use of the Joint Facility. The arbitrator may further impose such conditions upon transferee as may be necessary to protect the interests of the non-transferring party under this Agreement. C. In the event of a transfer, each party agrees to execute the appropriate agreement(s) to allow (i) the transferee to continue the transferor’s use of its respective facility and (ii) the non-transferring party to continue the non-transferring party’s use of its respective facility, in each case, based on terms substantially similar to the terms of this Agreement, except as otherwise agreed to by the parties and the transferee. 15. REMOVAL OF EQUIPMENT. All alterations, additions, improvements and fixtures which may be made or installed by either of the parties upon the Recreation Facility and which are in any manner attached to the floors, walls or ceilings shall become the property of the District at the termination of this Agreement and shall remain upon and be surrendered with the Recreation Facility. Provided, City may remove fixtures whether or not attached to the floor, wall or ceilings, as long as the following conditions are satisfied: (i) Such fixtures are removed within ten (10) days after the end of the lease term; (ii) Such removal will not cause permanent damage to the Recreation Facility; (iii) The Recreation Facility is restored by City at its expense to the condition in which it was before such fixtures were installed. 16. DEFAULT. All rights and remedies of District and City herein enumerated shall be cumulative and none shall exclude any other right or remedy allowed by law. The following events shall be considered a default of this Agreement: (a) That District or City shall fail, neglect or refuse to pay any monies due pursuant to this Agreement when and as the same shall become due and payable under the terms hereof; DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 12 220659v10 (b) Either party shall default, fail, neglect or refuse to keep and perform any of the other covenants, conditions, stipulations or agreements agreed to be kept and performed by the respective party, and in the event such default shall continue for a period of more than thirty (30) days after notice thereof in writing given to the defaulting party by the non-defaulting party. Provided, however, that if the cause for giving such notice involves the making of repairs or other matters reasonably requires a longer period of time than the period of such notice, the party shall be deemed to have complied with such notice so long as it has commenced to comply with said notice within the period set forth in the notice and is diligently prosecuting compliance with said notice, or has taken proper steps or proceedings under the circumstances to prevent the seizure, destruction, alteration or other interference with Recreation Facility by reason of non-compliance with the requirements of any law or ordinance or with the rules, regulations or directions of any governmental authority as the case may be. 17. REMEDIES UPON DEFAULT. The non-defaulting party may, at any time after such default or violation of condition or covenant, pursue any remedies available to it at law or in equity including, but not limited to, specific performance and damages. Furthermore, without limiting the generality of the foregoing, upon the occurrence of any material default or violation which is not cured by the defaulting party within 120-days after notice thereof from the non-defaulting party, then the non- defaulting party may terminate this Agreement by providing the defaulting party with a notice of termination giving the defaulting party 60 additional days to cure such material default or violation, and if such material default or violation is not cured to the reasonable satisfaction of non-defaulting party within such 60-day period, then this Agreement shall terminate upon the expiration of such 60-day period. 18. ARBITRATION. Any dispute arising out of this Agreement shall be submitted to binding arbitration through the American Arbitration Association. Specific references to the availability of arbitration set forth in this Agreement shall not be construed to limit the right of either party to submit any disputes arising under this Agreement to binding arbitration. Such arbitration shall be conducted in accordance with the Rules for Commercial Arbitration. However, notwithstanding anything in the Rules to the contrary, disputes involving any amount less than Fifty Thousand Dollars ($50,000.00) shall be submitted to a single arbitrator. 19. WAIVER OF CLAIMS. All property belonging to City or any occupant of the Recreation Facility shall be there at the risk of City or such other person only, and District shall not be liable for any damage thereto and City waives all claims against District for damages to persons or property sustained by City or any occupant of the Recreation Facility. 20. HAZARDOUS MATERIALS. A. Hazardous substance. As used herein, “Hazardous Substance” shall mean any substance, element, compound, solution, mixture or combination thereof which because of its quantity, concentration or physical, chemical or infectious characteristics presents, may present or could present danger or potential danger for damage, injury or illness to health, welfare or to the environment, including, but not limited to: (i). those substances which are inherently or potentially radioactive , explosive, ignitable, corrosive , reactive , carcinogenic or toxic, (ii) the following: asbestos, urea formaldehyde, polychlorinated biphenyls, nuclear fuel or materials, chemical waste, radioactive materials, known carcinogens and petroleum products, .and (iii) other substances or materials which are defined as hazardous substances or which are included under or regulated by any local, state or federal law, rule or regulation pertaining to environ- mental regulation, contamination or cleanup, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Water Act, 33 U.S.C. § 1321 et seq.; and the Clean Air Act, 42 U.S.C. § 7401 et DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 13 220659v10 seq.; or any other federal, state, local or other governmental statute, regulation, law or ordinance related to pollution or the release into the environment or disposal of solid or hazardous waste or hazardous substances, all as the same may be amended from time to time. B. City’s Responsibility. City hereby covenants, represents and warrants to District that at all times during the term of this Agreement, City shall not manufacture, process, distribute, use, produce, treat, store, dispose or allow to be present any Hazardous Substance in or about the Recreation Facility, other than those needed to operate the recreational facility. 21. RIGHT TO INSPECT. Following reasonable notice from the District to the City, the District and its agents shall have reasonable access to the Recreation Facility during all reasonable hours for the purpose of examining the same and to ascertain if they are in good repair. 22. NOTICE. All notices and requests to the District or the City which may be given or which are required to be given hereunder shall be sent by United States Mail, postage prepaid, certified with return receipt requested as follows: IF TO DISTRICT: Independent School District No. 112 11 Peavey Road Chaska, MN 55318 Attention: Finance Director IF TO CITY: City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Attention: City Manager All notices to the Committee shall be provided by electronic mail to all six of the current members of the Committee at once. 23. WAIVER. One or more waivers of any covenant, term or condition of this Agreement by either party shall not be construed by the other party as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval of either party to or of any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any similar act. 24. MODIFICATION. Any modification of this Agreement shall be binding only if evidenced in a writing signed by the City and the District. 25. SAVINGS CLAUSE. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity of any other provision. 26. TERMINATION OF LEASE. The Lease is hereby terminated. IN WITNESS WHEREOF, the District and the City have executed this Agreement by the signatures below and have approved this Agreement by their respective governing bodies. [Remainder of page intentionally left blank] [Signature pages to follow] DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 [Signature Page to Joint Powers Agreement] 220659v10 INDEPENDENT SCHOOL DISTRICT NO. 112 BY: _________________________________________ Its: Chair BY: _________________________________________ Its: Clerk DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 [Signature Page to Joint Powers Agreement] 220659v10 CITY OF CHANHASSEN BY: _________________________________________ Elise Ryan, Mayor BY: _________________________________________ Laurie Hokkanen, City Manager DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 [Signature Page to Joint Powers Agreement] 220659v10 EXHIBIT A Diagrams of Joint Facility, District Property, and City Property DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223 W a te rle a fL n W P r a iri e F l o we r Bl vdBlueb o n n et Blvd B lu e S a g e L n WButtercupCtW 7 8 t h S t Ladysl ipper Ln Hwy 5 Timberwood Dr Coulter Blvd ST15 SA5SA5 Galpin BlvdGH117 Document Path: K:\Departments\Parks\Rec Center\Rec Center Location\Rec Center Location.aprxDate Created: 5/18/2022 Created By: City of Chanhassen - Engineering Department µ0 0.04 Mile 0 230 Feet Rec Center / Bluff Creek Elementary (ISD 112) City of Chanhassen Legend City of Chanhassen Rec Center Bluff Creek Elementary (ISD 112) Parcel Boundaries District Property City Property School Parking Lot City Parking Lot DocuSign Envelope ID: 716C01D1-A60E-46F7-A7DA-6E7159B03223