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HomeMy WebLinkAbout9.a. Joint Powers Agreement with City of Inver Grove Heights - Ice Rink EXECUTIVE SUMMARY City Council City Council Regular Meeting: February 5, 2018 AGENDA ITEM: Joint Powers Agreement with City of Inver Grove Heights - Ice Rink AGENDA SECTION: New Business PREPARED BY: Dan Schultz, Parks and Recreation Director AGENDA NO. 9.a. ATTACHMENTS: Proposed Agreement APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve the City of Rosemount entering into a Joint Powers Agreement Between the City of Inver Grove Heights and the City of Rosemount Relating to the Veterans Memorial Community Center West Rink Improvement Project and to authorize the necessary signatures. ISSUE For several months Rosemount City staff has been talking with staff from the City of Inver Grove Heights regarding an opportunity for the Rosemount Area Hockey Association (RAHA) to get more ice time at the Inver Grove Heights Community Center (IGHCC). RAHA currently uses approximately 200 – 225 hours of ice at the IGHCC. Inver Grove Heights is offering a chance for RAHA to get a total of 550 peak hours of ice at the IGHCC from November 1 through February 28 on an annual basis. In return for getting the additional ice at IGHCC, the City of Inver Grove Heights is asking both the City of Rosemount and RAHA to help pay for repairs to their west rink. The proposed west rink improvement project would include a new rink floor, supply header, electrical, dasher board improvements, and a new ice resurfacer, design fees and contingency. The engineers estimate to make the necessary repairs to the west rink at the IGHCC approximately $1,011,000. Based on what the City of Inver Grove Heights paid for the improvements to the east rink, staff is expecting the cost to be lower and hopefully closer to $860,000. The cost would be split between the City of Inver Grove Heights and the City of Rosemount, with RAHA reimbursing the City of Rosemount one half of the portion that the City of Rosemount will be responsible for. The City of Rosemount and RAHA would not be responsible for any additional operating costs or capital improvements to the IGHCC. Staff has met with the RAHA Board on several occasions this past year and they have voted in favor of moving forward to support this partnership. The City Attorney is currently working on an agreement between the City of Rosemount and RAHA that will outline RAHA’s plans of paying for half of the City’s costs for the joint powers agreement. BACKGROUND Following the failed referendum in 2016 that included a new indoor ice rink, Rosemount Parks and Recreation Department staff were contacted by staff from the City of Inver Grove Heights about an opportunity for RAHA to secure additional ice at the IGHCC. At the time of the call both rinks at the IGHCC were in need of major repairs. The east rink’s repairs were needed immediately and were completed in the summer of 2017. The repairs for the west rink are expected to be required in the next year or two. The staff at Inver Grove Heights asked if the City of Rosemount and RAHA are interested in helping with the cost of the repairs on the west rink in return for more ice time than RAHA currently using at the IGHCC. During the time period of November 1, 2016 – February 28, 2017, RAHA used approximately 200 hours of ice at the IGHCC. Staff at Inver Grove Heights has indicated that they would be able to offer a total of 550 peak hours at the west rink if the City of Rosemount and RAHA chose to partner with them on the repairs to the west rink. The hours being offered would include both weeknight and weekend hours. To maximize the amount of ice RAHA would have available to them it was suggested that the ice resurfacing be performed in ten minutes versus fifteen minutes. The shorter resurfacing would allow for more rentable ice. This would require a second ice resurfacer be purchased for the west rink ($145,000 for a new machine). Should the City and RAHA choose to partner on the improvements, RAHA would still need to pay an hourly fee for the use of the ice. This topic was shared with the City Council at the Council work session in March of 2017 and was also part of the budget discussion on August 7, 2017. SUMMARY Staff is proposing that the City Council should consider entering into a 10-year joint powers agreement with the City of Inver Grove Heights to assist them in paying for their west rink improvements in return for RAHA getting more ice time at the IGHCC. By entering into this 10-year agreement, staff feels that this would allow the City several years to continue working on a plan to meet our future ice needs. RECOMMENDATION Staff is recommending the City Council consider entering into the attached Joint Powers Agreement with the City of Inver Grove Heights relating to the Veterans Memorial Community Center West Rink Improvement Project. -1- JOINT POWERS AGREEMENT BETWEEN THE CITY OF INVER GROVE HEIGHTS AND THE CITY OF ROSEMOUNT RELATING TO THE VETERANS MEMORIAL COMMUNITY CENTER WEST ICE RINK IMPROVEMENT PROJECT THIS JOINT POWERS AGREEMENT BETWEEN THE CITY OF INVER GROVE HEIGHTS AND THE CITY OF ROSEMOUNT RELATING TO THE VETERANS MEMORIAL COMMUNITY CENTER WEST ICE RINK IMPROVEMENT PROJECT, ("Agreement") is made and entered into as of the 12th day of February, 2018, by and between the City of Inver Grove Heights ("IGH"), a Minnesota municipal corporation, and the City of Rosemount ("Rosemount"), a Minnesota municipal corporation (each sometimes hereinafter called "party" and both sometimes collectively called "parties"). WITNESSETH: WHEREAS, IGH and Rosemount are desirous of entering into an agreement pursuant to the authority of the Joint Exercise of Powers Act (Minnesota Statutes, § 471.59), and pursuant to the authority granted to municipalities to operate programs of public recreation, and to equip and maintain land, buildings and other recreational facilities, and to expend funds for the operation of such programs under the authority of Minnesota Statutes, § 471.15 to § 471.19; and WHEREAS, IGH’s Veterans Memorial Community Center was constructed with an East Ice Rink and a West Ice Rink which are recreational ice facilities capable of supporting the ice recreational programs of IGH as well as partially supporting the ice recreational programs of Rosemount provided that both sheets of ice function properly; and WHEREAS, the West Ice Rink needs a major renovation; the project is estimated to cost up to $1,011,000 which would include a new rink floor, dasher board improvements, and an ice resurface vehicle (the “West Ice Rink Improvement Project”); and WHEREAS, Rosemount is willing to assist IGH with the funding of the West Ice Rink Improvement Project to secure the availability of 550 hours of peak ice time each year for purchase and/or assignment to a “Rosemount Area Ice Recreational Provider” (hereinafter defined) over a ten (10) year period to support Rosemount’s ice recreational programs during the peak ice times from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm; and WHEREAS, Rosemount is willing to pay for 69% of the West Ice Rink Improvement Project costs plus interest thereon at the rate of 6.326% on the unpaid Rosemount obligation balance. In addition Rosemount shall also pay for ice time reserved under this Agreement. WHEREAS, the joint improvement and use of the Veterans Memorial Community Center facility to support the IGH and Rosemount ice recreation programs will result in significant -2- financial savings for both communities. NOW, THEREFORE, in consideration of above recitals, and the mutual promises and covenants of each to the other contained in this Agreement and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do covenant and agree as follows: ARTICLE 1 THE AGREEMENT Section 1.01. Purposes. The purpose of this Agreement is to define the rights and obligations of IGH and Rosemount with respect to the funding of the West Ice Rink Improvement Project Costs as well as the availability of peak ice time upon the West and/or East Ice Rinks at the Veterans Memorial Community Center facility over a ten (10) year period. Section 1.02. Cooperation. IGH and Rosemount shall cooperate and use their best efforts to ensure the most expeditious implementation of the various provisions of this Agreement. The parties agree in good faith to undertake resolution of disputes, if any, in an equitable and timely manner. Section 1.04. Term. The term of this Agreement shall commence on the date first written above and shall terminate upon both of the following events occurring: a) Rosemount’s completion of the ten (10) years of payments pursuant to the Payment Schedule attached hereto as Exhibit B for the sixty-nine (69%) funding of the West Ice Rink Improvement Project Costs plus interest thereon at the rate of 6.326% on the unpaid Rosemount obligation balance; and, b) upon the expiration of the ten (10) years of availability of 550 hours of peak ice time for purchase and/or assignment to a Rosemount Area Ice Recreational Provider during the peak ice times from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm. Section 1.05. Recitals. The above recitals are true and correct as of the date hereof and constitute a part of this Agreement. ARTICLE 2 DEFINITIONS Section 2.01. Definitions. In this Agreement the following terms shall have the following meanings unless the context requires otherwise: (a) Agreement: this Agreement, as it may be amended, supplemented, or restated from time to time. (b) Change Order: a written order to the Contractor signed by the IGH Representative on behalf of the parties authorizing a change in the work included within the Contract Documents and/or an adjustment in the price and/or an adjustment in the -3- construction schedule, issued after execution of the contract for the construction of the West Ice Rink Improvement Project. (c) Contract Documents: drawings; specifications; general and special conditions; addenda, if any; Change Orders; and the construction contract for the West Ice Rink Improvement Project. (d) Contractor: the person or entity which is awarded the contract for the construction of the West Ice Rink Improvement Project. (e) IGH: the City of Inver Grove Heights, a Minnesota municipal corporation. (f) IGH Administrative Costs for the West Ice Rink Improvement Project: all consultant costs incurred by IGH for and associated with the design, contract drafting, bidding, and contract award, of the West Ice Rink Improvement Project. (g) IGH Representative: the IGH City Administrator, or his designee. (h) Rosemount: the City of Rosemount, a Minnesota municipal corporation. (i) Rosemount Area Ice Recreational Provider(s): a Rosemount area hockey association, a Rosemount area figure skating association, a Rosemount area school district, and/or a Rosemount citizen. (j) Rosemount Representative: the Rosemount City Administrator, or his designee. (k) West Ice Rink Improvement Project: an ice rink and equipment improvement project currently estimated to cost up to $1,011,000 which includes: a new rink floor, new dasher boards, an ice resurface vehicle, and consultant costs. (l) West Ice Rink Improvement Project Construction Costs: the amount of the West Ice Rink Improvement Project construction contract award to the low bidding Contractor as may be increased or decreased by Change Orders approved during the construction of the West Ice Rink Improvement Project. (m) West Ice Rink Improvement Project Costs: the total/combined amount of the West Ice Rink Improvement Project Construction Costs, the IGH Administrative Costs for the West Ice Rink Improvement Project, the cost of an ice resurface vehicle, and also including consultant engineering fees, commissioning testing and other construction testing costs, and inspections conducted by the consultant engineers. (n) Uncontrollable Circumstances: the occurrence or non-occurrence of acts or events beyond the reasonable control of the party relying thereon, and not the result of willful or negligent action or inaction of the party claiming the event as an -4- Uncontrollable Circumstance, that materially and adversely affects the performance of the party claiming the event as an Uncontrollable Circumstance including but not limited to the following: (i) Acts of God, including, but not limited to floods, ice storms, blizzards, tornadoes, landslides, lighting and earthquakes (but not including reasonably anticipated weather conditions for the geographic area), riots, insurrections, war or civil disorder affecting the performance of work, blockades, power or other utility failure, and fires or explosions. (ii) The adoption of or change in any federal, state, or local laws, rules, regulations, ordinances, permits, or licenses, or changes in the interpretation of such laws, rules, regulations, ordinances, permits, or licenses by a court or public agency having appropriate jurisdiction after the date of the execution of this Agreement. (iii) A suspension, termination, interruption, denial, or failure of renewal of any permit, license, consent, authorization, or approval essential to the construction of the West Ice Rink Improvement Project. (iv) Orders and/or judgments of any federal, state, or local court, administrative agency, or governmental body, provided, however, that the contesting in good faith by such party of any such order and/or judgment shall not constitute or be construed to constitute a willful or negligent action or inaction of such party. (v) Strikes or other such labor disputes shall not be considered an Uncontrollable Circumstance, unless such strike or labor dispute involves persons with whom the parties or either of them have no employment relationship and for whom, despite using best efforts, the parties or either of them cannot obtain substitute performance. ARTICLE 3 CONSTRUCTION Section 3.01. Contract Bid. IGH shall prepare Contract Documents for the construction of the West Ice Rink Improvement Project. The Contract Documents shall be approved in writing by the IGH Representative prior to the solicitation of bids pursuant to the requirements of the Uniform Municipal Contracting Law (Minnesota Statutes, § 471.345). Section 3.02. Contract Award. IGH shall bid the construction of the West Ice Rink Improvement Project pursuant to the requirements of the Uniform Municipal Contracting Law (Minnesota Statutes, § 471.345). Thereafter, the bids for the construction of the West Ice Rink Improvement Project shall be jointly reviewed, rejected, re-bid or approved (in writing) by both the IGH Representative and by the Rosemount Representative prior to the award of the West Ice Rink -5- Improvement Project construction contract to the Contractor. Except for intervening Uncontrollable Circumstances, it is the intent of the parties to award the West Ice Rink Improvement Project construction contract to the lowest responsible Contractor during the first six (6) months of 2018. Section 3.03. Construction Administration. IGH shall perform appropriate construction administration services, including, without limitation, representation of the parties hereto with regard to activities of the Contractor at the construction site, periodic observations of the work at the construction site, initiate appropriate action to present or have corrected as appropriate, any work observed not to be in accordance with the Contract Documents, process Change Orders, and process Contractor pay requests. IGH shall not be responsible for the acts or omissions of the Contractor nor shall IGH be responsible for construction means, methods, techniques, sequences, procedures or safety precautions at the construction site. Section 3.04. Change Orders. The IGH Representative shall review, process, and approve or deny Change Orders less than $10,000 each; and, up to $50,000 of multiple Change Orders during the construction of the West Ice Rink Improvement Project. If a single Change Order is more than $10,000, or if the amount of approved Changed Orders is going to cumulatively exceed $50,000 during the construction of the West Ice Rink Improvement Project, then any subsequent Change Orders shall be jointly reviewed, processed, and approved or denied in writing by both the IGH Representative and by the Rosemount Representative. Section 3.05. Ice Resurface Vehicle. IGH shall prepare and bid the contract for the purchase of the ice resurface vehicle pursuant to the requirements of the Uniform Municipal Contracting Law (Minnesota Statutes, § 471.345). Thereafter, the bids for the ice resurface vehicle shall be reviewed, rejected, re-bid or approved (in writing) by the IGH Representative prior to the award of the contract for the purchase of the ice resurface vehicle. The ice resurface vehicle shall be owned, operated and maintained by IGH. Section 3.06. Termination for failure to award the West Ice Rink Improvement Project Construction Contract. Notwithstanding anything to the contrary contained in this Agreement, if the parties do not agree to award a construction contract for the West Ice Rink Improvement Project pursuant to Section 3.02 above, then this Agreement shall terminate and the parties agree that IGH shall pay 10% of the West Ice Rink Improvement Project Costs expended (including IGH funds expended or contracted to be expended for the purchase of the ice resurface vehicle pursuant to Section 3.05 above) and Rosemount shall pay 90% of the West Ice Rink Improvement Project Costs expended (including IGH funds expended or contracted to be expended for the purchase of the ice resurface vehicle pursuant to Section 3.05 above). Rosemount agrees to pay IGH 90% of the West Ice Rink Improvement Project Costs expended (including IGH funds expended or contracted to be expended for the purchase of the ice resurface vehicle pursuant to Section 3.05 above) within thirty (30) days of Rosemount receipt of an invoice from IGH detailing the West Ice Rink Improvement Project Costs expended (including IGH funds expended or contracted to be expended for the purchase of the ice resurface vehicle pursuant to Section 3.05 above) prior to termination of this Agreement for a failure to award a construction contract for the West Ice Rink Improvement Project pursuant to Section 3.02 above. -6- ARTICLE 4 WEST ICE RINK IMPROVEMENT PROJECT CONSRUCTION COSTS Section 4.01. Allocation. IGH and Rosemount shall pay the following: (a) IGH shall pay 31% of the West Ice Rink Improvement Project Costs. (b) Rosemount shall pay 69% of the West Ice Rink Improvement Project Costs, plus interest at the annual rate of 6.326% on the unpaid balance of the Rosemount obligation in the manner set forth in Section 4.03 of this Agreement and in the manner set forth on Exhibit B attached hereto. IGH shall also pay for construction administration, supervision, oversight and inspection provided by IGH employees. Section 4.02. Payments to Contractor. IGH shall make progress payments to the Contractor and IGH shall make the final payment to the Contractor in accordance with the Contract Documents. Rosemount shall have reasonable access to all IGH records, data and other information concerning the West Ice Rink Improvement Project Costs, including Contractor pay requests/billings. Section 4.03. Payments by Rosemount to IGH. IGH shall fund and make initial payment of the West Ice Rink Improvement Project Costs. At any time following substantial completion of the construction of the West Ice Rink Improvement Project, or any time before or after final payment to the Contractor in accordance with the Contract Documents, IGH shall create and deliver to the Rosemount Representative a “Certificate of Final West Ice Rink Improvement Project Costs.” Rosemount shall make its first payment to IGH pursuant to the payment schedule attached as Exhibit B within thirty (30) days of Rosemount’s receipt of the Certificate of Final West Ice Rink Improvement Project Costs. On October 1st of each year thereafter, Rosemount shall make nine (9) more payments to IGH pursuant to the payment schedule such that Rosemount has paid sixty-nine 69% of the of the amount of the Certificate of Final West Ice Rink Improvement Project Costs plus interest of 6.326% on the unpaid balance of the Rosemount obligation over a ten (10) year period. ARTICLE 5 VETERANS MEMORIAL COMMUNITY CENTER ICE RINK FACILITY USE Section 5.01. Facility Administration. IGH shall be responsible for the operation, administration, and maintenance of the Veterans Memorial Community Center facility (including the West Ice Rink) during and following the construction of the West Ice Rink Improvement Project for at least ten (10) years. In addition, IGH shall be responsible for prosecuting any West Ice Rink Improvement Project warranty claims against the Contractor in accordance with the Contract Documents as agent for Rosemount and on its own behalf. Section 5.02. Ice Time Rates. IGH customarily establishes annual uniform ice time rates -7- in December of the preceding year that are reflected in IGH’s Fee Schedule and which shall be applicable to Rosemount as well as to any Rosemount Area Ice Recreational Provider/assignee of the peak ice time availability provided to Rosemount pursuant to this Agreement. IGH will set rates pursuant to the methodology set forth on Exhibit A attached to this Agreement. Rosemount, as well as Rosemount Area Ice Recreational Provider/assignee of the peak ice time availability provided to Rosemount pursuant to this Agreement, shall promptly pay IGH the ice time invoices billed by IGH; and, in all events, ice time invoices shall be paid within forty (40) days following receipt of ice time invoices. IGH and Rosemount acknowledge and agree that all ice rate revenue shall be paid to IGH and used by IGH for the operation and maintenance of the Veterans Memorial Community Center facility. Section 5.03. Peak Ice Time Availability. The parties agree as follows with respect to peak ice time availability: (a) 550 Hours of Peak Ice Time Availability for 10 Years: For a period of ten (10) years beginning on November 1st following the substantial completion of the construction of the West Ice Rink Improvement Project, IGH agrees to make 550 hours of peak ice time available each year for reservation to support Rosemount area ice recreational programs during the peak ice times from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm, and at either the East Ice Rink or the West Ice Rink or a combination thereof. Except for intervening Uncontrollable Circumstances that would delay the availability of the November 1, 2018 through February 28, 2019 season of peak ice times on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm., it is the intent of the parties that the period of ten (10) years of peak ice time availability shall occur as follows: Year 1: November 1, 2018 through February 28, 2019 Year 2: November 1, 2019 through February 28, 2020 Year 3: November 1, 2020 through February 28, 2021 Year 4: November 1, 2021 through February 28, 2022 Year 5: November 1, 2022 through February 28, 2023 Year 6: November 1, 2023 through February 28, 2024 Year 7: November 1, 2024 through February 28, 2025 Year 8: November 1, 2025 through February 28, 2026 Year 9: November 1, 2026 through February 28, 2027 Year 10: November 1, 2027 through February 28, 2028 (b) IGH to Provide Schedule of the 550 Hours of Peak Ice Time Availability to Rosemount by September 15th of Each Year: On or before September 15th of each year, IGH shall provide Rosemount with a schedule of at least 550 hours of peak ice time available for reservation from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm, and at either the East Ice Rink or the West Ice Rink or a -8- combination thereof. Rosemount acknowledges and agrees that IGH does not guarantee the availability of any amount of peak ice time available for reservation on either the East Ice Rink or West Ice Rink at the Veterans Memorial Community Center, and Rosemount acknowledges and agrees that IGH does not guarantee the availability of any amount of peak ice time available for reservation during any certain month, day of the week, and/or time of day during the peak ice times from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm. IGH agrees to use its best efforts to accommodate the scheduling desires each year of Rosemount and/or its assignees (i.e. Rosemount Area Ice Recreational Providers). Rosemount shall assign its hours to users other than a Rosemount Area Ice Recreational Provider. (c) Rosemount to Provide Schedule of the 550 Hours of Peak Ice Time Reservations to IGH by September 30th of Each Year: On or before September 30th of each year, Rosemount shall review and use the schedule of peak ice time availability provided by IGH, work with IGH city staff, and shall provide IGH with Rosemount’s schedule of 550 hours of peak ice time reservations from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm. Rosemount must reserve 550 hours annually. Once the hours are reserved, the obligation to pay for ice time arises and Rosemount, or the Rosemount Area Ice Recreational Provider, must pay for reserved ice time, whether used or not, pursuant to Section 5.02. Rosemount shall not be responsible for the obligations for ice time reserved by a Rosemount Area Ice Recreational Provider. (d) Assignment of Peak Ice Time Availability: IGH agrees that Rosemount may assign (in writing) some or all of the 550 hours of peak ice time availability for reservation (from November 1st through February 28th, on Monday through Friday from 5:00 pm to 10:00 pm, and on Saturdays and Sundays from 7:00 am to 10:00 pm provided by this Agreement) to Rosemount Area Ice Recreational Providers. Rosemount agrees that any written assignment of the peak ice time availability provided by this Agreement to a Rosemount Area Ice Recreational Provider/assignee shall require the Rosemount Area Ice Recreational Provider/assignee to provide IGH with a peak ice time use schedule and shall require the Rosemount Area Ice Recreational Provider/assignee to make reservations of peak ice time on or before September 30th of each year. In addition, Rosemount’s written assignment of the peak ice time availability provided by this Agreement to a Rosemount Area Ice Recreational Provider/assignee shall also require the Rosemount Area Ice Recreational Provider/assignee to make timely payments to IGH for ice time billing invoices processed through Rosemount and/or directly billed by IGH to the Rosemount Area Ice Recreational Provider/assignee; and Rosemount’s written assignment of the peak ice time availability provided by this Agreement to a Rosemount Area Ice Recreational Provider/assignee shall require the Rosemount Area Ice Recreational Provider/assignee to comply with any Veterans -9- Memorial Community Center use regulations. Rosemount agrees to provide IGH with copies of any such written assignments of the peak ice time availability provided by this Agreement to Rosemount Area Ice Recreational Providers/assignees. ARTICLE 6 WARRANTIES Section 6.01. Rosemount Warranties. Rosemount hereby warrants and represents the following: (a) Authority: Rosemount has the unconditional right, power, legal capacity and authority to enter into this Agreement and perform the obligations of this Agreement. (b) No Default: Rosemount is not in default under any lease, contract or agreement to which it is a party or by which it is bound which would affect performance under this Agreement. Rosemount is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment or decree which would prohibit the execution or performance of this Agreement by Rosemount or prohibit any of the transactions provided for in this Agreement. Section 6.02. IGH Warranties. IGH hereby warrants and represents the following: (a) Authority: IGH has the unconditional right, power, legal capacity and authority to enter into this Agreement and perform the obligations of this Agreement. (b) No Default: IGH is not in default under any lease, contract or agreement to which it is a party or by which it is bound which would affect performance under this Agreement. IGH is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment or decree which would prohibit the execution or performance of this Agreement by IGH or prohibit any of the transactions provided for in this Agreement. ARTICLE 7 REMEDIES Section 7.01. Remedies Upon Default. If a party fails to perform one or more of its obligations under this Agreement, the non-defaulting party shall give the defaulting party written notice at the address set forth in this Agreement of the defaulting party’s failure to perform such obligations, and if the defaulting party fails to commence to perform the obligation within five (5) business days and diligently pursue, to completion, the performance of the obligation as quickly as reasonably possible, the defaulting party is in default under this Agreement (hereinafter a “Default”). Upon the occurrence of a Default, the non-defaulting party may avail itself of the following remedies after written notice and a reasonable opportunity to cure: -10- (a) The non-defaulting party may commence a civil action against the defaulting party for the specific enforcement of this Agreement; (b) The non-defaulting party may initiate a civil action against the defaulting party seeking damages, equitable relief or such other relief as the Court may deem appropriate; The defaulting party must pay the non-defaulting party for any and all reasonable costs, including reasonable attorneys’ fees and court costs, the non-defaulting party incurs in connection with the non-defaulting party’s exercise of its rights under this Section. Section 7.02. No Remedy Exclusive. No remedy herein conferred upon or reserved to the non-defaulting party shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under the Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the non-defaulting party to exercise any remedy reserved to it, it shall not be necessary to give notice, other than the notice, if any, required by this Agreement. ARTICLE 8 GENERAL PROVISIONS Section 8.01. Notices. All notices or communications required or permitted pursuant to this Agreement shall be either hand delivered or mailed to IGH and Rosemount, certified mail, return-receipt requested, as the following address: IGH: IGH City Administrator City Hall 8150 Barbara Avenue Inver Grove Heights, MN 55077 Rosemount: Rosemount City Administrator City Hall 2875 - 145th Street Rosemount, MN 55068 Either party may change its address or authorized representative by written notice delivered to the other party pursuant to this Section 8.01. Section 8.02. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original but all of which taken together shall be deemed a single instrument. -11- Section 8.03. Survival of Representations and Warranties. The representations, warranties, covenants, and agreements of the parties under Section 3.06, Section 6.01, and Section 6.02, and the remedies under Section 7.01 and Section 7.02 of either party for the breach of such representations, warranties, covenants, and agreements by the other party shall survive the termination of this Agreement. Section 8.04. Non-Assignability. Except for Rosemount’s ability to assign peak ice time availability pursuant to Article 5 of this Agreement, neither party shall assign an interest in this Agreement nor shall transfer any interest in the same, whether by subcontract, assignment or novation, without the prior written consent of the other party. In all events, Rosemount may not assign its obligations under Sections 4.01, 4.03 and Exhibit B. Section 8.05. Alteration. Any alteration, variation, modification or waiver of the provisions of the Agreement shall be valid only after it has been reduced to writing and duly signed by all parties. Section 8.06. Waiver. The waiver of any of the rights and/or remedies arising under the terms of this Agreement on any one occasion by any party hereto shall not constitute a waiver or any rights and/or remedies in respect to any subsequent breach or default of the terms of this Agreement. The rights and remedies provided or referred to under the terms of this Agreement are cumulative and not mutually exclusive. Section 8.07. Severability. The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause or phrase of this Agreement is for any reason held to be contrary to law, or contrary to any rule or regulation having the force and effect of law, such decision shall not affect the remaining portions of this Agreement. Section 8.08. Interpretation According to Minnesota Law. This Agreement shall be interpreted and construed according to the laws of the State of Minnesota. Section 8.09. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and shall supersede all prior oral or written negotiations. Section 8.10. Final Payment. Before final payment is made by IGH to the Contractor, IGH shall obtain from the Contractor a certificate of compliance from the Commissioner of Revenue certifying that the Contractor and any out-of-state subcontractors have complied with the provisions of Minnesota Statutes, Section 290.92. Section 8.11. Headings. The headings to the various sections of this Agreement are inserted only for convenience of reference and are not intended, nor shall they be construed, to modify, define, limit, or expand the intent of the parties as expressed in this Agreement. Section 8.12. Further Actions. The parties agree to execute such further documents and take such further actions as may reasonably be required or expedient to carry out the provisions and -12- intentions of this Agreement, or any agreement or document relating hereto or entered into in connection herewith. Section 8.13. Parties in Interest. This Agreement shall be binding upon and insure solely to the benefit of the parties hereto and their permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature under or by reason of this Agreement. Section 8.14. Estimates. The parties acknowledge and agree that all of the West Ice Rink Improvement Project cost figures contained in this Agreement are estimates that will modified and better defined upon final design and bidding of the West Ice Rink Improvement Project Costs. Section 8.15. Advertising, Concessions and Storage. The parties acknowledge and agree that this Agreement does not allow or authorize Rosemount or a Rosemount Area Ice Recreational Provider to sell advertising or concessions within IGH ’s Veterans Memorial Community Center facility. The parties agree further that this Agreement does not provide Rosemount or a Rosemount Area Ice Recreational Provider with any storage areas or storage rooms at the Veterans Memorial Community Center facility other than the temporary use of changing rooms by ice skaters during reserved ice times. THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK -13- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written. CITY OF INVER GROVE HEIGHTS Attest: By: By: George Tourville Michelle Tesser Mayor City Clerk Dated: Dated: CITY OF ROSEMOUNT Attest: By: By: Bill Droste Erin Fasbender Mayor City Clerk Dated: Dated: -14- Exhibit A Rate Methodology 1. IGH shall establish a list of communities with facilities similar to the VMCC and survey the peak ice rate fee schedules used by these various communities. 2. The survey data shall then be compiled in a chart showing all the different ranges of cost. 3. If there are any variables in the data which need to be reconciled, then IGH shall do so in good faith. 4. The peak ice rates will then be arithmetically averaged and rounded to the nearest whole dollar upward and will then be referred to as “market rate”. 5. IGH will set the peak ice rates at its discretion between the market rate and no greater than 5% above the market rate on an annual basis. -15- Exhibit B Payment Schedule 1. In the manner set forth below, Rosemount shall pay IGH 69% of the West Rink Improvement Project Costs plus interest of 6.326% on the unpaid Rosemount obligation over a period of 10 years by making ten (10) payments. 2. At any time following substantial completion of the construction of the West Ice Rink Improvement Project, or any time before or after final payment to the Contractor in accordance with the Contract Documents, IGH shall create and deliver to the Rosemount Representative a “Certificate of Final West Ice Rink Improvement Project Costs.” 3. Rosemount is responsible for 69% of the West Rink Improvement Project Costs. 4. Interest on the unpaid balance of the 69% of the West Rink Improvement Project Costs shall begin to accrue from the delivery by IGH of the Certificate of Final West Ice Rink Improvement Project Costs. 5. The interest rate shall be a fixed rate of 6.326% per annum calculated on the basis of the actual number of days elapsed and a 360 day year. 6. Rosemount shall make its first payment to IGH within thirty (30) days of Rosemount’s receipt of the Certificate of Final West Ice Rink Improvement Project Costs. 7. The first payment shall be for $91,000 and shall include principal and interest. 8. All payments shall be applied first to accrued interest and second to principal reduction of the Rosemount obligation. 9. On October 1, 2019 and on October 1 of each year thereafter until October 1, 2027, Rosemount shall make a payment to IGH of $91,000. Such payment shall include principal and interest. 10. On October 1, 2027 (the Maturity Date), the remaining entire unpaid principal balance of the Rosemount obligation shall be due and payable together with any accrued and unpaid interest; on the Maturity Date Rosemount shall pay off all amounts of principal and interest that remain unpaid relating to the Rosemount obligation. 11. In no event shall Rosemount make any prepayment to IGH unless IGH, in writing, agrees to a prepayment.