JOINT POWERS AGREEMENT State Board of Higher Education and Valley City Parks and Recreation TIDS JOINT POWERS AGREEMENT ("Agreement") between the North Dakota State Board of Higher Education ("Board") and Valley City Parks and Recreation ("Park District"). PRELIMINARY STATEMENT The Board is created by Article VIII, Section 6 of the North Dakota Constitution, as the governing board of North Dakota public colleges and universities, including Valley City State University ("VCSU"). Park District is a Parks and Recreation District organized under North Dakota Century Code Chapter 40-49. The parties have authority to enter into a Joint Powers Agreement under North Dakota Century Code Chapter 54-40.3 and Article VII, Section 10 and Article VIII, Section 6 of the North Dakota Constitution. The purpose of this Agreement is to provide for construction of a community wellness center to serve Valley City State University and the Valley City, North Dakota area, and for the management and operation of the same according to terms of this Agreement. THEREFORE, according to North Dalcota Century Code Chapter 54-40.3 and Article VII, Section 10 and Article VIII, Section 6, of the North Dakota Constitution, the parties agree as follows: 1. Purpose. The purpose of this Agreement is to provide for the lease and shared use of land and for the design, planning, construction, improvement, development, funding, maintenance, use, management and operation of a community wellness center located on the VCSU campus. 2. Effective Date and Term. This Agreement shall become effective on the date signed by the last party to sign the Agreement, following required approval by the Attorney General and approval and execution by all parties. This Agreement and any easements granted hereunder shall be for a term of99 years commencing on the date of this Agreement. 3. Land. The Board will make available that land on the VCSU campus more specifically defined by location as shown on the attached Exhibit A (the "Land"). The Board and the Park District will cooperate in surveying the Land if required by any public authority or financing entity. 4. The improvements to be constructed on the Land, and subject to and governed by this Agreement, consist of a community wellness center, parking lots, and related improvements (collectively, the "Facility" or the "Center"). 5. Administration. The general administration of this Agreement shall be under the supervision of the Facility Advisory Committee ("Committee'). The Committee is not an independent entity; it is an administrative entity without separate legal existence from its 1
constituent members. The Committee shall have all construction contracts or other documents approved and executed by the Park District. The Committee's primary responsibility shall be the execution of the terms and conditions of this Agreement. 6. Facility Advisory Committee. a. There is established a Facility Advisory Committee ("Committee") to advise the Park District and provide an opportunity for input from the parties and other interested groups and individuals regarding Facility management and operation. b. The Committee shall meet not less than two (2) times each calendar year. c. The members of the Committee shall include: i. The VCSU President or President's designee; IL The President or designee of the VCSU Student Governing body; 111. The Chair of the VCSU Health and Physical Education Department or Chair's designee; IV. The Park District President or President's designee; v. The Park District Director or Director's designee; vi. One member of the Park District Board vii. One member appointed by the Park District's governing Board to represent community Facility members; vni. One member appointed by the Valley City Economic Development Corporation; IX. One member appointed by the Sheyenne Valley Community Foundation; x. The Chief Executive Officer of Mercy Hospital or CEO's designee; and Each of the above may substitute or replace their respective appointee at any time. It is intended that the Committee shall have not less than the ten (10) members provided above; however, additional members may be appointed pursuant to a supermajority (two-thirds) vote of the Committee. The Committee may select a chair and such officers as it determines necessary. d. Unless otherwise provided, the Committee shall act by majority vote of a quorum of the Committee members. 2
e. At least fifty percent of the Committee members shall be required to be present for a quorum. The Committee may establish additional by-laws and committees, including subcommittees, as appropriate. The Committee may appoint additional members to such sub-committees, including persons who are not members of the Committee. g. The Park District shall provide staff support and supplies and coordinate and schedule Committee meetings. 7. Facility Advisory Committee Powers. Consistent with and subject to the terms of this Agreement and applicable laws, the Committee shall have the following powers and duties: a. To coordinate planning and development of the Facility; b. To solicit bids and award contracts (subject to Park District approval and execution) for the design and construction of the Facility and related improvements, subject to availability of funds, and further provided that improvements must be consistent with the VCSU facilities master plan. The design of all improvements is subject to approval of the VCSU President and Park Board, which approval shall not be unreasonably withheld; c. To solicit and receive (on behalf of the Park District and Facility) grants, donations, contributions and pledges; d. To establish, subject to approval by the Park District, admission fees, membership fees, rental rates, parldng charges and other fees, and adopt rules and guidelines governing usage and distribution of revenue; student fees are subject to approval by the VCSU President; e. To establish a budget on not less than annual basis; f. To regularly consult with and keep informed the parties to this Agreement and other interested groups; and g. To perform other acts consistent with this Agreement necessary to implement the intent of the parties. 8. Park District Powers. Consistent with and subject to terms of this Agreement and applicable laws, the Park District shall have the following powers and duties: a. To be the contracting party and enter into all necessary agreements with entities, including private entities, to provide for the design and construction of the Facility and related improvements; 3
b. Except as otherwise provided herein, to operate, schedule and manage the Facility, and enter into reasonable lease or rental agreements and other contracts required for operation, scheduling and management; c. To operate concessions or enter into concession contracts with other parties. Alcoholic beverages will not be permitted in the Facility or the adjacent parking areas; d. To expend available funds, including Park District funds and funds received from the parties to this Agreement, donations and other sources for improvements, repairs, maintenance, and other purposes consistent with this Agreement; e. To regularly consult with and keep informed the parties to this Agreement and other interested groups; and f. To perform other acts consistent with this Agreement necessary to implement the intent of the parties. 9. Improvements: Financing of Improvements. The Park District and Committee shall be solely responsible to anange for financing the construction and operation of the Facility and related improvements. The Park District has full authority, subject to terms of this Agreement and under North Dakota Century Code chapter 48-02.1 or other applicable law, to enter into necessary agreements, to arrange for such construction, and the parties agree to cooperate as required to facilitate that construction. The Park District and Committee intend to seek the approval of a one-half cent sales tax ("Sales Tax") with $3,000,000, plus interest, of the revenues raised to be allocated towards the construction and operation of the Facility. In addition, it is anticipated that Park District and Committee will investigate and follow up on opportunities for grants and other funding. In the event that adequate financing cannot be obtained, this Agreement may be declared null and void upon a supermajority vote of the Facility Advisory Committee. 10. Title to Improvements. During the term of this Agreement, title to the Facility shall be held by the Park District. Upon termination of this Agreement and absent agreement of the parties to some other arrangement, title to the Facility and related permanent improvements located on Land owned by the Board shall be deemed transferred to the Board. Temporary structures and removable furnishings and equipment of the Park District shall be removed by the Park District. 11. Name and Naming Rights. Subject to the naming rights as provided in this Paragraph 11, the Center shall be named the "Valley City Health, Wellness & Physical Education Center." However, the Committee is authorized to rename the Center, or part or parts of the Center, in exchange for a donation or donations under the terms of a "naming rights" agreement or agreements. 4
12. General Use. The Center shall be operated as a public facility and shall be made available to other public and private entities and individuals. It shall be utilized for college, school and community educational and athletic activities and events, and sporting, recreational and civic events that promote wellness and fitness, provide recreational and sporting opportunities to students and community and surrounding area residents and visitors, promote visitor attraction and economic development, and enhance the quality of life of community and surrounding area residents. 13. Use of Center by VCSU and VCSU Students and Employees. VCSU and the Park District intend to enter into an Operating Agreement or similar written agreement governing the use of the Center by VCSU students and employees. Because VCSU will house its Health and Physical Education Department in the Wellness Center, the Operating Agreement must include terms that guarantee VCSU: a. Designated areas of said building shall be for use by VCSU including rooms for classrooms, laboratories, offices and storage. Said designated areas shall be managed by VCSU and any other use by any party shall only be upon the approval ofvcsu; b. The ability to schedule use of non-exclusive areas or rooms for academic offerings in agreement with the Park District; c. The ability to provide VCSU faculty, staff, or students with universal access to to its designated areas; d. The continued ability to secure education records in compliance with the Federal Education Records Protection Act; and e. Any other rights established by the Committee. Furthermore, the Operating Agreement shall outline terms by which VCSU students may use the Facility. As provided under Board and VCSU policies, VCSU intends to provide notice and an opportunity for students to provide input regarding the establishment of a student fee to generate revenues to support operation of the Center and request Board approval of the fee as may be required by law or Board policy. Subject to student input and Board approval, if required, VCSU intends to make periodic payments to Park District of revenues generated by the student fee approved for this purpose. In exchange for VCSU's payment ofrevenues generated by the student fee, VCSU students shall have the right to use the Center to at least the same extent as general members. The Board delegates to the VCSU President authority to negotiate and approve terms of the Operating Agreement including adjustment to student fees and students' rights to use the Center. 14. Liability and Insurance. Each party is responsible for its own acts and agrees to assume its own liability for those acts and consequences. The liability of the Board and VCSU is governed by North Dakota Century Code chapter 32-12.2 and liability of the Park District 5
is govemed by North Dakota Century Code chapter 32-12.1. The Park District shall procure and maintain liability insurance covering the Facility and the Park District's and the Committee's management and operation of the Facility and adopt and enforce reasonable rules regarding liability insurance for users. The Park District shall cooperate with VCSU and ensure that the Park District or VCSU obtains property and casualty coverage as provided by state law for Facility property. 15. Reserve Fund. A Reserve Fund shall be established by the Facility Advisory Committee for the pmpose of funding major repairs or improvements. 16. Miscellaneous. a. This Agreement is personal to the parties and neither the rights nor the obligations of either party may be assigned without the written consent of the other. This Agreement contains the parties' entire agreement and may not be varied except by an instrument in writing signed by the parties. b. This Agreement shall be governed and construed under the laws of the State of North Dakota. NORTH DAKOTA STATE BOARD OF HIGHER EDUCATION Dated this day, 2014. By: ~ Its:------------- Its:------------- VALLEY CITY PARKS AND RECREATION DISTRICT Dated this day, 2014. By: By: ~ Its:------------- Its: ------------- Approved as to form and legal sufficiency: By: Dated:----------- North Dakota Chief Deputy Attorney General 6