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Agreement and Settlement

Agreement and Settlement

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Published by narberthcivic

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Published by: narberthcivic on Jun 07, 2012
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03/05/2014

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{00608278}
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AGREEMENT AND SETTLEMENT
WHEREAS:
 A.
 
The parties to this Agreement are Narberth Borough (“Borough”) and Lower MerionSchool District (“School District”); andB.
 
The parties are presently engaged in litigation (“the Litigation”) captioned NarberthBorough v. Lower Merion School District, Court of Common Pleas of MontgomeryCounty, Pennsylvania, consolidated at No. 2008-33104; andC.
 
The Litigation relates to an effort by School District to require Borough to sell toSchool District a certain property located at 201 Sabine Avenue, Narberth (“theProperty”), and Borough’s effort to retain ownership of the Property; andD.
 
The parties have agreed that the details of their arguments and counter-arguments insaid dispute need not be stated in this Agreement but instead may be gleaned fromreview of the pleadings and motions filed in the Litigation, if necessary; andE.
 
The parties desire to settle the Litigation and have reached an amicable Agreementregarding same.
TERMS OF THE AGREEMENT:
1.
 
Borough hereby grants to School District, upon Prior Notice to the Borough (asdefined below), the right to purchase the Property, at Fair Market Value (as defined below and subject to the dispute resolution mechanism set forth in paragraph number 3 below), at any time within the next ten years from the date of full execution of thisAgreement (“the Ten Year Option Period”). Prior to completion of the purchase of the Property, School District must demonstrate a present intent (as defined below) touse the Property for a public elementary or other mutually agreeable educationalfacility (collectively referred to as “Intended Use”). Mutually agreeable educationalfacility does not include operation of a bus depot or the building to be used solely or  primarily for administrative offices. “Primarily” shall be understood to allow nomore than 20% of the square footage of the improvements on the Property to be usedfor administrative or other non-educational uses. In the event Borough believes thatSchool District is attempting to purchase the Property for purposes of using it primarily for administrative offices or some other purpose other than the IntendedUse, Borough may seek injunctive relief through the arbitrator under paragraph 3 of this Agreement and Settlement. The Property will be conveyed by the Borough to theSchool District by special warranty deed under and subject to the provisions of thisAgreement which will survive the transaction including without limitation the provisions of Section 5 below.
 
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a.
 
“Prior Notice to the Borough” means written notice of intention to purchase the Property given to the secretary of the Borough at least twoyears prior to the date the District desires to purchase said facility or byJanuary 1, 2020, whichever is earliest. If School District shall fail to givesuch written notice by January 1, 2020, the School District shall lose theright to purchase the Property. b.
 
“Fair Market Value” means:i.
 
the current fair market value of the parcel of land andimprovements comprising the Property as determined by aMember of the American Institute Real Estate Appraisers qualifiedto perform commercial appraisals in Pennsylvania as chosen by the parties jointly or as selected pursuant to the dispute resolutionmechanism set forth in paragraph number 3 below, lessii.
 
the costs of demolition of any buildings or other structures on theProperty as of the date the Property is to be conveyed to theDistrict (“Sale Date”) or the amount of $122,500 (One HundredTwenty Two Thousand and Five Hundred Dollars), whichever isless.c.
 
“A present intent” to use the Property shall be demonstrated upon ashowing of all of the following, and the right to purchase shall not accrueuntil all conditions are met:i.
 
School District shall have publicly committed to using the Propertyfor the Intended Use, subject to the outcome of the studies andapprovals listed below, prior to the issuance of the Prior Notice tothe Borough ;ii.
 
Within one year of the Prior Notice to the Borough, School Districtshall have all necessary engineering studies performed, which shalldemonstrate that the Property can be used for the Intended Useunder existing codes;iii.
 
Within eighteen months of the Prior Notice to the Borough, SchoolDistrict shall have obtained all necessary approvals of plans, permits and similar matters required by the Borough and any other governmental or quasi-governmental authority having jurisdictionfor the Intended Use, including but not limited to the PennsylvaniaDepartment of Education; provided however, that this time periodmay be extended due to the pendency of any good faith appeals of any denial of a School District’s request for approval by agovernmental or quasi-governmental authority having jurisdictionfor the Intended Use, including but not limited to the Boroughitself.
 
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iv.
 
 No later than June 30 of the fiscal year prior to the Sale Date, theSchool District shall have budgeted for the construction work which will be necessary to convert the Property to the IntendedUse;v.
 
In all other respects, School District will have done everythingreasonably necessary and practical to prepare for the Intended Use before Borough conveys title to School District.vi.
 
All of the above conditions are dependent upon the Borough providing reasonable access to the Property and any records pertaining to the Property in the possession of the Borough.2.
 
During the Ten Year Option Period when School District’s right to purchase remainsin effect, Borough will notify School District in advance of any planned capitalimprovement to the Property, so that School District is able to confirm that Borough’s planned improvements will not eliminate the ability to use the Property as a publicelementary school or other Intended Use if known at the time of the plannedimprovement. School District shall have the right to seek injunctive relief through thearbitrator, for purposes of preventing Borough from making any improvement or alteration which it deems will eliminate the ability to return the Property to use as a public elementary school or other Intended Use known at the time of the plannedimprovement.3.
 
Any dispute pertaining to any aspect of this agreement shall be submitted to a singlearbitrator for binding common law arbitration pursuant to 42 Pa. Cons. Stat. §7341.a.
 
If the parties cannot agree on the identity of the arbitrator, a joint Petitionto Appoint the arbitrator shall be submitted to the Montgomery CountyCourt of Common Pleas within 30 days either of a written request by one party to the other. The parties agree to stipulate in the joint petition thatthe arbitrator must be an adult who does not reside in the School Districtor have a then existing or past (within the 5 years prior to the filing of the petition) business relationship with either party. In the event one partyrefuses to join in the Petition to Appoint the Arbitrator, the other partymay file said Petition in its individual capacity. b.
 
Both parties agree not to assert the defense of the Rule AgainstPerpetuities in any legal proceeding pertaining to the Property of whatever nature.4.
 
Both Borough and School District agree to refrain from exercising that party’s rightto eminent domain with respect to the Property during the term of this Agreement andfive years after the Date of Sale.5.
 
In the event that School District shall exercise its option to purchase the Property, buteither:

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