Agreement and Settlement | Property | Arbitral Tribunal

AGREEMENT AND SETTLEMENT

WHEREAS: A. The parties to this Agreement are Narberth Borough (“Borough”) and Lower Merion School District (“School District”); and B. The parties are presently engaged in litigation (“the Litigation”) captioned Narberth Borough v. Lower Merion School District, Court of Common Pleas of Montgomery County, Pennsylvania, consolidated at No. 2008-33104; and C. The Litigation relates to an effort by School District to require Borough to sell to School District a certain property located at 201 Sabine Avenue, Narberth (“the Property”), and Borough’s effort to retain ownership of the Property; and D. The parties have agreed that the details of their arguments and counter-arguments in said dispute need not be stated in this Agreement but instead may be gleaned from review of the pleadings and motions filed in the Litigation, if necessary; and E. The parties desire to settle the Litigation and have reached an amicable Agreement regarding same.

TERMS OF THE AGREEMENT: 1. Borough hereby grants to School District, upon Prior Notice to the Borough (as defined 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 this Agreement (“the Ten Year Option Period”). Prior to completion of the purchase of the Property, School District must demonstrate a present intent (as defined below) to use the Property for a public elementary or other mutually agreeable educational facility (collectively referred to as “Intended Use”). Mutually agreeable educational facility 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 no more than 20% of the square footage of the improvements on the Property to be used for administrative or other non-educational uses. In the event Borough believes that School District is attempting to purchase the Property for purposes of using it primarily for administrative offices or some other purpose other than the Intended Use, 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 the School District by special warranty deed under and subject to the provisions of this Agreement which will survive the transaction including without limitation the provisions of Section 5 below.

{00608278}1 

a. “Prior Notice to the Borough” means written notice of intention to purchase the Property given to the secretary of the Borough at least two years prior to the date the District desires to purchase said facility or by January 1, 2020, whichever is earliest. If School District shall fail to give such written notice by January 1, 2020, the School District shall lose the right to purchase the Property. b. “Fair Market Value” means: i. the current fair market value of the parcel of land and improvements comprising the Property as determined by a Member of the American Institute Real Estate Appraisers qualified to perform commercial appraisals in Pennsylvania as chosen by the parties jointly or as selected pursuant to the dispute resolution mechanism set forth in paragraph number 3 below, less ii. the costs of demolition of any buildings or other structures on the Property as of the date the Property is to be conveyed to the District (“Sale Date”) or the amount of $122,500 (One Hundred Twenty Two Thousand and Five Hundred Dollars), whichever is less. c. “A present intent” to use the Property shall be demonstrated upon a showing of all of the following, and the right to purchase shall not accrue until all conditions are met: i. School District shall have publicly committed to using the Property for the Intended Use, subject to the outcome of the studies and approvals listed below, prior to the issuance of the Prior Notice to the Borough ; ii. Within one year of the Prior Notice to the Borough, School District shall have all necessary engineering studies performed, which shall demonstrate that the Property can be used for the Intended Use under existing codes; iii. Within eighteen months of the Prior Notice to the Borough, School District 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 jurisdiction for the Intended Use, including but not limited to the Pennsylvania Department of Education; provided however, that this time period may be extended due to the pendency of any good faith appeals of any denial of a School District’s request for approval by a governmental or quasi-governmental authority having jurisdiction for the Intended Use, including but not limited to the Borough itself.
{00608278}2 

iv. No later than June 30 of the fiscal year prior to the Sale Date, the School District shall have budgeted for the construction work which will be necessary to convert the Property to the Intended Use; v. In all other respects, School District will have done everything reasonably 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 remains in effect, Borough will notify School District in advance of any planned capital improvement 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 public elementary school or other Intended Use if known at the time of the planned improvement. School District shall have the right to seek injunctive relief through the arbitrator, 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 planned improvement. 3. Any dispute pertaining to any aspect of this agreement shall be submitted to a single arbitrator 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 Petition to Appoint the arbitrator shall be submitted to the Montgomery County Court 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 that the arbitrator must be an adult who does not reside in the School District or 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 party refuses to join in the Petition to Appoint the Arbitrator, the other party may file said Petition in its individual capacity. b. Both parties agree not to assert the defense of the Rule Against Perpetuities 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 right to eminent domain with respect to the Property during the term of this Agreement and five years after the Date of Sale. 5. In the event that School District shall exercise its option to purchase the Property, but either:
{00608278}3 

a. The School District decides at a later time to resell and dispose of the Property; or b. The School District fails to actively use the Property for its Intended Use for a period of two years; or c. The School District does not use the building for the Intended Use within two years of the date of purchase, then d. the parties agree that Borough shall have the right to repurchase the Property for the purchase price paid by School District plus the unamortized portion of any improvements made by School District after the purchase based on the cost of same and distributed over the reasonable economic life of said improvements. The Borough may offset the purchase price with any debt or lien of the School District assumed by the Borough where the debt or lien was incurred by the School District to acquire and improve the Property. e. In the event that Borough repurchases the Property, the Property shall be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER, the following: ordinances and easements of roads; otherwise title to the property shall be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 6. All notices to the Borough shall be considered to be properly given if sent by certified mail to: Borough Manager 100 Conway Avenue Narberth, PA 19072 with a copy to: Board Secretary 100 Conway Avenue Narberth, PA 19072 or such other representatives or address as the Borough may designate to School District in writing. 7. All notices to the School District shall be considered to be sufficiently given if sent by certified mail to: Superintendent, 301 East Montgomery Avenue Ardmore, PA 10003
{00608278}4 

with a copy to: Board Secretary 301 East Montgomery Avenue Ardmore, PA 10003 or such other representatives or address as the School District may designate to Borough in writing. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have duly executed this Agreement as of the day and year written below. On behalf of Narberth Borough: ____________________________________

On behalf of Lower Merion School District:

____________________________________

____________________________________ Date

{00608278}5 

Sign up to vote on this title
UsefulNot useful