7/31/2019 Agreement and Settlement

http://slidepdf.com/reader/full/agreement-and-settlement 1/5

{00608278} 1!

AGREEMENT AND SETTLEMENT

WHEREAS:

A. The parties to this Agreement are Narberth Borough (“Borough”) and Lower Merion

School District (“School District”); andB. The parties are presently engaged in litigation (“the Litigation”) captioned Narberth

Borough v. Lower Merion School District, Court of Common Pleas of MontgomeryCounty, Pennsylvania, consolidated at No. 2008-33104; and

C. 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; and

D. 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; and

E. 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.

7/31/2019 Agreement and Settlement

http://slidepdf.com/reader/full/agreement-and-settlement 2/5

7/31/2019 Agreement and Settlement

http://slidepdf.com/reader/full/agreement-and-settlement 3/5

{00608278} 3!

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 Petition

to 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 right

to 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:

7/31/2019 Agreement and Settlement

http://slidepdf.com/reader/full/agreement-and-settlement 4/5

{00608278} 4!

a. The School District decides at a later time to resell and dispose of theProperty; or

b. The School District fails to actively use the Property for its Intended Usefor a period of two years; or

c. The School District does not use the building for the Intended Use withintwo years of the date of purchase, then

d. the parties agree that Borough shall have the right to repurchase theProperty for the purchase price paid by School District plus theunamortized portion of any improvements made by School District after the purchase based on the cost of same and distributed over the reasonableeconomic life of said improvements. The Borough may offset the purchase

price with any debt or lien of the School District assumed by the Boroughwhere the debt or lien was incurred by the School District to acquire andimprove the Property.

e. In the event that Borough repurchases the Property, the Property shall beconveyed 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 andsuch as will be insured by a reputable Title Insurance Company at theregular rates.

6. All notices to the Borough shall be considered to be properly given if sent by certifiedmail to:

Borough Manager 100 Conway Avenue Narberth, PA 19072

with a copy to:

Board Secretary100 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 AvenueArdmore, PA 10003

7/31/2019 Agreement and Settlement

http://slidepdf.com/reader/full/agreement-and-settlement 5/5

{00608278} 5!

with a copy to:

Board Secretary301 East Montgomery AvenueArdmore, PA 10003

or such other representatives or address as the School District may designate toBorough in writing.

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have duly executedthis Agreement as of the day and year written below.

On behalf of Narberth Borough: ____________________________________

On behalf of Lower Merion School District: ____________________________________

____________________________________ Date