Minneapolis Park and Recreation Board DeLaSalle Study Session February 1, 2006 MPRB HQ TRACY NORDSTROM: Welcome, everybody. I’m Tracy Nordstrom, vice president of the Minneapolis park board. Glad you could be here today. And those of our commissioners who are here … Um, do we want to do a roll call? This is just kind of a study session. It doesn’t need to be that formal, do you think? BRIAN RICE: It might not hurt to just make introductions of commissioners and staff for the record. So … TRACY NORDSTROM: OK, why don’t we do that. Tom, you want to start down there and introduce yourself? TOM NORDYKE: I’m Tom Nordyke. I’m an at-large commissioner. ANNIE YOUNG: I’m Annie Young. I’m an at-large commissioner. TRACY NORDSTROM: And I’m Tracy Nordstrom. I already introduced myself. But here I am. Oh, District 4. Thanks. MARY MERRILL ANDERSON: Mary Merrill Anderson. At-large. CAROL KUMMER: Carol Kummer, District 5. TRACY NORDSTROM: Do you want to do staff too? Yeah? JOHN OYANAGI: John Oyanagi, River District Manager. ANN WALTHER: I’m Ann Walther. I’m with Rice, Michels & Walther. BRIAN RICE: Brian Rice, Rice, Michels and Walther. DON SIGGELKOW: Don Siggelkow, General Manager. JUDD REITKERK: Judd Reitkerk, park [unintelligible] planning. TRACY NORDSTROM: So are we going to do a staff update first? Is that … DON SIGGELKOW: Madame Chair, if we could, there’s a couple things I want to do before we get into the Reciprocal Use Agreement. We gave you a packet of background material, and I apologize … it’s a fairly large packet so we didn’t make copies for the public. We have however made copies of the revised, most recent Reciprocal Use Agreement. But just as a way of trying to reintroduce this topic, one of the things we provided, that this packet shows all the board’s discussions, and the minutes that occurred during 2005. So there’s [unintelligible]. The first packet, the dates when the topic of DeLaSalle was before the board. Much of that was Open Time. So you have minutes to reflect some of the discussion, and uh … that’s basically last year’s [unintelligible] include full 2005 [unintelligible] for the board topics on DeLaSalle. So again, for new commissioners it’s hopefully a reference point for how many times the board has had this discussion in the past. And if you’d like any additional information, you can [unintelligible] to me. That would be my [unintelligible]. This is provided for your background [unintelligible]. [Jon Olson arrives] Second packet is some news articles that started appearing in January. Couple of articles in the Skyway News, downtown newspaper. There’s a recap of … DeLaSalle provided the board a recap of their discussions in the community about this facility. It was put together by DeLaSalle. It goes back to 2004. [unintelligible] discussions, public forums, reviewed [unintelligible], held discussions about the athletic field. So again, any additional information you’d like based on that. The third packet is the first time that the board considered this. It’s an action item that came before the board May 25th. It was prepared by staff, and it was basically to begin negotiations for a reciprocal use agreement. Third packet in, am I losing anybody? MALE VOICE (TN?): What’s the date? Is that the 25th? DON SIGGELKOW: May 25th. That came before the Planning Committee. TRACY NORDSTROM: There are only two. These two? What’s the third? ANNIE YOUNG: Yeah but … take that paperclip … whole bunch … [unintelligible general comments and laughter] TRACY NORDSTROM: Awesome. OK. Thank you. DON SIGGELKOW: You want me to go back through it? [general “no”s, SCOTT VREELAND arrives] JON OLSON: Please no. DON SIGGELKOW: This was the first … Again, there’s some discussions that came before the board prior to this staff report that introduced the idea of bringing forward a reciprocal use agreement with DeLaSalle. Again, this packet describes the action that was before the board in May. The board took and action. Again, some of that’s referenced in your prior materials. Essentially they asked staff to come back, hold a public hearing. Public hearing was held. Negotiations continued on a reciprocal use agreement with DeLaSalle. A lot of public input. In August the board took an action establishing a CAC, a Citizen Advisory Committee, on the project. That committee met four times I believe. They had public comments taken at each of those four sessions. And the last packet in your information is some background provided on the Citizen Advisory Committee. Facts about the composition in the committee. There is a resolution that the board approved establishing the committee. There is the resolution passed by the Citizen Action Committee back to the board, and an amendment resolution that was also passed by the committee. I can tell you that it was fairly difficult to figure out what to try and bring to you to reacquaint or acquaint you with this topic. This is what we thought was some of the germane public discussions that occurred at the board level, and some of the background information that preceded that board discussion, and then the committee, the citizen committee formulation, and their action came back to the board. So that’s a compilation of background material that we’ve provided with … We mentioned in the staff memo, attorney for the park board and attorney for DeLaSalle and myself have spent the last several weeks going back through the Reciprocal Use Agreement. There have been some modifications and Brian Rice will take you through that. This is coming back to you because [unintelligible] action which referred the issue to the city. I don’t even know how to describe the action, but there was an action which basically said the city’s now going to go through the EAW process. They’ve gone through that process. They concluded that [unintelligible]. So they have completed their EAW review. The issue is now back in front of the board. And how it comes to you is not only a Reciprocal Use Agreement that’s in front of you, but the design plans which the board reviewed back in … I believe it was November … when you looked at the site plans that the citizen advisory committee had approved. That will come back to you in committee. Then this Reciprocal Use Agreement, contrary to staff report, that is coming back to you in Planning Committee February 15 as well. And then the timetable from there would be, if it’s approved in committee, would go to the full board March 1st for your consideration. Again for both the Reciprocal Use Agreement and the site plan. TOM NORDYKE: But … so for clarity, in your memo to us on the 26th, you have February 15th as a full board action. DON SIGGELKOW: Right. TOM NORDYKE: That is not the case. DON SIGGELKOW: Right. TOM NORDYKE: That will be committee action. The board in March. DON SIGGELKOW: Right. And I believe there will be two distinct committee actions. One will be the Reciprocal Use Agreement, and the other one would be approval of the site plan. MARY MERRILL ANDERSON: And when do we get to see the site plan? DON SIGGELKOW: It’s the same site plan you saw in November. I don’t know if DeLaSalle brought that with them. [unintelligible] It has not changed since November. JON GURBAN: We going to see that at the February 15th meeting? DON SIGGELKOW: Yes. JON GURBAN: February 15th committee meeting. MARY MERRILL ANDERSON: Um, if those site plans are available, can we have those [unintelligible] … DON SIGGELKOW: Yes. TN: And also, President Jon Olson now is here, for those of you who don’t know him. He’s now in charge of the meeting. [general laughter] And Scott Vreeland. I pass the mantle. JON OLSON: Since I’m in charge, I just want to say this brings back memories of the Grain Exchange. [general laughter] MARY MERRILL ANDERSON: Actually it doesn’t because we don’t have those [unintelligible] that block views. JUDD REITKERK: We can have some of those manufactured. JON OLSON: Any questions of our attorney on the Reciprocal Use Agreement? [unintelligible] Commissioner Nordyke? TOM NORDYKE: A ton of questions. I’m not sure if this is the place to do them. [General “yes”] TRACY NORDSTROM: Yes. That’s why we’re here. JON OLSON: That’s why we’re here. TOM NORDYKE: With regard to the kind of agreement that we’re entering into with a term of 70 years, how does it compare with the term of the agreement with some of the other [unintelligible]? BRIAN RICE: We have a number of shared use agreements or reciprocal use agreements. I think a typical period would be about 30 years. Thirty years I think is the [unintelligible] to say standard but … JON OLSON: Does this compare to the Nicollet Island Inn? MARY MERRILL ANDERSON: Nicollet Island uh … JON GURBAN: Yes, we took a longer view because of that. BRIAN RICE: Yes. TOM NORDYKE: And the lease that the residents have on the property [unintelligible]? BRIAN RICE: Yes. That’d be … I think that was the rationale for this one. We do have others. The Wells Tennis Center, Don, I think has 30 years plus another 10 or 20. Which might be a similar … [unintelligible] say a similar but … [unintelligible]. We have a variety [of things ?] … We could research that if … MARY MERRILL ANDERSON: What are the ones on the island? BRIAN RICE: The island were 99-year leases. ANNIE YOUNG: But they’re 27 years into it. JON OLSON: So they only got 80 left. BRIAN RICE: Well actually they’d be about 70, which would be about the term of the DeLaSalle lease. JUDD REITKERK: That was the idea, was to match that. TOM NORDYKE: What I could suggest since this document is going to live long beyond us that maybe one of the Whereases might [unintelligible] acknowledge that we have this type of relationship with other institutions and individuals. The other question I have with regard to the Whereas piece is just, we are saying here that the park board is not willing to sell the land. Is that a formal motion by this park board that refused to do that, or is that a [unintelligible] … does it have to be formal to put it in there? BRIAN RICE: Don worked on this issue. I think that was really more a statement of sense by the board at some point. I don’t know that it’s required, but it’s that the board did not want to [unintelligible] itself … DON SIGGELKOW: The previous board did not want to sell. TOM NORDYKE: With all the historical stuff—forgive me for not digging through it—but that wasn’t actually an action where we said “no, we’re not going to do this type of thing [unintelligible].” DON SIGGELKOW: No. It would be by agreement, but I think it is consistent with … we didn’t sell the land under all the houses either. We leased them for 99 years. ANNIE YOUNG: But we also have kind of an unstated feeling amongst many, many commissioners about not selling land. I mean it’s … MARY MERRILL ANDERSON: Not unstated—it’s kind of stated, isn’t it? JON GURBAN: It’s a stated one of no net loss. ANNIE YOUNG: Well, we’ve said it very publicly, we’ve said that. But I don’t know if it’s a written policy. Is it a written? BRIAN RICE: Actually I think we do … not. [?] JON OLSON: No. It’s no net loss. JON GURBAN: No net loss. ANNIE YOUNG: Right, no net loss. TOM NORDYKE: So it IS a formal policy. WOMAN’S VOICE: No, it’s not. DON SIGGELKOW: Well, you can sell, but you gotta buy. WOMAN’S VOICE: You can sell but you’ve got to acquire something at the same time. BRIAN RICE: I know that one of the issues … at least as I had done some more research … the board does have a policy on joint use, and generally in that policy … there are other policies I’ve read of the board where we say we don’t want to lose land. We don’t give up land. We might consider using it if it’s an appropriate use with another party and it makes sense within the park system [unintelligible] for doing that. But yeah, I think it’s formal policy in the board documents, we don’t sell land absent very unique circumstances or a no net loss, or … you know … JON OLSON: We’ve sold some property in recent … We sold a piece of the Dunwoody. But we acquired different properties, a park up here [indicates up W. River Pkwy.?] and sold a piece out by the airport but that was more of a trade. Was it 10 acres we gave the airport and what did we get back, four? JUDD REITKERK: We gave them eight and got back 10. MAN’S VOICE: … fair market value … JUDD REITKERK: Thirty acres of additional lease property [?]. TOM NORDYKE: OK, I’m just going to keep going. Section 2 Conditions Precedent [?] Number 2.4. This is relevant to an issue that we’ll expect in the later … in our board meeting but, maybe go through [unintelligible] DeLaSalle at some point will be asking us for the same kind of estoppel signature that we are being asked by the Nicollet Island Inn at this point and is there any issue with us possibly denying that particular one and knowing that we might be asked to do that on this particular one? BRIAN RICE: I would say on this property that your suggestion is that DeLaSalle went out and try to get a mortgage or something like that. I wouldn’t … I think the board should say we’re not going to let any kind of encumbrance on this property. I mean, the encumbrance on the Nicollet Island Inn is on the building. We own the land. I mean, the mortgage that the bank would have would be on the building, which Nicollet Island Inn, not on the land, on the ground itself. So that’s where the, that’s … their issue that arised there. How can … The bank has a mortgage on the building but not the land. It’s kind of like, what good is it? If they lose the land, they can’t get to the building. And in this case, I’d say that … I would certainly recommend if DeLaSalle came forward and said we want to put a mortgage on the property, I’d say no. I mean, that would be my advice to the board. I mean, we could permit a mortgage but I wouldn’t think it’s advisable. TOM NORDYKE: And that would be a separate legal relationship than what is defined in this Reciprocal Use Agreement, or do we need to reference that in more specific ways? [?] BRIAN RICE: If you’re not clear, we could maybe work on some language to make this clearer. I mean, I thought that the thought would be that DeLaSalle, at the point they’re ready to begin construction, they’d come here and say, we’ve got the commitments of you know. We’re raising two million dollars, here’s our financing plan, we’ve raised the money and the board’s advised of it. But that wouldn’t assume that we’re going to be participating in it. But … JON OLSON: Brian, would that be better on a site plan than constructions? Would we want to pare that off in the site plan and construction versus reciprocal use agreements? BRIAN RICE: I put this in here because I think the board probably wants to have some assurances from the school that they’ve raised the money and they’re going to proceed with the project. That they don’t start it and … JON OLSON: Right but that goes towards the construction … I mean we’re going to have a construction agreement and a reciprocal use agreement, correct? BRIAN RICE: Well, Don had talked about that at some point. I think that this reciprocal Use Agreement now has got to the point that, I don’t know that, I’m trying to think what would be needed to have a construction agreement. DON SIGGELKOW: I think it’s all one. [unintelligible] one sets of notes [??] BRIAN RICE: I can look at that, Commissioner Nordyke, and see if I can make that clearer. So if you’re having a question, than that means that … TOM NORDYKE: Well, I think that that’s what I intended [unintelligible] not a question about that. BRIAN RICE: Yeah, we’re not … the park board’s not going to participate in the financing in anyway. JON OLSON: [to Annie Young, indicating Tom Nordyke] I don’t know if he’s done. ANNIE YOUNG: I know. I was going to ask a process question. Would it make more sense to ask all of our questions about, like, each page of the document as we go through, rather than each one of us going through and starting from the beginning … JON OLSON: No, I’d just as soon, because somebody might answer some of those questions [unintelligible]. … You’re next, Annie, so you don’t have long to wait. [some laughter] ANNIE YOUNG: No, that’s not the point. That’s not the point. TOM NORDYKE: Section 3. Term. Is there legal reason why we’re splitting this out [unintelligible]? Why don’t we just do a lease [?!] for 70 years? BRIAN RICE: I think it’s always good to bring stuff back in front of a board. I mean, we do that with other agreements, so that at least it gets reviewed periodically. So um … you’re pretty young, no maybe Commissioner Nordstrom might be the best. She’ll be here in 30 years. I don’t think I will be. [general laughter] TRACY NORDSTROM: I hope so. [unintelligible] BRIAN RICE: There’s some institutional memory that it happened before. Hopefully somebody’s going to be around [unintelligible] what’s involved, if this agreement is entered into, they’ll have some recollection of the discussion. ANNIE YOUNG: But I think the same goes on the other side. BRIAN RICE: True. ANNIE YOUNG: I mean it’s … BRIAN RICE: They may say … ANNIE YOUNG: No one’s going to keep track of these things over the years. [?] BRIAN RICE: You want to be committed. It’s not … this length of 70 years is atypical, but it is not unusual to say that, in our agreements, that we’ll look at it after 20 years, or another five, and another five. TOM NORDYKE: But if we look at it after a 30-year period, we’re almost out of [?] options. BRIAN RICE: Yes. TOM NORDYKE: Literally they would have to be in default, basically, at least in order to not renew. But their options renew as long as they’re defined as solely their option to renew. BRIAN RICE: True, although there are events in default that if they don’t continue to maintain the field in condition that’s a default. We can say, get out of there, take your stuff and return the park to the condition it was. JON OLSON: Is there similar language with the Calhoun Executive Center and the parking lot that we share over there? That came before the board I think last year where we had to renew their lease, and I don’t know, a parking lot that we did together. DON SIGGELKOW: Yeah. In fact there was … BRIAN RICE: I think it’s good to build these in. Otherwise they get lost. I mean, at some point it makes the staff do their job. JON OLSON: I think that’s kind of what it was with Calhoun Executive Center and the parking lot. Just for an example. BRIAN RICE: I mean, have a … I mean, it’s a bit of a diversion, but state law … We had a lease from the state for the Veteran’s Affairs. Magowee {??] [unintelligible] in Minnehaha as you walk down from the falls down to the river. That’s like on a 30-year claim-in [??} you know, 10 years ago, [unintelligible] removed in the last time in the mid-60s. [???] TOM NORDYKE: Okay. Section 5, I think I misunderstood this. Section 5, five, 1.2. My interpretation of that was that we would have a final … we have approval of the final plan, but I think what you’re saying is that’s our approval on the 15th, is the last time we’re going to get to approve the plan. [unintelligible] DON SIGGELKOW: How we typically do these projects is the board approves the schematic or overall design plan, yes. You’ll get a site plan that’s really a design plan. And then the planning staff will review all the construction plans to ensure that it’s consistent with the schematic plan. So that would not come back to the board; it would come back to the staff. TOM NORDYKE: So with regard to this agreement, the last chance that this board will have to vote on the design is intended to be the first week in March, right now. DON SIGGELKOW: Yes. That’s the plan. BRIAN RICE: Now I might add, I mean if the board doesn’t like that provision, it’s your agreement. You can change it. If you want to say you’ll get another look at it, you’re the boss. TOM NORDYKE: So now here’s a technical question. [unintelligible] You have the purchase agreement that requires for the condition precedent in it. Does it require six votes to remove the condition precedent, or can five members vote to approve the design. BRIAN RICE: Um … I think if … that’s a good question. I would say that in this agreement, and I would [unintelligible] is a lease, then this agreement would take six votes, and without further research, if there was a 5 … I think that the board could on a 5-4 vote approve the design. That would be my … I mean, this agreement is the one that says we’re going to enter into it. Again, this becomes a design issue, which isn’t really the lease issue; it’s a design issue. But I might, you know, maybe I need to think that one through. Good point. TN: With regard to 5.2, it appears to me that we are requiring them to employ union labor. I am familiar obviously with prevailing wage. I am not aware that the park board had a policy that they would have to employ union labor. [unintelligible] It refers to the city’s policy of employing union labor. I do not believe the City of Minneapolis has a policy … ANNIE YOUNG[?]: Prevailing wage. SEVERAL OTHERS: Prevailing wage. SV: Chapter 6 says nothing about union labor. Our ordinance doesn’t say anything … BRIAN RICE [?}: It’s prevailing wage. ANNIE YOUNG: Well, but it’s in the … TOM NORDYKE: Your last four words are “shall employ union labor.” BRIAN RICE: No, that’s true. That’s the additional requirement that Commissioner Hauser had at the … when she voted for this agreement initially. She added “and shall employ union labor.” That was … ANNIE YOUNG: So we can debate that. BRIAN RICE: You can debate all of this, Commissioner. I mean it’s your agreement. JON OLSON: The problem is … [unintelligible] [general laughter] ANNIE YOUNG: Well, but does that include then … are we going to have any criteria about minority contractors and minority … I’d take it a step farther about, I mean, using minorities, minority contracting companies. I mean, I don’t know. I know we all are … have to be very loyal to our unions but … TOM NORDYKE [?]: So, with re— ANNIE YOUNG: We are discussing with somebody else that’s doing the job. CK: I think there’s a state … for the minority [unintelligible]. There’s a percentage. I know the Met Council uses that for theirs. But there’s some … MARY MERRILL ANDERSON: City of Minneapolis has a Department of Action policy, a policy that talks about making sure that whoever is hired complies with … it’s not discriminatory and does comply with … ANNIE YOUNG: So do we want to make sure that [unintelligible] in? DON SIGGELKOW: It’s confusing to have in a [unintelligible] on a small … MARY MERRILL ANDERSON: Small business. DON SIGGELKOW: If we go that route, and you include that, then I think you need to remove “union.” Because you can’t get both. You get small, emerging businesses, they aren’t union. TOM NORDYKE: Well, on a point of clarity though, this board voted to include that line in there. So the board will have to vote to take that line out. What I would like … well, we’ll have that discussion. What I would suggest under 5.2, whatever the outcome, is that it be a little more clear: We don’t have a policy that they employ union labor. We have a vote on this one project. Is that … BRIAN RICE: That would be a fair statement. TOM NORDYKE: So just making that a little more clear so that anybody that’s referencing it … SV: Point of information. This … 5.2 used to just say “union labor” and it has been changed. So it is in the process of transition that you are seeing. So it is not taken whole cloth from a previous action. The first … 5.2 is almost entirely new as per this board’s conversations with our counsel. So it … MARY MERRILL ANDERSON: This is not from a board action? DON SIGGELKOW: No, there’s been a … some minor changes to it, additions and concerns [unintelligible] … ANNIE YOUNG: This January 12th document does not have this. JON OLSON: Commissioner Nordyke. TOM NORDYKE: I will be back up to … I never want to bring it up again but I [unintelligible] … policies [unintelligible] … 5.3, 5.4, 6.1, 6.2 … We’ve got payment performance bond, we’ve got mechanics liens that shall not be tolerated, etc. etc. Is there anything else we can do that would be a next level of protection with regard to issues of having them do construction on property that we own, possibly a lien relative to that? BRIAN RICE: I suppose we could get a personal guarantee from Brother Michael or something like that, for all his assets. [some laughter] I’m kidding. You know, there are a number of things you could do. I mean, you could ask for a personal guarantee, a debt of [???] performance and payment bond and mechanics lien, indemnification. I think ultimately you want to look at who you’re dealing with. I mean, you have an institution here that’s been around for 106 years. I suppose you could, you know, we could do some more due diligence into their financial condition and issues like that. I think that … but I guess the question is, are they going away? I think the answer is, they haven’t been around as long as the park board, but they’ve been around almost as long as the park board, so you’re dealing with an institution that’s got some wherewithal. JON OLSON: Let me see if … I don’t think a personal guarantee is gonna … ANNIE YOUNG: Gonna fly. JON OLSON: … but would it be possible if there was a lien filed on the property for the work, in the very unlikely case that that would happen, would we have an option to file a lien on DeLaSalle if that building is ever sold to recoup our losses or recoup our [unintelligible]? BRIAN RICE: I don’t think we can do a file of liens if we haven’t done any work. JON OLSON: Right. But since … BRIAN RICE: Ask them to … JON OLSON: No, no, no. ‘Cause, we hadn’t done any work, but if … would we be able … would they give us the lien waivers … I don’t know. Some kind of option where we did this … file a lien versus their property. If they were ever sell them, we would get reimbursed for the money we were out. BRIAN RICE: It’s something we’d consider. JON OLSON: I assume they own the school after 106 years. I don’t think they have a mortgage … BRIAN RICE: I haven’t checked out that option. I would assume that too but we haven’t done any research on it. JON OLSON: Is that an easier, cleaner way to do things than to try and go the other route? BRIAN RICE: Then I guess the issue is, if they had a lien on our property and the mechanics lien tried to foreclose it. I mean, these are designed to prevent that from happening, that DeLaSalle would have a mechanics lien, they have to clear it within 20 days or … yeah, that’s part of the indemnification. The question is I suppose that, if DeLaSalle doesn’t do it, then what’s their financial condition? They say we don’t have the money, the building’s there, that’s why I think a payment and performance bond is the next best thing. You get another, a third party then, that says “We’ll pay it off.” And then they would proceed against whatever the terms of the bond were with the school. They would go against the school and would take us out of that. JON OLSON: All right, well, good. BRIAN RICE: I mean, we could. The answer’s yes, we could. [BOB FINE arrives] JON OLSON: That’s fine. [unintelligible] TOM NORDYKE: Well, I appreciate the humor but I agree with Mr. President that a personal guarantee [unintelligible]. The only thing that I would suggest that I’m not familiar with … the payment and performance bond as it relates to our [unintelligible] and probably someone else [unintelligible] .. but making sure that WE have some kind of legal [?] access to the payment and performance bond, keeping in mind that we’re talking about due diligence on the financial state of DeLaSalle. Whoever’s giving them the payment and performance bond will have already done that. They wouldn’t be able to get one if they [unintelligible] … BRIAN RICE: Yeah, they would do the work to check ‘em out or say, “Here’s … TOM NORDYKE: But, um, you’re the attorney so I’m sure you can figure that out. But, the connection between us and that payment and performance bond is what interests me. And I just wanted to make sure you get that in there [?]. BRIAN RICE: They would have to present it to us. I mean, this becomes the human element in anything. We need to make sure on our end that once they present it that it’s satisfactory to us and, you know, the bonding company is reputable and all those other conditions. And that’s, I mean that’s where, you know, we just have to be diligent in our side. And I suppose there’s a … we could look at some other language here. I mean, you know, the company’s suitable and acceptable to the park board, and we don’t want the fly-by-night, you know, mechanics, or … payment and performance bond company. We’d rather have Hartford or … MAN’S VOICE (OLSON? NORDYKE?): Don’t we have any recommendation on this one? TOM NORDYKE [?]: Is there any … Sorry? JON OLSON: You almost done? TOM NORDYKE: I’m getting there, I’m getting there. Under the indemnification piece, is there any precedent for an organization like ours asking for indemnification with regard to lawsuits? BRIAN RICE: I guess … ANN WALTHER [?}: [unintelligible] BRIAN RICE: I think that yeah, there are cases. We could look at the … BOB FINE: Indemnifying against lawsuits? MULTIPLE VOICES (SIGGELKOW? RICE? WALTHER?): Well, we’re still required … prior to paying for attorneys fees or something like that … BOB FINE: Well, there is an indemnification clause here against any [claims? clients?]. Pretty broad. TOM NORDYKE: Is that your opinion, Mr. Counselor? If we get sued … BRIAN RICE: I think that the second indemnification … one is related to construction. 6.1 is “DeLaSalle indemnify the park board from any claims arising from construction or use of the facility.” BOB FINE: construction OR USE … BRIAN RICE: … or use of the facility. Any and all activities of any kind that are [?] sponsored by DeLaSalle. park board property. Second one: to the extent that it’s allowed [?] by law, we’ll indemnify DeLaSalle. So really it’s construction and use. I think Commissioner Nordyke is asking, can we get an indemnity if there’s any lawsuits? I mean, there are, you said like in connection with … TOM NORDYKE: If someone sues us relative to the constitutionality of our action, who pays for that? BRIAN RICE: Well, I think at this point, we would. The park board would. TOM NORDYKE: And is there precedent for possibly being indemnified by someone for the legal fees associated with that? [?] BRIAN RICE: I am not really familiar with that. I’d have to think about it. I thought about it [unintelligible], but I think the policy issue there is, is that, you know, somebody comes up, “We’re going to sue you,” does the board then not take an action because we’re going to have to incur some legal fees to do it? That’s a legitimate rea—… you can say, “We don’t want to spend the money or take the risk.” Um … ANN WALTHER: [unintelligible] BRIAN RICE: Right. That wouldn’t be covered. If we got sued over this by some … on constitutional claims or … JON OLSON: Counsel Rice, I thought we had discussed that, the previous board had discussed that, … 2.1 relates to the land use … okay. I think the board was, the previous board was talking about lawsuits [?] [unintelligible] BRIAN RICE: We … 2.1 addressed the situation of DeLaSalle needing to go to the state and the Met Council to get any restrictions released on that, and that would get their response. So the park board was saying, “We’ll let you do this, but you need to know the tennis court land, as it’s sometimes referred to, our block has some restrictions from the state.” And early in the negotiations, we told DeLaSalle, “That’s your job to go get that [unintelligible], not ours.” And they agreed to undertake that effort. BOB FINE: So you’re asking if we should have a clause in the contract that says that if we incur legal fees whether we had authority to do that [?] whether we should … It’s not in there. It’s not in there. It’s like saying, you have the authority to do it, do you want DeLaSalle to cover the legal fees? BRIAN RICE: And I mean, I accept … I thought a little bit about this issue, and saying should we do that or not. And you know, my side of that is, is that, if that was an issue … BOB FINE: [unintelligible] BRIAN RICE: … that could be an issue applied to a lot of things. I mean, it seems to me the board should decide, you know, “What is our authority? Do we want to do it or not?” It seems to me, if I were in your position, I might want to be the one directing that effort, rather than just saying OK, you know if there’s a constitutional challenge, we’re going to have DeLaSalle represent our interests. I don’t think that would be the smart thing for the board to do … in terms of what you’re … you know, ‘cause that kind of goes to the control of the land, or how much you can use, or what your authority is as a governmental entity to decide well, do we want to enter this relationship or that relationship? So, I mean, the board can do it if they want to. I’m just … I think it’s an issue to think about. I think in some ways, I guess what I’d argue is it’s probably a cost of your doing business on some level. Certainly I think if DeLaSalle needs to get this land released from the Met Council and the state, my view was that’s your job, you know, you’re asking … MAN’S VOICE: That’s THEIR job. BRIAN RICE: … Their job. Um, I think the issue about it, somebody’s going to say, well, we’re going to challenge you on a constitutional basis or some environmental issue, um, I think that’s, that’s probably getting enough of a public-level issue that the board needs to say, you know what, we’re just going to run into this, and that’s … Or we choose maybe we’re not going to run into it, we’re not going to run the risk of doing this. JON OLSON: Counsel Rice, do we have other reciprocal use agreements for organizations that are religious-based such as the YWCA? BRIAN RICE: Yes, at North Commons. And— JON OLSON: How long have we had that agreement? BRIAN RICE: That one’s actually coming up on [unintelligible] years. JON OLSON: So it’s been in place for 24 years. BRIAN RICE: 1974 … or maybe that was a 35-year one. JON OLSON: So we’ve … TRACY NORDSTROM: [unintelligible] JON OLSON: Well, they use, they use space. They do programming, they do gym BRIAN RICE: That was a 40-year one. JON OLSON: They actually have a room that they … that’s pretty much theirs. So we have agreements in the past with organizations [?] ANNIE YOUNG: Does that apply also at Phillips gym? BRIAN RICE: Well, they have Boys and Girls Clubs, which I think is just … ANNIE YOUNG: But they’re not the Y. BRIAN RICE: Right. Pardon? ANNIE YOUNG: The Y is there also. MAN’S VOICE (GURBAN?): Y is, YW is … MARY MERRILL ANDERSON: The main tenant is the … ANNIE YOUNG: Oh, so it’s a sublease. MARY MERRILL ANDERSON: It’s a sublease. BOB FINE: But we probably [accepted/expected?] the sublease TOM NORDYKE: My final question— SCOTT VREELAND: Point of information on that is, you know, just because you’ve been speeding all your life doesn’t mean that it’s legal. You know, the precedent doesn’t necessarily establish anything in terms of whether the constitutional issue will be raised or not. So the fact that it is there … BRIAN RICE: That’s true. SCOTT VREELAND: … is an interesting side issue, but doesn’t, it does not affect the question of the constitutional [unintelligible]. TOM NORDYKE: Have you ever rendered an opinion to this board, with regard to that issue, or was that a previous counsel? BRIAN RICE: Um, on the issue of the why … JON OLSON: Previous [laughing]. [General comment and laughter] ANNIE YOUNG: Well Mary might [unintelligible] … BRIAN RICE: Um, you know, um … I have had, we have had occasion on other things to have a look at what, what the relationship can be between a … for example, a couple years ago, the ah … WOMAN’S VOICE (MARY MERRILL ANDERSON?): Lake Harriet [unintelligible] BRIAN RICE: … Salvation Army. Well, the Salvation Army had explored entering … they had this Kroc grant, and we had looked at that issue about how far we could go or not. I don’t think it ever got to the board level. It was a staff issue. We have run into issues in the past where we’ve given opinions. For example, Superintendent … Commissioner Merrill Anderson, Lake Harriet, where we have church service at Lake Harriet bandshell on Sundays. And we have a policy of allowing churches into our buildings. Now … WOMAN’S VOICE (CAROL KUMMER?): And Minnehaha Falls. BRIAN RICE: … Boy Scouts. There’s some active churches at Folwell Park that have been having relationships Sunday mornings where they have their services there. That’s a little different. All of these issues are slightly different. I mean, you twist it and every fact situation is slightly different and this one is different. We do have a memo that we’re prepared to give you today on the issue of church- state separation. Commissioner Young had asked that question and we’re prepared to go into that today, and have a memo that you can have and members of the public can have, and we’ll share our thoughts on that. TOM NORDYKE: I kind of lied. I have some more questions but I’ll try to make them sound like one question. [General laughter] BRIAN RICE: The first part of the second part of the last question. [laughing] TOM NORDYKE: The methodology just behind the 150 hours and the 350 hours. On a yearlong sort of a time frame, it does seem to be not a lot, but I’m sure there’s some methodology. And then with regard to that use, how are we … do we need to talk about use of support spaces like public bathrooms, locker rooms, equipment facilities. Do we get to use equipment? Or do we have to show up with our own, or what’s the intent behind that [unintelligible] reference? BRIAN RICE: This is really a question that Don should answer, but if I could try to … my quick stab at it: when I first looked at those numbers, I thought that it seemed small. And I don’t want to steal Don’s thunder, but Don’s got way more experience … well, Don, you probably [have it down?] … you explain it. I’ll turn it over, because I’ll, he’ll do it quicker. DON SIGGELKOW: The field use, the 350 hours. We’ve at the Neiman complex, the maximum utilization that we can get out of those fields before we destroy them. And the field at DeLaSalle, the current field and the proposed [unintelligible], are about the same type of structure, the sand-based field. When we hit 7 to 800 hours on that field because it’s a compressed timeframe, it’s during the summer months and the fall, and especially in the fall when the grass is not growing there so it really gets problematic. That’s about our … that’s the point where the field starts really to deteriorate, at about 7 to 800 hours. We brought in our turf specialist who actually built those fields, and he had no idea how we were going to utilize the fields. This construction method is for a high level of high school facility that only uses it once or twice a week. And when he found out we were using it to that extent, his recommendation was we go to back to about 400 hours. So our programming basis … 350 hours is a lot of hours for field use. Especially in the compressed timeframe of the summer, when there’s many [unintelligible] needs, that’s a lot of field use time. It’s probably also the maximum the field can handle. On the gym, it was basically, it was based on what we thought we could utilize the facility [unintelligible], and in conjunction with school events going on [unintelligible]. I think those are pretty [unintelligible] numbers [?]. BRIAN RICE: You know, and if I could just add something it would help my thinking on this. Five months of the year, you can’t do anything on that field, in the school year. ANNIE YOUNG: And global warming [unintelligible] … BRIAN RICE: Well maybe … ANNIE YOUNG: Let’s not be in denial here. BOB FINE: You still can’t use it. You can’t use the field time, global warming or not. [laughs] BRIAN RICE: Right, but you look at that in a school year, that gives you another, say, four months of the school year where they could use it. Nine months in the school year, five months it’s off the kilter and then three months in the summer. So really you start doing it and then school days and how much time the kids are really are on the field, I think you’re only looking at, like Don says, maybe for this field, you know, maximum of 800 hours. And so, he wouldn’t [??} combine the gym time with the other time. Put it this way: the other way to think about this is, schools, to build these fields, are spending a lot of money for not a lot of hours. But put another way, the park board’s building one of these things, the same holds true. Fort Snelling, some of these other things. But the fact is, is that, people [unintelligible] … parents don’t have multiple use. You have single- purpose use fields that have to be for soccer or football [unintelligible], they’re expensive to maintain, they have to be lighted. It’s not cheap to provide these things for kids these day and age. I think that number … I had a question on that too, and when Don explained it when we sat down, I was satisfied that this hour sharing is pretty close to an equal trade. BOB FINE: But the real explanation is take a look at the high school football/soccer fields in Minneapolis. They use ‘em for both. I’d be surprised probably if they used them 150 hours a year. I mean, you should see how they guard [?] ‘em. I’m talking about maybe 100 hours at the most. You’re only talking about six home football games a year, and you know maybe at the most 15 home soccer games. And they don’t let their teams practice on those fields. They rarely practice, and if they practice it’s called, you know, an hour drill. They don’t let us use ‘em … JON OLSON: North High has a really nice football field, and they like to try and go and practice at North Commons. BOB FINE: So 100 hours of use would be a lot on those fields. So if you were to keep [unintelligible] BRIAN RICE: And they tend to keep them locked down. That was one of the issues here … BOB FINE: Yeah, they lock them down. BRIAN RICE: … about fencing or not. I think the staff would probably say if you make this investment, you lock it down. Now that obviously wouldn’t work with the character of the island and residents’ concerns and things like that. But people tend to, if you look at high school facilities … pretty secure. DON SIGGELKOW: Yeah. TOM NORDYKE: Then and how about the support facilities? BRIAN RICE: I think that’s a good question. I don’t have any thought—Don’s been involved in that, about you know, facilities, using basketballs, whose … whose … TOM NORDYKE [?]: Bathrooms, basketballs, locker rooms, equipment, that kind of stuff [unintelligible] … JON GURBAN: Bathrooms .. [unintelligible] TOM NORDYKE: I’m sorry? JON GURBAN: We addressed the bathrooms and that in the design for the field. So we were looking at the support facilities. Things like locker rooms and that, we did not address ‘cause or experience has been that kids don’t use locker rooms much anymore in terms of the traveling recreational leagues. They come dressed to play and they go home after that. They’re not use the changing, locker rooms like they did when we grew up. So we’re pretty comfortable with the language there. We’ll take another look at it. JON OLSON: All right. [looks at watch] Well, Commissioner Young, you got five minutes, now. It’s 4:30, so ... [general laughter] ANNIE YOUNG: Well, yeah, I have … [general laughter] and I have masses, but I feel like I’ve been studying it for six months [unintelligible] and I would rather have one [unintelligible] for two that’s constitutional than [?] church and state, so let’s get that out, that’s [unintelligible] and let’s do it. And then I would like to give Scott, Tracy and Mary the chance since their the new people. They, I mean, everybody’s heard my questions 100 times and will continue to hear them, so … JON OLSON: That’s a great, great offer [some laughter and applause from Olson and Fine]. Thank you, Commissioner Young. [taps Nordstrom’s elbow] ANNIE YOUNG [?}: So, Scott … TRACY NORDSTROM: No, let Scott … BOB FINE: She thought she’d have a half hour … [laughing] SCOTT VREELAND: So we’ll come back … I mean, the question is, do we need … if we’re going to be sued, and we have been sued before, we probably will be sued again, where would we be sued and why? And one of the issues would be the constitutional law. Do we need another outside opinion if this is a potential lawsuit, so that we know that we’re really well covered? And I don’t know the extent of your law firm’s expertise with constitutional law, but is this something where we might need an outside legal opinion? I’m also looking at the same language of 5.4 that’s in the 201 Building. I mean it’s word for word the same mechanic’s liens that failed us at the 201 Building. JON OLSON: [unintelligible, gestures toward Brian Rice] SCOTT VREELAND: Well, I understand, but the question is, do we need better real estate legal advice to make sure that … I mean, whatever we did before wasn’t sufficient. BOB FINE: [chuckles after apparently conversing with Mary Merrill Anderson, then converses with Jon Olson] SCOTT VREELAND: And I’m not a lawyer with knowledge about real estate law, and I would like to know that this is sufficient. And that I appreciate Commissioner Nordyke’s comments about this, seeking further indemnification. One of the questions is, similarly if we don’t approve the design, are we in danger of being sued by DeLaSalle? I mean, if it’s a 5-4 vote and it’s a different group … MAN’S VOICE (FINE?): [unintelligible] SCOTT VREELAND: … and you know, I mean, I don’t like where the bathrooms are, or what, you know, this sand under the grass, I don’t think that’s good, you know. Are we indemnified with … internally in this document from our best efforts being not sufficient, and are we liable to get sued? BRIAN RICE: Well, I would … I could … any other questions? JON OLSON: First, can you address the reason why this would be different than the 201 Building in the fact that a performance bond wasn’t taken out … [unintelligible] prior to[?] construction [unintelligible]? BRIAN RICE: Well, um … yea—I can. Um, there are different provisions in this one. Obviously the payment performance bond is in here. I think the biggest thing, difference is the party you’re dealing with, quite frankly. I mean, I think having the payment and performance bond in here is good. I think the agreement, the agreement that we had on the 201 Building is an agreement that we’ve used umpteen times, with a number of people … SCOTT VREELAND: And I don’t, I don’t want to deal with “the party who I’m dealing with.” BRIAN RICE: Right. SCOTT VREELAND: I want to know that no matter what … I don’t want to have to rely on the fact that these are good people. BRIAN RICE: Right. I hear you. That’s why we have a payment and performance bond. SCOTT VREELAND: I care, but I don’t care [some laughter]. BRIAN RICE: Well, we have a payment and performance bond in here. The … the … which wasn’t in the 201 Building agreement. Um, there are other things I could talk about on what … if you want to talk about why the 201 Building’s an issue, I think that would be a discussion best left for another day. SCOTT VREELAND: Well, the issue is, do we have sufficient … I mean, have we learned sufficiently so that we are correctly indemnified? Is this something that we need additional legal advice for? Being, you know … BRIAN RICE: It’s a fair question. SCOTT VREELAND: Again, we’re not going to deal with that today. Sufficiently. BRIAN RICE: Right. Well, I mean, I think what’s different is, we do have a payment and performance bond. That’s an additional level of security that wasn’t there. We do have, uh … I would say, one thing that you’re dealing with here, and it was an issue that came up, and the prior board felt secure enough— at least a majority of it did—in the party it was dealing with, and it wasn’t just at the staff level. The 201 people came in front of a board, issues were raised about it, a majority of the commissioners after hearing from them, went ahead and did it. The old … the prior agreement said they should have asked my opinion on it. The prior board didn’t. The old board had a group in front of it and bought what they were told, despite what anything the staff had said or anything else. Um, the … you have an institution in front of you here, um, and that’s an important thing about who you’re doing business with. Because any contract can fail. Um … I think that this one is a good contract. I think it has protections in it that we have thought about it. We have added additional things that weren’t in a prior one. We have an agreement on, um … and we’ve done multiple agreements. This institution has done multiple agreements with a number of parties, and none of the other agreements have failed. And it’s … if you look back 30 years ago, you could look at the agreement that you’ve got with the Boys and Girls Club, and the YMCA, and it would appall you, in a way. But it’s worked, for 40 years. Times change, people learn lessons. Payment and performance bond? There SHOULD have been a payment and performance bond on the 201 Building. The architect should have pulled it. They didn’t. That was part of the legal action. That’s why we had a settlement. If you talked about, was it just our failure? No. There’s … there had, there were a dozen failures in that situation. I think that this agreement, on that issue, that the board IS well protected. Particularly with who you’re dealing with, with the mechanic’s lien, with the payment and performance bond, and with the fact the board’s going to ask to keep looking at their financing. We’re not going to leave it to chance. We’re asking … BOB FINE: But the major difference … there’s a huge difference here between what we’re doing with the 201 Building. It’s like talking about a penny or a hundred thousand dollars. DeLaSalle OWNS the neighboring property. We signed a contract at the 201 Building, which had this much assets [makes round, “zero” shape with hand]. They owned no land. They had no assets. If for some reason, something happened, DeLaSalle get sued—they’re there. I mean, they own land. There’s assets there. There was no assets here [?]. It’s totally different. You’re not talking about the same kind of situation. ANNIE YOUNG: Well, and isn’t … don’t they have an overarching … isn’t there an archdiocese involved too? I mean, there’s a basilica and things that might be up for grabs here. [some laughter]. No—no, no, there’s assets … BOB FINE: No matter what, they own a huge piece of land, much bigger than our tiny little parcel that we have next to them. And we aren’t talking about a big structure being built there. We’re talking about open land. [unintelligible] SCOTT VREELAND: And my question, my question is not about the nature of our partners. My question is about the nature of our legal advice, and whether it is sufficient. And we will have to rely on you [nods toward Brian Rice] to help us figure that out. The ... so we’re asking … one end is the real estate law. The other end is the constitutional law. BRIAN RICE: ‘kay. SCOTT VREELAND: And I am not a constitutional law expert, but I see some fairly clear things that could be problems. It seems pretty clear that there might be some major reasons where we couldn’t do this, looking at the Minnesota Constitution and what it says. BRIAN RICE: ‘kay. SCOTT VREELAND: You know, it seems pretty darn clear. So before I walk into this … BRIAN RICE: Sure. SCOTT VREELAND: … I want perhaps more than just your opinion, but some constitutional law expertise. Because if it’s, you know … turns into, you know, lawsuits that, that … spending money up front to know better what … that … you know, what [unintelligible] a lot of case law about that. I wouldn’t want to walk into this without a better understanding … [tape change … gap of about a minute] BRIAN RICE: … Teresa Nelson from the Minnesota branch of the ACLU about this issue as it’s gone on. And she’s indicated to me at least initially—and I don’t want to be here speaking for her—but when the issue came up in August I looked at it, August Berkshire, Ms. Bennett, several of the meetings I’ve been in communication with him. They have concerns. They’ve been monitoring it. At this point I’ve sent them a copy of the RUA, yesterday, Teresa. I probably should get it to August because he was very diligent in coming to those meetings [unintelligible]. Basically what we conclude is this: federal law, the one … best that we can tell, is still the prevailing one in the federal Constitution. And that’s that if there’s a secular purpose, and it does not have a primary or principal effect of either advancing or inhibiting religion, and does not foster excessive governmental entanglements, an issue like this would pass federal Constitutional muster. Our opinion is, is that, we don’t see a problem with the federal Constitution. We’re fairly confident in that opinion. The state Constitution … MAN’S VOICE (VREELAND?): … is more problematic. BRIAN RICE: … Article 13, Section 2 is more problematic. There’s been, Ann, what? Four cases? ANN WALTHER: Three. BRIAN RICE: Three cases. ANN WALTHER: Three cases that have ever been decided under that article. All of them have actually gone the way of the government, but none of them are even close to what our issue would be here. One case was in the ‘70s, and the other two cases were in the ‘90s. And I’ve pretty well laid them out in the memo. The last case is the Stark case, and that one seemed to apply … although if you look at the original case from 1970, which was the first case that ever interpreted Article 13, Section 2. There the court was very clear to say that they believe or they interpret our Constitution to be—quote—substantially more restrictive than the federal Constitution. But then the Stark case which was in the 1990s applied the federal establishment standard, which is the standard that we think clearly won’t be much of an issue. MAN’S VOICE (VREELAND?): Mmm-hmm. ANN WALTHER: And since the only case law that apply … or the only cases that we have are the three cases, it’s hard to give an iron-clad opinion and a survey of case law under [?] such specific language in our Constitution. All that we can say is that the three cases that have been decided, came down on the side of the government. And because we’re dealing with football, which is a secular purpose, we do think that it should pass Minnesota Constitutional muster. And again, getting back to that ‘70s, that 1970 case, which involved bussing. The … what the court said was, we take no position on whether direct aid to parochial schools for the immediate health and safety of students, which was [?] considered bussing. They also added into that medical, dental, nursing services and perhaps school lunches. And then this is the language: stands on a different footing from subsidies which goes to the heart of the learning process. So, again, there isn’t a lot of case law. It’s hard to make … SCOTT VREELAND: Right. ANN WALTHER: … an assumption of [?] what we say, but football doesn’t go to the heart of the parochial learning process. SCOTT VREELAND: Well, let me ask two things that that might hinge on. One is that in our agreement, graduation can’t occur on the football field. BRIAN RICE: Well, we have it written out … SCOTT VREELAND: It has to be recreation … ANN WALTHER: Yes. BRIAN RICE: Or athletic. SCOTT VREELAND: Or athletic. ANN WALTHER: Right, right. SCOTT VREELAND: So graduation can’t occur. BRIAN RICE: Right. Under this agreement. JON OLSON: They have a beautiful ceremony at the basilica. … [unintelligible] standing invitation [?]. SCOTT VREELAND: Which, which … I mean, which would be a different category. The other question is, what’s the value of the land? What’s the value of the deal? And how do you … I mean, you know, as a park commissioner, I have to look at, what are the advantages and disadvantages of doing this? Have we quantified any of this in a way that I can talk to my constituents and say, this is what we’re getting for … DON SIGGELKOW: I think it’s hard to quantify for two reasons. One, we didn’t have the outlay. The Met Council provided the funding. So that creates a complication. It’s not Minneapolis taxpayer dollars; it’s Met Council. So that’s why … I think that they have to go back and get the answer, from them. SCOTT VREELAND: Could we get the land appraised? I mean … DON SIGGELKOW: I’m sure we could. It would be of [a?] limited use. SCOTT VREELAND: Right. DON SIGGELKOW: It’s [as?] open space. So I don’t know … JON OLSON: Couldn’t build a thirty-nine story condo. You know. SCOTT VREELAND: Right. Right. DON SIGGELKOW: It’s … I think when … you know, and it’s a difficult question because of the limited use of that property, as to what the real value is. And having been in a position where we’ve acquired property at market value for athletic purposes, it’s hard to swallow but you have to do it. Because if you want the purpose, you have to pay it. But, you know, I think the … there’s two ways to look at this. One is the value of the land and how much the value of this benefit that we’re receiving is. And if you purely go by the hourly rate—I [don’t?] know what we’d normally charge for a field of this type—I don’t think that’s the appropriate way to measure it. There’s a two million dollar investment, plus—two plus million [unintelligible] two million dollars—being put into this facility that taxpayers are having a cost avoidance on. So they get to utilize the facility which they had no costs [unintelligible] at all. That’s one way to look at it. BOB FINE: In other words, how much are we getting a benefit for … getting 350 hours of use of the land [unintelligible], building, and all this other … parking lots … DON SIGGELKOW: And the gym. Gym’s another [unintelligible] … BOB FINE: [unintelligible] SCOTT VREELAND: But if the 350 hours is too much and the fields aren’t … are only going to take half of that. I mean, you know … BOB FINE: If we’re only getting 100 hours … SCOTT VREELAND: Right. BOB FINE: … we’re getting something. SCOTT VREELAND: Right. BOB FINE: We’re not using the land for anything. I don’t see people camped out on the land anytime I’ve been there. DON SIGGELKOW: I think a comparable … [Vreeland looks at his watch] … [if the?] Met Council had said when they purchased that property, you’re putting tennis courts and trees on that, are we getting the benefit for that? I think that would be a pretty [?] difficult question to answer. SCOTT VREELAND: Right. DON SIGGELKOW: It’s a recreational purpose. SCOTT VREELAND: Right. DON SIGGELKOW: That’s what we do. It’s a part of our mission. SCOTT VREELAND: Well, I … I … want to let other folks do this. Grove Street: the closure is not us. TRACY NORDSTROM: City. The HPC and the city… SCOTT VREELAND: We do have that authority, but it’s not us. WOMAN’S VOICE (NORDSTROM?): Yes. [unintelligible] BRIAN RICE: Well, I think that we concluded on this that Grove Street was still a city street. There was some argument initially when we got into this whether the transfer with the public housing authority, HRA, [and?] the park board included the streets or not. I think early on we concluded that Grove Street was still a city street. So they’d have to vacate it, by a … SCOTT VREELAND: But we … we … we have the authority to do it. JUDD REITKERK: We have to consent. TRACY NORDSTROM: And will the … JUDD REITKERK: We can’t vacate it. BRIAN RICE: We couldn’t vacate this street, ‘cause I think the theory is that DeLaSalle has the other side of the street. JON OLSON: Yeah, it’s gotta be the two adjacent properties: us and DeLaSalle. SCOTT VREELAND: I just, you know, reading our authority to close streets [unintelligible] close streets … BRIAN RICE: We have the authority if it was a park street. But we don’t, since we don’t have DeLaSalle’s land, that’s not a street that we maintain. It’s a city street that’s maintained. Although we paid to repave it. I mean, the best that I know, the City is still asserting jurisdiction over Grove Street, in that their … it’s their street and their vacation. ANNIE YOUNG: And the council has not taken any … MAN’S VOICE: No. BRIAN RICE: That’s one of our conditions … ANNIE YOUNG: They’ve only got the recommendation from the [unintelligible} … BRIAN RICE: Right. One of the conditions precedent to this agreement is that DeLaSalle can get the city council to vacate, or that they can get access to Grove Street. SCOTT VREELAND: And just one thing that I think would be helpful is if we actually talked about the scheduling. I mean, ‘cause we’re entering this major agreement, perhaps, and I would just love to have some conversations. I have no idea when who is going to be where. I mean, I know there’s football … I know there’s seasons. But I’m sure that there’s at least been some conversation about, you know, summer [?] times … Give me a schedule to look at … And I would … JON GURBAN: We’d be happy to give you a schedule to look at, but scheduling is typically done [unintelligible] … SCOTT VREELAND: No, no, but I just want to know the ba— you know… summer, winter … VOICE (ANNIE YOUNG?): You mean construction? SCOTT VREELAND: No, no. For use … JON OLSON: Use. They can get you just an idea. I mean obviously, until it’s built … SCOTT VREELAND: Yeah. I had never seen any of that. JON OLSON: How we plan to use it, how we plan to share the use time. Yeah. SCOTT VREELAND [?]: And I know that it’s a staff function. JON OLSON: Yeah, but they can get you a report. Sure. Any other questions, Commissioner Vreeland? SCOTT VREELAND: I mean, the one question I … I mean … Is the summer all ours? I mean, I just don’t know … BRIAN RICE: The agreement says the scheduling, primarily during the school year will be DeLaSalle and primarily during the summer will be the park board. SCOTT VREELAND: That’s helpful. I’ve never heard that. BRIAN RICE: That was probably, Commissioner Vreeland, from the … I’d given you an earlier, earlier draft. This last one says the use should be approximately equal, and that the school year is primarily DeLaSalle’s to schedule. The summer is primarily the park board. There’d be a joint board consisted of appointees by the superintendent and the headmaster at DeLaSalle, and that joint board would do the scheduling by mutual agreement. TRACY NORDSTROM: Can I follow up just on that? The … presumably during the football season … does DeLaSalle have a girls’ football team? MAN’S VOICE: Not yet. BOB FINE: Soccer. TRACY NORDSTROM: OK. So it’s primarily boys who are going to be using it. JON OLSON: They’re working on a girls football team. There aren’t enough girls interested. [laughs] TRACY NORDSTROM: And then during the summer months, just for staff, like if we can get some scheduling for this, what … what types of activities would be on the football field. ‘Cause park board … I remember back to my flag football days. We played in the “crisp autumn.” We played in October and November. And it doesn’t sound like with the use availability, the park board football type program’s going to be able to access that field. DON SIGGELKOW: No, it’d be soccer. VOICE: It’s designed for … VOICE (MARY MERRILL ANDERSON?): Soccer as well as for football. TRACY NORDSTROM: So it’d be predominately soccer in the fall. DON SIGGELKOW: Yes. TRACY NORDSTROM: And then what about the summer months? DON SIGGELKOW: I’m sorry. Summer months would be soccer for us. TRACY NORDSTROM: And that’s … usually when they’re … I … I … my kids are just starting all this … and we didn’t play soccer back in the ‘70s when I was a kid, so … It hadn’t been invented yet. [general laughter] Anyway, I was just an infant. [more laughter]. So the summer months would be predominately soccer programs. DON SIGGELKOW: Yes. TRACY NORDSTROM: And that … do we have … is there … is there … presumably the park programs that will be used there will be predominately kids in that part of town in the way that neighborhood parks … MAN’S VOICE: No. MAN’S VOICE (GURBAN?): Not exclusively. JON OLSON: I would think there’d be kids from all over the city [unintelligible]. I mean it’s going to be a really nice facility. JON GURBAN: Just like the Neiman complex. Kids from all over the city benefit from that. We believe we can provide plenty of benefit to the kids of this city at the DeLaSalle site as well. So it’ll be for everybody. TRACY NORDSTROM: And then, my only main, other main question, I know we’re running out of time, is to kind of get my brain wrapped around the procedure here as we move forward. I know Commissioner Young has talked about what the sort of hurry-up to approve this RUA from our standpoint is. Because it’s my understanding there are lots of other agencies, whether it’s Met Council, Heritage Preservation Commission, City of Minneapolis … I don’t know, who else has to weigh in on this? What is going to happen over the next month, and how much of THEIR information … It seems to me prudent that we as a body take in as MUCH outside information on this as we possibly can. And what is set in stone about the March decision, if somebody can just explain to me how this works. And who’s also going to weigh in on this, and what other factors we need to be looking at and thinking about. MAN’S VOICE (BRIAN RICE?): Commissioner Nordstrom … JON OLSON: I asked for the dates, that this session be held today, the February 15, the committee action, and then March 1 [unintelligible] full board. So that was, that was, what I had asked staff to put together and our attorneys. We’ve been working on this issue for quite a long time now. And it’s just getting to the point where, we’ve got to keep moving forward. And they do a lot of other agencies. And they will have to go to the Met Council. But I think it would be unfair to send them out to the Met Council and say, Oh we want to do this on Nicollet Island. And [unintelligible] do you have a reciprocal use agreement or an agreement with the park board? Well, no. Well, go back and get it, then come back and see us. I — TRACY NORDSTROM: And are we sure that’s the … I mean, are you sure? I mean, I’m new at this … JON OLSON: Yeah, well I think it’s appropriate. TRACY NORDSTROM: … so I’m putting my naiveté right out there, to let you know. JON OLSON: Well, it’s like … TRACY NORDSTROM: Because the Met Council having the original agreement, they wouldn’t be one of the first people to weigh in on it? JON OLSON: No, they would want to know that … that—and I’ve talked to Met Council folks—that they have an agreement that they can bring to the Met Council. And I’m sure the Met Council I’m sure will want to review the agreement that we made, and then make the decision based on that, whether or not to let them proceed or not. So I think that it’s only appropriate that they would have something in hand to … TOM NORDYKE: I think with regard to what you’re asking about too about some of these other approvals, it’s a little bit of a domino effect. If we put the thing off six months, then everything goes off six months. So they probably don’t have that kind of schedule [unintelligible]. MARY MERRILL ANDERSON: And I think that one thing is that, everything that do is still subject to … you know, if, for instance, there are some approval up the line that doesn’t happen, then ... then we’re still subject to that … them not have … they are still … we would not able to … or that … we’re subject to any of the other approvals. So if some other board, the Met Council doesn’t approve it, then it doesn’t matter that we’ve approved it. It goes away. TRACY NORDSTROM: So I guess … brought up … what other agencies are involved? We have Met Council, we have city council with [unintelligible] HPC prior approval for the closure of the road and the fact that it is in a historic district. Planning. Well, planning and HPC would be come before a city council action. Right? OK. Who else? We’ve got Met Council and City Council. Are— BRIAN RICE: You probably’ll need the state Department of Finance to give a release. They have a restriction on it. But that’s kind of the Met Coun— TRACY NORDSTROM: Because of the connection with Met Council and open space … BRIAN RICE: Yes. But I think there’s probably two, two separate approvals there, the Met Council and the state. And I would say at that level, you’ll probably also run into this Constitutional issue. I’m sure the Met Council lawyers and the state Attorney General’s office ultimately will probably weigh in on whether this is somehow an aid to a sectarian school … TRACY NORDSTROM: And how about SHPO? Is SHPO involved? State Historic Preservation Office? BRIAN RICE: I don’t think SHPO would be, directly. They can be part of the HPC process. JON GURBAN: Through the St. Anthony Heritage … [unintelligible] JON OLSON: They can comment, but they’re not a governing body. MAN’S VOICE: Yeah, that’s right. JON OLSON: They won’t be able to say, no, this project [unintelligible]. TRACY NORDSTROM: But my question is … JON OLSON: But they can comment. TRACY NORDSTROM: Okay, but that’s my question then, is how much of this information ... I understand sort of the sequence, well, I’m trying to understand the sequencing of this. You know, it might be useful, if the HPC is going to say, this is an historic road in an historic district, and the St. Anthony Falls Heritage Board has some pretty strong reservations about it, I personally think that should be part of our decision-making process. So I’m in my own mind trying to figure out, make sure we don’t put the cart before the horse, and how much is us putting the cart before the horse influencing them, and vice versa? And I want this to be as open and logical a discussion and I want … and I understand the sort of tug and pull of time limits and so on, but I want to make sure that we as a body, as a policy body, have as much information in terms of the impact on the district—it’s in an historic district—the river, the environmental impacts, the neighbors, the students and constituents at the school, all of these things, the city of Minneapolis, open space, Met Council, state, historic …it’s very complicated to me. JON OLSON: All those agencies … I mean, this information has been out, a lot of it, for over a year, and a lot of those agencies have already commented, and if they’re not aware of the project going on then they’re living in another state. [some laughter] So I think, the information’s out there, and if people want to send comments [unintelligible] some of them have. DON SIGGELKOW: [unintelligible] a project. It’s the EAW. And the city went through that process, and there’s a [unintelligible]… BRIAN RICE: There exists a record. DON SIGGELKOW: … and we can get that for you. ANNIE YOUNG: But then you have a body you approved an EAW where there were some questions about the testimony that was given in the EAW, such as the National Park Service. BRIAN RICE: Right, and I think on that point, Commissioner, this is a record of submissions in the EAW. And all the constitutional records were raised, the HPC, preservation, view shed, all of those things. And those are all legitimate issues for you as elected officials, park commissioners, to weigh into your consideration. The constitutional issue is now a more recent one. Mr. Clegg raised it, the ACLU. Um, I think it is … it is somewhat a chicken-and-the-egg process, and I think certainly as commissioners that without getting these resolved or if there’s doubts in your mind about the wisdom of proceeding in a historic district, or some of the other things, I think that’s judgment you have to make, and I mean, that’s certainly within your discretion as a public official to make a call on that, and say I just don’t feel comfortable here with [?] what I know. And at some point that, again, where does it start and end? I would say that the board in August—the process that you’re asking, Commissioner Nordstrom—passed, held off acting, said we need to do an EAW first, and at that point we’ll consider a reciprocal use agreement. So at least the sequencing I think was done by your predecessor board in August, when we said we’re going to do an EAW, then we’ll look at it again. So maybe this board’s going to say we’re still not ready to act. JON OLSON: We are going to need to break here in just a moment, but I wanted to see if Commissioner Merrill Anderson had a question. MARY MERRILL ANDERSON: I just have one general question. It really is more about the design. And as we talk about the schematic design, and talked about being able to approve the design in committee on the 15th and then on the first, how … how final is that design, and how much room is room is there for more conversation around design? DON SIGGELKOW: I think Judd’s probably the best to answer that, but there was extensive review of that by the Citizens Advisory Committee, and our public information director advised me it’s all on the website. [unintelligible] MARY MERRILL ANDERSON: I saw it. I read it. I still just want to know how much room is there for additional conversation about design. JUDD REITKERK: I think that one of your questions would be that the board did recommend that be the design to be used as a basis for evaluating the EAW. MARY MERRILL ANDERSON: This a schematic or final design? JUDD REITKERK: It’s a schematic design. But the board did review it, and that’s the design they recommended based upon the Citizens Advisory Committee. If there’s something in particular, we could discuss it with them. You know, I don’t know what the issue would be. MARY MERRILL ANDERSON: I just have all kinds of … you know I’m a very creative person. [laughter] BRIAN RICE: Commissioner, I think … under … Commissioner Nor— … Commissioner Anderson, under 5.12, the issue is, is kind of “final plans.” I mean, at this point it’s contemplated in the agreement that that’s a staff function. If the board wants to change that, and you want to look at it again, that’s your right, as commissioners, if you want to part of the agreement, and say you want to have the final, final vote. [shrugs] Tough [unintelligible]. [JON OLSON leaves room] MARY MERRILL ANDERSON: No [unintelligible]. JON GURBAN: If there’s an issue, we do have the landscape architect here today, and he could chat with you briefly and set up a meeting for that. I think that would work very well. MARY MERRILL ANDERSON: Thank you. ANNIE YOUNG: That was my question before Olson left us, is do we have more questions, and are we going to need another study session? Like between planning committee and the full board decision, or I mean, do you … TOM NORDYKE: Well, I certainly don’t have more. [general laughter] ANNIE YOUNG: But I was wondering if we are going to have more between now and then. And … I mean this is very helpful for us to have … TRACY NORDSTROM: I have a lot of questions. I do. And Scott has diagrams. So … JON GURBAN: And may I add … Why don’t you get to the next spot, which is February 15th in those committee meetings. Let’s see what information comes out in the discussion of the committee meetings, and if we need another session at that time, it’d be appropriate to move it at that time, and we have enough time between the committee and the full board. TOM NORDYKE: So we can continue the discussion in that committee … JON GURBAN: Yes. TOM NORDYKE: … and the environment [?] of that would be [unintelligible] JON GURBAN: Yes. MARY MERRILL ANDERSON: I can certainly see that conversation. Isn’t it possible for Commissioner Vreeland and Commissioner Nordstrom, if they have additional questions prior to the planning meeting, that they could certainly … JON GURBAN: They can always contact us and we can retrieve that information or look into those issues. And that’s available to you anytime … TOM NORDYKE: Sure. JON GURBAN: … but certainly at those committee meetings, that’s the purpose of the committee meetings, is to have broad-based discussion. The purpose of the meeting tonight is to get everybody up to speed, particularly the new commissioners, on what’s happened and hear some of your concerns, which we have. SCOTT VREELAND: I do have two questions that, you know, might be too late for that committee meeting, and that is: Has the ’83 agreement been … or, has that agreement been met by the current football field? Is that … has that … [unintelligible] BRIAN RICE: Well, I think one of the things … SCOTT VREELAND: You don’t have to answer these. It’s just, I’m trying to say them. JON GURBAN: We’ll identify that issue, and yes, we’ll wait to answer that. SCOTT VREELAND: And the other one was the … we hired an attorney to read the ’83 Agreement and he came to an opinion. I’ve read that opinion. But there were a lot of caveats in that. TOM NORDYKE: Who was that? [unintelligible] SEVERAL VOICES: Michael Norton. TOM NORDYKE: [unintelligible] SCOTT VREELAND: And I just hate going into something with blank spaces. That wasn’t a complete opinion. JON GURBAN: Let … that would be good for you and Don and I to meet on. SCOTT VREELAND: Yeah, so what are the holes that he didn’t look at. JON GURBAN: Yes. Yes. CAROL KUMMER: I just want to make a comment, mainly to Commissioner Nordstrom, about Metro Parks and Open Space. Seeing there is much made of that this is a violation of the regional park system. Well, everything on that island is a violation of open space, or the regional park … MAN’S VOICE: … of the regional park system. CAROL KUMMER: Yes, yes. And the other thing I’ve noticed: I have never seen a sign down there that identifies Nicollet Island as a regional park. Has anybody else? Is there one there that I’ve missed? [laughs] It’s a … it’s … JON GURBAN: It was there but it was stolen. [general laughter] CAROL KUMMER: I mean even in one of these documents, it says that the … letting residents live in homes violated open space funding rules. And then, further on—and Arne Stefferud’s been there since the dawn of time—says that he wasn’t even aware that there were tennis courts there, and that use is iffy. So let me assure you there is going to be EXTENSIVE discussion at the Met Council and the Parks and Open Space when this does get to them. TRACY NORDSTROM: And do you know when that happens? Do you know … CAROL KUMMER: I have no idea. I suppose whenever … but we can find out, ‘cause I certainly am planning [?] to be there. BRIAN RICE: I think that’s probably DeLaSalle’s … JON OLSON: Yeah, that is after approvals go [?] and the question raised earlier on the seat [?]. SCOTT VREELAND: I just wanted to thank staff and fellow commissioners for spending this time. It’s very helpful for me. [end of study session] 1