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Re: Re: community_garden digest, Vol 1 #1808 - 5 msgs (leases)

  • Subject: Re: [cg] Re: community_garden digest, Vol 1 #1808 - 5 msgs (leases)
  • From: Sharon Kahkonen <sjkay@twcny.rr.com>
  • Date: Mon, 24 May 2004 15:11:03 -0400


On May 24, 2004, at 12:17 PM, Jack Hale wrote:


Hi-
Attached is the one formal agreement we have with a private organization for
use of land for a community garden. All the rest are handshakes or a notch
above. I think the lawyers got a little too heavily involved in this one,
but it gives them something to do, and we managed to get them to delete some
of their more radical ideas. One thing, you probably shouldn't and needn't
be talking about a lease per se. I'm not a lawyer, but my understanding is
that leases by definition and regardless of their specific language confer a
kind of temporary but proscribed ownership, more than you are likely looking
for. That's why this one is called a license agreement.
For what it's worth, I have also included a list of license agreement
elements, which I submitted to these folks before they turned their lawyers
loose on it.
I will be interested to see what you come up with.
JH


Jack N. Hale
Executive Director
Knox Parks Foundation
75 Laurel Street
Hartford, CT 06106
860/951-7694
f860/951-7244
======================================================================= =====
=================
LICENSE AGREEMENT


This license agreement is made between Southside Institutions Neighborhood
Alliance Inc., (SINA), of 400 Washington Street, Hartford, Connecticut
06106, herein called Licensor, and The Knox Parks Foundation, Inc., of 75
Laurel Street, Hartford, Connecticut 06106, herein called Licensee


Licensor hereby licenses to Licensee the premises situated in the City of
Hartford, County of Hartford, State of Connecticut, described as 22-24
School Street, (the "premises") upon the following TERMS and CONDITIONS:


1. Term and Payment. The term of the Agreement shall be for one (1) year,
commencing January 1, 2002, and terminating on December 31, 2002, or sooner
as provided herein at the annual rental of One and 00/100 Dollars ($1.00),
payable in equal installments in advance on the first day of the calendar
year during the term of this Agreement. All license payments shall be made
to Licensor, at the address specified above. Total rental payment for the
lease period will be One 00/100 Dollars ($1.00).


(a) The term of this Agreement may be extended at Licensee's option for up
to three (3) additional periods of one (1) year each, at the license fee and
upon all of the other terms and conditions set as forth in this Agreement;
provided, however, that Licensee give Licensor written notice of its option
to so extend this Agreement at least six (6) months prior to the date upon
which this Agreement would otherwise terminate. In the event that Licensee
fails to timely exercise any of its successive options to renew this
Agreement, time being of the essence, any remaining options shall be null,
void and of no force or effect and Licensee shall promptly, upon request of
Licensor, deliver to Licensor a waiver in recordable form of any remaining
renewal options. If Licensor requires the use of premises for other
purposes, Licensor shall have the right to terminate this Agreement upon not
less than seven (7) months prior written notice.


2. Use. At all times during the term of any extended terms, Licensee shall
use and occupy the premises for a neighborhood community garden program for
students, parents, and teachers from the Learning Corridor schools; and
students, teachers, and staff from Trinity College; and residents and staff
from Fox Housing; and student, teachers, staff and other participants from
the IOL/Grow Program; and neighborhood residents. The premises shall be
used for no other purpose.


3. Care and Maintenance of Premises. Licensee acknowledges that the
premises are licensed on an as is basis, unless otherwise indicated herein.
Licensor makes no representation whatsoever as to the condition of the
premises or the suitability of the premises for Licensee's intended use.
Licensee shall at its sole expense and within a reasonable period of time
following the execution and delivery of this Agreement perform the work
described in Schedule A attached hereto (the "Licensee Work"), in addition
to any other work required to put the premises in suitable condition for
Licensee's intended use.


(a) Licensee shall, at its own expense and at all times, maintain the
premises in good and safe condition, including without limitation all raised
beds, fences, and other garden amenities, water service equipment and any
other system or equipment upon the premises and shall at Licensor's option
remove said items upon the termination of the Agreement. Licensee shall, at
the termination of the Agreement return the premises, include the Licensee
Work, in good condition. Licensee shall be responsible for all repairs
required during the term of this Agreement. Licensor shall not be required
to furnish any services or facilities or to make any improvements, repairs
or alternations in or to the premises during the term of this Agreement.


(b) Licensee shall supervise the use of the premises. Licensee shall be
responsible for ensuring that the gardens at the premises will be used to
grow vegetables, fruit, herbs and other plants for production, educational
and esthetic purposes. Licensee shall provide assistance to gardeners and
ensure that reasonable rules and policies for use of the premises by
gardeners are enforced, and that gardeners are responsible for maintaining
personal and common areas and for keeping the garden neat and orderly.
Licensee's use of the premises shall be year round.


(c) On the last day of the term of this Agreement, Licensee shall quit and
surrender the premises, including the Licensee Work and all other
improvements made by Licensee, in good condition and repair.


4. Alterations. Licensee shall not, without first obtaining the written
consent of Licensor, make any permanent alterations, additions, or
improvements, in, to or about the premises. Any and all improvements to the
premises which are not required to be removed at the end of the term of this
Agreement shall become property of Licensor. Such improvement shall include
the additions of electrical, plumbing, walls, fences, trees and shrubs.


(a) Licensee may, at its option and at its own cost and expense, at any time
and from time to time upon reasonable notice to Licensor, make such
non-structural alterations to the premises, as it may deem desirable,
provided that the cost in the aggregate does not exceed Twenty Thousand and
00/100 Dollars ($20,000.00), and further , provided that Licensee complies
with the provisions of Section 5 below.


5. Ordinances and Statutes. Licensee shall during the term of this
Agreement, comply with all statutes, ordinances and requirements of all
municipal, state and federal authorities now in force, or which may
hereafter be in force, pertaining to the premises, occasioned by the use
thereof by Licensee, including, without limitation, any environmental and
hazardous waste laws, rules and regulations, and Licensee shall pay all
costs, expenses, liabilities, losses, damages, fines, penalties, claims and
demands, including reasonable counsel fees, that may in any manner arise out
of or be imposed because of the failure of Licensee to comply with the
covenants of this Section 5.


6. Covenant Against Liens. If, because of any act or omission by Licensee,
any mechanic's lien or other lien, charge or order for the payment of money
shall be filed against Licensor or any portion of the premises, Licensee
shall, at its own cost and expense, cause the same to be discharged of
record or bonded within ninety (90) days after written notice from Licensor
to Licensee of the filing thereof; and Licensee shall indemnify and save
harmless Licensor against and from all costs, liabilities, suits,
penalties, claims and demands, including reasonable counsel fees, resulting
therefrom.


7. Assignment. Licensee shall not assign this License Agreement or permit
any portion of the premises to be used by any third party other than as
expressly set forth in ?2 above without the prior written consent of
Licensor. Any such assignment or unpermitted use without Licensor's consent
shall be void. In the event of any such purported assignment or unpermitted
third party use, Licensor may, at its option, terminate this License
Agreement upon written notice to Licensee.


8. Signs. Licensee shall have the right to install, maintain and replace
in, on or over or in front of the premises such signs as may be approved by
Licensor in writing, provided that any such sign fully complies with all
applicable laws.


9. Utilities. All applications and connections for necessary utility
services on the premises shall be made in the name of Licensee only, and
Licensee shall be solely liable for utility charges as they become due,
including those, if applicable, for sewer, water, gas, electricity, and
telephone services.


10. Entry and Inspection. Licensee shall permit Licensor or Licensor's
agents to enter upon the premises at reasonable times and upon reasonable
notice, for the purpose of inspecting the same, and will permit Licensor at
any time within sixty (60) days prior to the expiration of this Agreement,
to place upon the premises any usual "To Let ", "For Lease " or "For Sale"
signs, and permit persons desiring to lease the same to inspect the premises
thereafter.11. Possession. If Licensor is unable to deliver possession of
the premises at the commencement hereof, Licensor shall not be liable for
any damage caused thereby, nor shall this Agreement be void or void able,
but Licensee shall not be liable for any license fee until possession is
delivered. Licensee may terminate this Agreement if possession is not
delivered within ten (10) days of the commencement of the term hereof.


11. Indemnification of Licensor. Licensor shall not be liable for any
damage or injury to Licensee or any other person, or to any property,
occurring on the premises or any part thereof, and Licensee agrees to hold
Licensor harmless from any claims for damages, no matter how caused.


(a) Licensee shall indemnify and save harmless Licensor from and against any
and all liability, damage, penalties or judgment arising from injury to
person or property sustained by anyone on the premises. Licensee shall, at
its own cost and expense, defend any and all suits or actions (just or
unjust) which may be brought against the Licensor or in which Licensor may
be impleaded with others upon any such above-mentioned matter, claim or
claims, except as may result from the acts set forth in paragraph (b) of
this Section 12.


(b) Except for its affirmative acts or gross negligence or the affirmative
acts or gross negligence of its officers, agents, servants, employees or
contractors, Licensor shall not be responsible or liable for any damage or
injury to any property, fixtures, buildings or other improvements, or to any
person or persons, at any time on the premises, including any damage or
injury to Licensee or to any of Licensee's officers, agents, servants,
employees, contractors, customers, gardeners or sublessees.


12. Insurance. Licensee shall provide at its expense, and keep in force
during the term of this Agreement, Commercial General Liability Insurance
covering the premises, issued by a good and solvent insurance company or
companies licensed to do business in the State of Connecticut, selected by
Licensee, and satisfactory to Licensor. Such policy or policies shall be in
an amount of not less than $2,000,000 or such higher amounts as may be
reasonably required by Licensor from time to time include Licensor and any
mortgagee of the premises as insureds. Licensee agrees to deliver
certificates of such insurance to Licensor at the beginning of the term of
this Agreement and thereafter not less than thirty (30) days prior to the
expiration of such policy. Such insurance shall be noncancellable without
thirty (30) days' written notice to Licensor, and to each such mortgagee.
(a) During the term of this Agreement, Licensee shall keep all improvements
on the Premises at any time insured for the benefit of Licensor and any such
mortgagee as their respective interests may appear, against loss or damage
by fire and customary Special Form ("all risk") coverage in a minimum amount
necessary to avoid the effect of co-insurance provisions of the applicable
policies. All such policies or certificates thereof, shall be held by
Licensor or its mortgagee. All proceeds payable at any time and from time
to time by any insurance company under such policies shall be payable to
such mortgagee, if any, or, if none, to Licensor. Licensee shall not be
entitled to, and shall have no interest in, such proceeds or any part
thereof. Any proceeds paid to Licensor shall be made available to Licensee
for the repair or restoration of such improvements, provided Licensee is not
in default of this Agreement. Licensee shall at Licensee's cost and
expense, cooperate fully with Licensor in order to obtain the largest
possible recovery and execute any and all consents and other instruments and
take all other actions necessary or desirable in order to effectuate the
same and to cause such proceeds to be paid as hereinbefore provided. At
Licensor's sole option, Licensor may elect to maintain the insurance
required except pursuant to this Section 13(a), and in such event Licensee
shall promptly reimburse Licensor
13. Eminent Domain. If the premises or any part thereof or any estate
therein materially affecting Licensee's use of the premises, shall be taken
by eminent domain, this Agreement shall terminate on the date when title
vests pursuant to such taking. The rent, and any additional rent, shall be
apportioned as of the termination date, and any rent paid for any period
beyond that date shall be repaid to Licensee. Licensee shall not be
entitled to any part of the award for such taking or any payment in lieu
thereof but shall be entitled to make a separate claim for moving expenses.


14. Destruction of Premises. In the event of a partial destruction of the
premises during the term hereof, from any cause, Licensee shall forthwith
repair the same, provided that such repairs can be made within sixty (60)
days under existing governmental laws and regulations, but such partial
destruction shall not terminate this lease, except that Licensee shall be
entitled to a proportionate reduction of rent while such repairs are being
made, based upon the extent to which the making of such repairs shall
interfere with the business of Licensee on the premises. If such repairs
cannot be made within said sixty (60) days, Licensor, at his option, may
make the same within a reasonable time, this lease continuing in effect with
the rent proportionately abated as aforesaid, and in the event that Licensor
shall not elect to make such repairs which cannot be made within sixty (60)
days, this lease may be terminated at the option of either party. In the
event that the building in which the demised premises may be situated is
destroyed to an extent of not less than one-third of the replacement costs
thereof, Licensor may elect to terminate this lease whether the demised
premises be injured or not. A total destruction of the premises shall
terminate this lease..


15. Quiet Enjoyment. Licensee, upon paying the license fees and all other
sums and charges to be paid by it as herein provided, and observing and
keeping all covenants and conditions of this Agreement on its part to be
kept, shall quietly have and enjoy the premises during the term of this
Agreement, without hindrance or molestation by Licensor or anyone claiming
through Licensor.


16. Licensor's Remedies on Default. If Licensee defaults in the payment of
any license fees, or any other amounts due hereunder, or defaults in the
performance of any of the other covenants or conditions hereof, then in
addition to any other legal or equitable remedy available to Licensor,
Licensor may give Licensee notice of such default and if Licensee does not
cure any such default within thirty (30) days after the giving of such
notice (or if such other default is of such nature that it cannot be
completely cured within such period, if Licensee does not commence such
curing within such forty-five (45) days and thereafter proceeds with
reasonable diligence and in good faith to cure such default), then Licensor
may terminate this Agreement on not less than thirty (30) days' notice to
Licensee. On the date specified in such notice the term of this Agreement
shall terminate, and Licensee shall then quit and surrender the premises to
Licensor, but Licensee shall remain liable as hereinafter provided. If this
Agreement shall have been so terminated by Licensor, Licensor may at any
time thereafter resume possession of the premises by any lawful means and
remove Licensee or other occupants and their effects. No failure to enforce
any term shall be deemed a waiver.19. Force Majeure. In the event that
Licensor or Licensee shall delayed, hindered in or prevented from the
performance of any act required hereunder other than the payment of rent or
additional rent by reason of strikes, lock-outs, labor troubles, inability
to procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, the act, failure to act or default of the
other party, war or other reason beyond their control, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.


17. Attorney's Fees. In case suit should be brought for recovery of the
premises, or for any sum due hereunder, or because of any act which may
arise out of the possession of the premises, by either party, the prevailing
party shall be entitled to all costs incurred in connection with such
action, including a reasonable attorney's fee.


18. Waiver.  No failure of Licensor to enforce any term hereof shall be
deemed to be a waiver.

19. Notices. Any notice which either party may or is required to give,
shall be given by mailing the same, postage prepaid, to Licensee at the
address specified above, or to Licensor at the address specified above, or
at such other places as may be designated by the parties from time to time.


20. Heirs, Assigns, Successors. This Agreement is binding upon and inures
to the benefit of the permitted, assigns and successors in interest to the
parties.


21. First Offer. Provided Licensee is not in default hereunder, in the
event that Licensor wishes to sell the premises during the term of this
Agreement, before entering into a purchase and sale agreement for the
premises with a third party, Licensor will offer to sell the premises to
Licensee at the price and otherwise on the terms and conditions acceptable
to Licensor (the "Offer"). If within thirty (30) days following Licensee's
receipt of the Offer, Licensee agrees in writing to purchase the premises on
the sale terms specified in the Offer by providing Licensor with a notice of
acceptance, Licensor and Licensee shall enter into a purchase and sale
agreement incorporating the terms of the Offer within thirty (30) days after
Licensor's receipt of Licensee's notice of acceptance. In the event
Licensee either rejects the Offer or fails to notify Licensor of its
acceptance of the same within the thirty (30) day period, Licensor may
freely sell the premises, provided, however, Licensor may not sell the
premises upon terms more favorable to a third party buyer than the terms set
forth in the Offer without first again offering the premises to Licensee
upon such more favorable terms.


22. Subordination.  This Agreement is and shall be subordinated to all
existing and future liens and encumbrances against the premises.

23. Governing Law. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State of
Connecticut.


24. Partial Invalidity. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance
shall, at any time or to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant,
condition and provision of this Agreement shall be valid and be enforced to
the fullest extent permitted by law.


25. Entire Agreement. No oral statement or prior written matter shall have
force or effect. Tenant agrees that it is not relying on any representation
or agreements other than those contained in this Agreement. This Agreement
shall not be modified or canceled except by a writing subscribed by all
parties.


26. Parties. Except as herein otherwise expressly provided, the covenants,
conditions and agreements contained in this Agreement shall bind and inure
to the benefit of Licensor and Licensee and their respective permitted
successors and assigns.


27. Limitation of Liability. Anything in this Agreement to the contrary
notwithstanding, Licensee agrees that it shall look solely to the estate and
property of Licensor in the premises, including any applicable insurance or
condemnation proceeds for the satisfaction of any claim against Licensor
arising out of this Agreement or the premises, and no other assets of
Licensor or its partners, members, agents or employees shall be subject to
levy, execution or other procedures for the satisfaction of Licensee's
remedies.


IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year above witness.


Signed, Sealed, and Delivered
In the presence of :				LICENSOR:
						SOUTHSIDE INSTITUTIONS NEIGHBORHOOD ALLIANCE INC.


By: Luis C. Caban Its Executive Director







LICENSEE:

THE KNOX PARK FOUNDATION, INC.


By: Jack N. Hale Its Executive Director





Here are elements for an agreement for use of SINA property. I sent you the
first 8 last year, and you created an agreement. A longer-term agreement
should include items 9 and up. Your lawyers will probably want to be
involved in drafting the specifics.
1. Use of the space will begin immediately.
2. It will extend for one year. We expect that the agreement will extend to
additional years providing that the space remains in use and is well
maintained and that SINA does not have immediate use for it for other
purposes.
3. Use of the space will be year round.
4. Use will include construction of raised beds, fences, and other garden
amenities, and installation of water service. All plans will be submitted
to SINA for approval prior to construction.
5. Knox will supervise the garden and name SINA as additional insured on our
liability insurance. Knox will hold SINA harmless for any mishap on the
site.
6. The space will be used by students, parents, and teachers from Learning
Corridor schools, Trinity students, teachers, and other staff, residents and
staff from Fox Housing, participants in the GROW Program at the Institute of
Living, and other residents of the neighborhood.
7. Gardeners will plant vegetables, fruit, herbs, and other plants for
production, education, and esthetic purposes. Part of the space may be used
for a gathering place or for other purposes compatible with the garden.
8. Gardeners will be responsible for maintaining personal and common areas
and for keeping the garden neat and orderly. Knox will provide assistance.
9. The agreement should renew automatically each year unless one party
objects.
10. The agreement may be terminated by either party. I recommend January 1
as the annual renewal/termination date
11. If SINA decides to sell the property, it will offer it to Knox first.
Maintenance responsibilities should be clear, particularly around snow
removal. If SINA does snow removal on the block, it would be great if the
work could extend to the garden. Knox can do it, but it would involve
transporting equipment to the site.


-----Original Message-----
From: community_garden-admin@mallorn.com
[mailto:community_garden-admin@mallorn.com]On Behalf Of Don Boekelheide
Sent: Saturday, May 22, 2004 8:05 PM
To: community_garden@mallorn.com
Subject: [cg] Re: community_garden digest, Vol 1 #1808 - 5 msgs

Hi, everyone,

I was standing in the rain today, watering my freshly
transplanted peppers. Only a gardener would understand
this...

Anyway, political/technical question. Does anyone have
a good model lease for a garden on privately held
land? I've looked everywhere, ACGA website, googled,
and haven't found what I need.

We've got a couple of guys here (a friend of mine
calls them 'the anarchists') who are intent on
starting a community garden on the vacant lot next
door to the house they rent. They know the owner and
she's willing, but we need a lease. Sure, we could
look for a pro-bono attorney, but figure that some
community gardener out there already has a better
model. Any leads?

Thanks in advance,

Don Boekelheide
Charlotte, NC

______________________________________________________
The American Community Gardening Association listserve is only one of ACGA's
services to community gardeners. To learn more about the ACGA and to find
out how to join, please go to http://www.communitygarden.org



To post an e-mail to the list: community_garden@mallorn.com


To subscribe, unsubscribe or change your subscription:
https://secure.mallorn.com/mailman/listinfo/community_garden


______________________________________________________
The American Community Gardening Association listserve is only one of ACGA's services to community gardeners. To learn more about the ACGA and to find out how to join, please go to http://www.communitygarden.org



To post an e-mail to the list: community_garden@mallorn.com


To subscribe, unsubscribe or change your subscription: https://secure.mallorn.com/mailman/listinfo/community_garden



______________________________________________________
The American Community Gardening Association listserve is only one of ACGA's services to community gardeners. To learn more about the ACGA and to find out how to join, please go to http://www.communitygarden.org


To post an e-mail to the list: community_garden@mallorn.com


To subscribe, unsubscribe or change your subscription: https://secure.mallorn.com/mailman/listinfo/community_garden





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