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HomeMy WebLinkAbout6C (9)G C (7) me m or and SOUTH B� Community & Economic Development',, 1865 1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021 To: South Bend Redevelopment Commission From: Jitin Kain, Senior CED Specialist Subject: Temporary Use Agreement for Unity Gardens at LaSalle Square Date: December 8, 2011 Unity Gardens, Inc., is a non - profit organization that strives to improve community health by connecting the community to locally grown produce. In addition to growing food throughout the county, Unity Gardens has developed educational curriculums designed to help people learn how to grow, harvest, preserve, prepare and eat fresh produce. Unity Gardens currently utilizes two adjacent parcels of land in the LaSalle Square area as community gardens. They have a one year revolving temporary use agreement with the Redevelopment Commission to use this land for the above stated purpose. Unity Gardens plans to expand the educational programs, add a second outdoor shelter and purchase a tool shed to store equipment within the next year. Additionally, Unity Gardens has received a Community Foundation matching grant in the amount of $15,000 to support their activities. Unity Gardens is asking the Redevelopment Commission to consider a new temporary use agreement which includes some relocating expenses if the garden has to be moved for a development project on the site. Staff requests approval of the attached temporary use agreement with a 5 year term and relocation expenses not to exceed $10,000 in the event that the garden has to be relocated for a development opportunity. What We Do Today Makes A Differencel TEMPORARY USE AND LICENSE AGREEMENT (Unity Gardens) THIS AGREEMENT, dated as of the day of , 2011, is made and entered into by and between the CITY OF SOUTH BEND, DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, acting by and through its South Bend Redevelopment Commission, a political subdivision of the State of Indiana (the "City ") and SARA STEWART UZELAC ( "Unity Gardens "). Recitals- WHEREAS, the City is the owner of the real estate located at the northeast corner of Ardmore Trail and Prast Boulevard, South Bend, Indiana, more particularly described and depicted in "Exhibit 1" (said property of the City being hereinafter referred to as the "Premises "), which is managed by the South Bend Redevelopment Commission; and WHEREAS, the Premises is being held by the City as part of its redevelopment efforts in the Airport Economic Development Area; and WHEREAS, Unity Gardens desires to design, construct, place and establish a community garden and related temporary structures on the Premises for the benefit of its members and the public (said garden being hereinafter referred to as the "Garden "); and WHEREAS, the City is willing to grant Unity Gardens a license to use the location shown in "Exhibit 1" for the site of the Garden until such time as the City needs the Premises for its redevelopment plans; NOW, THEREFORE, in consideration of the mutual promises contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City hereby permits and grants to Unity Gardens, subject to all encumbrances, covenants and easements to which the City's title may be subject, the right to use and occupy the Premises described in "Exhibit 1" for its Garden, subject to the City's right to terminate this Agreement as provided herein, upon the following terms and conditions: 1. Use of the Premises; Term. A. Unity Gardens shall use the Premises only for the placement, maintenance and removal of the Garden and for no other purpose without the prior written consent of the City, which consent may be withheld by the City in its sole discretion. Unity Gardens accepts the Premises in their current "as is" condition as suited for the placement, maintenance and removal of the Garden. B. The design, construction and placement of the Garden shall not interfere with the drainage basin located on the Premises. In that regard, a twenty (20) foot buffer around the full perimeter of the basin must be left free of plantings. The maintenance of the Garden shall be in accordance with all applicable laws, regulations, ordinances and other requirements of state and local governmental authorities. Any change in the design and construction of the Garden or in the use of the Premises shall require the prior written approval of the City. C. Unity Gardens shall, at its expense, ensure that the placement and maintenance of the Garden located on the Premises does not interfere in any way with the City's use of the Premises, or endanger persons or property of the City. D. Unity Gardens, or its officers, employees, agents or members shall not bring (or allow to be brought), deliver, store, use or apply on the Premises any inorganic or synthetic organic chemicals, which chemicals include, but are not limited to, soil stabilizers, plant fertilizers, pesticides, herbicides, or any other product used for garden plantings. However, Unity Gardens or its officers, employees, contractors or members may use any natural organic - based additives for garden plantings; provided that Unity Gardens obtains prior written approval from the City. E. The term of this Agreement shall commence upon the execution of this Agreement and continue through October 31, 2012. This Agreement shall be renewable, at the option of Unity Gardens, for four (4) successive twelve (12) month periods (November 1 through October 31), subject to the City's right to terminate this Agreement, as provided herein. F. Unity Gardens shall provide to the City a letter of community support evidencing acceptance of the Garden by the community and the community's willingness to participate in the placement and maintenance of the Garden. G. Unity Gardens acknowledges and is aware that several rights of way have been vacated on the Premises and various utilities may still remain in the vacated rights of way. Unity Gardens also acknowledges that there are several manholes located on the Premises which may be covered by topsoil and not readily identifiable. Unity Gardens shall be responsible for taking necessary steps to locate all utilities, including utilities owned by third parties, on the Premises. Unity Gardens, or its officers, employees, agents or members shall assume all responsibility for avoiding damage to any utilities located on the Premises. 2. Soil Testing. This Agreement shall be subject to Unity Gardens' right to conduct soil testing, at its expense, on the Premises to determine the suitability of the Premises to support the Garden. Should Unity Garden determine that, as a result of such soil testing, that the Premises are unsuitable to support the Garden, Unity Gardens shall have the option to terminate this Agreement, upon written notice to the City, as provided hereinafter, without further obligation to the City. 3. Corrective Measures. If Unity Gardens fails to take any corrective measures requested by the City in a timely manner, or if an emergency situation is presented which, in the -2- City's judgment, requires immediate action, the City, at Unity Gardens' expense, may undertake such corrective measures or actions as the City deems necessary or desirable. 4. Access. At all times during the term of this Agreement, the City reserves the right to enter the Premises to install, repair or maintain facilities, equipment and structures currently existing upon or to be located upon the Premises. 5. Site Improvements. A. The City reserves the right to relocate any portion of any facility or structure within the Garden if the City determines: (1) that it is necessary to modify, expand or rehabilitate any existing facility or structure, or to install any new facilities or structures at the Premises, or (2) to install, construct or maintain any improvements at the Premises. However, the City agrees to make a good faith attempt to work cooperatively with Unity Gardens to minimize any relocation activities and disruptions to the Garden. B. The City agrees that the water main tap, all related plumbing and the water meter providing water utility service to the Premises for the use of Unity Gardens shall remain during the term of this Agreement and any extension thereof. 6. Assumption of Risk. Unless caused solely by the negligence of the City or caused solely by the willful misconduct of the City, Unity Gardens hereby assumes all risk of damage to the Premises caused by or arising out of its use and occupation of the Premises; and Unity Gardens hereby indemnifies the City, its officials, employees and agents from and against any liability for such damage. 7. Liens, Unity Gardens will not permit any mechanic's liens or other liens to be placed upon the Premises, and nothing in this Agreement shall be construed as constituting the consent or request of the City, express or implied, to any person for the performance of any labor or the furnishing of any materials to the Premises, nor as giving Unity Gardens any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that could give rise to any mechanic's liens or other liens against the Premises. In the event that any such lien shall attach to the Premises, or Unity Gardens shall fail to pay such liens, then, in addition to any other right or remedy available to the City, the City may, but shall not be obligated to, discharge the same. Any amount paid by the City for any of the aforesaid purposes, together with related courts costs, attorney's fees, fines and penalties, shall be paid by Unity Gardens to the City within ten (10) days after the City's demand therefor. 8. Indemnification. Unity Gardens hereby agrees to indemnify and save harmless the City, its officials, employees and agents, from and against any and all liabilities, claims, losses, damages, expenses (including attorney's fees), or costs for personal injuries (including death), and property damage to whomsoever or whatsoever occurring (hereinafter collectively called "Losses ") that arise in any manner from (a) the placement, maintenance, or removal of, or the failure to properly place, maintain, or remove the Garden, or (b) any act, omission, or negligence of Unity Gardens, its agents, servants, employees, or contractors in -3- connection therewith, unless caused solely by the negligence of the City or caused solely by the willful misconduct of the City. 9. Insurance. Without limiting in any manner the liabilities and obligations assumed by Unity Gardens under any other provision of this Agreement, and as additional protection to the City, Unity Gardens shall, at its expense, procure and maintain with an insurance company satisfactory to the City, a Commercial Liability Insurance policy having a combined single limit of not less than $5,000,000 for each occurrence, naming the City as an additional insured. All insurance shall be underwritten by insurers, and be of such form and content, as may be acceptable to the City. Evidence of such insurance shall be furnished to the City's legal counsel for review and approval. 10. Environmental Matters. Unity Gardens assumes all responsibility for any environmental obligations imposed under applicable laws, regulations, ordinances, or other requirements of federal, state, and local governmental authorities relating to (a) the placement, maintenance, or removal of the Garden, including notification and reporting of any releases, and (b) any contamination of any real property, water, air or groundwater arising or resulting, in whole or in part, from Unity Gardens' operation or use of the Premises pursuant to this Agreement. In addition, Unity Gardens shall obtain any necessary permits to place, maintain or remove the Garden. Unity Gardens agrees to indemnify and hold harmless the City from and against any and all fines, penalties, demands or other losses (including attorney's fees), incurred by the City or claimed by any person, company or governmental entity relating to (a) any contamination of any real property, water, air or groundwater arising from or caused by the use or presence of the Garden on the Premises, (b) Unity Gardens' violation of any laws, regulations or other requirements of federal, state or local governmental authorities in connection with the use or presence of the Garden on the Premises, or (c) any violation of Unity Gardens' obligations imposed in this Agreement. Without limitation, this indemnity provision shall extend to any cleanup and investigative costs relating to any contamination of the Premises arising or resulting from, in whole or in part, Unity Gardens' use of the Premises or any other activities by or on behalf of Unity Gardens occurring on or about the Premises. Unity Gardens further agrees not to dispose of any trash, debris or waste, including hazardous waste, on the Premises and will not conduct any activities on the Premises which would require a hazardous waste treatment, storage or disposal permit. 11. Assignments and Other Transfers. A. Unity Gardens shall not assign, transfer, sell, mortgage, encumber, sublease or otherwise convey (whether voluntarily, involuntarily or by operation of law) this Agreement or any interest therein, nor license, mortgage, encumber or otherwise grant to any other person or entity (whether voluntarily, involuntarily or by operation of law) any right or privilege in or to the Premises (or any interest therein), in whole or in part, without the prior written consent of the City, which consent may be withheld by the City in its sole discretion. Any such assignment or other transfer made without the City's prior written consent shall be null and void and, at the City's option, shall constitute an immediate default of this Agreement. -4- B. The City shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in or to the Premises. From and after the effective date of any such assignment or transfer, the City shall be released from any further obligations hereunder; and Unity Gardens shall look solely to such successor in interest of the City for the performance of the obligations of the City hereunder. 12. Default; Remedies. A. The following events shall be deemed to be events of default by Unity Gardens under this Agreement: 1. Unity Gardens shall fail to comply with any provision of this Agreement, all of which terms, provisions, and covenants shall be deemed material, and such failure shall continue for a period of thirty (30) days after written notice of such default is delivered to Unity Gardens; 2. Unity Gardens shall become insolvent or unable to pay its debts as they become due, or Unity Gardens notifies the City that it anticipates either condition; 3. Unity Gardens takes any action to, or notifies the City that Unity Gardens intends to file a petition under any section or chapter of the United States Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any state thereof; or a petition shall be filed against Unity Gardens under any such statute; or 4. A receiver or trustee shall be appointed for Unity Gardens' interest hereunder or for all or a substantial part of the assets of Unity Gardens, and such receiver or trustee is not dismissed within sixty (60) days of the appointment. B. Upon the occurrence of any event or events of default by Unity Gardens, the City shall have the option to pursue any remedies available to it at law or in equity without any additional notices to Unity Gardens. The City's remedies shall include, but not be limited to, the following: (i) termination of this Agreement, in which event Unity Gardens shall immediately surrender the Premises to the City; (ii) entry into or upon the Premises to do whatever Unity Gardens is obligated to do under the terms of this License, in which event Unity Gardens shall reimburse the City, on demand, for any expenses which the City may incur in effecting compliance with Unity Gardens' obligations under this License, but without rendering the City liable for any damages resulting to Unity Gardens or the Garden from such actions; and (iii) pursuit of all other remedies available to the City at law or in equity, including without limitation, injunctive relief of all varieties. 13. The City's Termination Right. Notwithstanding anything to the contrary in this Agreement, the City shall have the right to terminate this Agreement and the rights granted hereunder, including, without limitation, the right to extend the term of this Agreement, after delivering to Unity Gardens, written notice of such termination no less than sixty (60) days prior to the effective date thereof, upon the occurrence of any one or more of the following events: -5- A. Unity Gardens shall discontinue the use of the Premises for placement or maintenance of the Garden for a ninety (90) day period during the growing season beginning May 1 and ending October 31; B. If the City determines that the maintenance of the Garden on the Premises unduly interferes with the maintenance and use of any of the City's facilities, equipment or structures on the Premises, or with the present or future use of the Premises by the City, its lessees, successors or assigns, for their respective purposes. C. If the City determines that the presence of the Garden on the Premises will cause the City to be in violation of any State or Federal rule, regulation, statute or law thereby jeopardizing its ability to use the Premises. D. If the City determines that the Garden conflicts with a proposed use of the Premises by the City or by a third party. 14. Removal of Garden; Survival. The Garden is and shall remain the personal property of Unity Gardens. Upon the termination of this Agreement, Unity Gardens shall remove the Garden from the Premises within thirty (30) days after the effective date thereof. In the event that the City elects to terminate this Agreement or any extension thereof, pursuant to the City's rights to terminate in accordance with Paragraph 13, hereinabove, the City will contribute up to $10,000.00 in costs to re- locate up to three temporary structures located on the Premises. In performing such removal, unless otherwise directed by the City, Unity Gardens shall restore the Premises to the same condition as existed prior to the placement of the Garden, reasonable wear and tear excepted. In the event Unity Gardens shall fail to so remove the Garden or restore the Premises, the Garden shall be deemed to have been abandoned by Unity Gardens, and the same shall become the property of the City for the City to use, remove, destroy or otherwise dispose of at its discretion, and without responsibility for accounting to Unity Gardens therefor; provided, however, in the event the City elects to remove the Garden, the City, in addition to any other legal remedy it may have, shall have the right to recover from Unity Gardens all costs incurred in connection with such removal and restoration of the Premises. Notwithstanding anything to the contrary contained in this Agreement, the termination of this Agreement shall not relieve Unity Gardens from Unity Gardens' obligations accruing prior to the termination date, and such obligations shall survive any such expiration or other termination of this Agreement. 15. Limitations Upon Damages. Notwithstanding any other provision of this Agreement, the City shall not be liable for breach of this Agreement or under this Agreement for any consequential, incidental, exemplary, punitive, special, business damages or lost profits, as well as any claims for death, personal injury and property loss and damage which occurs by reason of, or arises out of, or is incidental to the interruption in or usage of the Garden placed upon or about the Premises by Unity Gardens, including without limitation, any damages under such claims that might be considered consequential, incidental, exemplary, punitive, special, business damages or lost profits. 16. Attorney's Fees. Any party to this Agreement who is the prevailing party in any legal or equitable proceeding against any other party brought under or in relation to this Agreement or transaction shall be additionally entitled to recover court costs and reasonable attorney's fees from the non - prevailing party. 17. Miscellaneous Covenants and Conditions. A. Notice. Any notices required or permitted to be given pursuant to this Agreement shall be in writing and shall be deemed to have been properly given or served and shall be effective upon personal delivery or upon being deposited in the United States mail, postage prepaid and registered or certified with return receipt requested, provided, however, the time period in which a response to any notice must be given shall commence on the postmark date. Any such notice, if given to the City shall be addressed as follows: South Bend Redevelopment Commission Attn: Commission President 1200 County -City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 With copies to the following legal counsel: South Bend City Attorney 1400 County -City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 and, if given to Unity Gardens, addressed as follows: Sara Stewart Uzelac, RN MSNc 18506 US Hwy 6 Walkerton, Indiana 46574 B. Successors and Assigns. This Agreement shall apply to, inure to the benefit of and be binding upon and enforceable against the parties hereto and their respective heirs, legal representatives, successors and assigns, except as otherwise herein expressly provided. C. Governing Law. This Agreement shall be governed by the laws of the State of Indiana and venue for any action shall be St. Joseph County, Indiana. D. Prior Discussions and Agreements. This Agreement shall supersede all prior discussions and agreements between the City and Unity Gardens with respect to the license interest and all other matters contained herein and shall constitute the sole and entire agreement between the City and Unity Gardens with respect thereto. All prior agreements, whether oral or -7- in writing, are null and void and of no further effect. Unless specified otherwise herein, no representation, inducement, promises or prior agreements, oral or written, between the parties, or made by any agent on behalf of the parties or otherwise, shall be of any force and effect. E. Amendments. This Agreement may not be modified or amended unless such amendment is set forth in writing and signed by both the City and Unity Gardens. F. Judicial Interpretation. Each party to this Agreement and its counsel have reviewed and revised this Agreement. Should any provision of this Agreement require judicial interpretation, it is agreed that the Court interpreting or construing the same shall not construe any ambiguities against the party who itself or through its agent prepared the same, it being agreed that the agents of all parties have participated in the preparation hereof. G. Severability. If any one or more of the provisions contained in this Agreement are for any reason deemed invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. H. Waiver. Either party may waive in writing any condition imposed on the other party in this Agreement without waiving any other condition or terminating this Agreement. I. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. (Signature Page Follows) IN WITNESS WHEREOF, the parties have signed this Agreement on the date and year written above. SARA STEWART UZELAC, RN MSNc Signature CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature Printed Name and Title South Bend Redevelopment Commission ATTEST: Signature Printed Name and Title South Bend Redevelopment Commission (Signature Page to Temporary Use and License Agreement) "EXHIBIT 1" (Legal description and depiction of the Premises) -10- Legal Description of Premises Property Address: V/L Ardmore Trail PARCEL 1: Commencing at the intersection of the North line of Prast Boulevard and the West line of Bendix Drive; thence North 891119'44" West along said North line of Prast Boulevard, 1106.75 feet to the point of beginning of this description; thence continuing North 89❑ 19'44" West along said North line of Prast Boulevard, 842.60 feet to the point of curvature of a curve to the right having a central angle of 60 ❑ 59'l 3 " a radius of 240.70 feet and being subtended by a long chord having a bearing of North 58 ❑50'12" West and a length of 244.28 feet; thence along the arc of said curve 256.21 feet to the Southerly line of Ardmore Trail; thence North 641103'32" East along said Southerly line of Ardmore Trail, 564.09 feet; thence North 67 ❑04'58" East along said Southerly line of Ardmore Trail 108.60 feet; thence North 68035'39" East, along said Southerly line of Ardmore Trail, 296.79 feet; thence North 68 ❑ 56'30" East, along said Southerly line of Ardmore Trail, 185.85 feet; thence South 00 1105'39" East, 615.29 feet to the point of beginning. - 11 - I DEPICTION OF THE PREMISES p 4 67 J; Fa -: * I' 0 4 cf) p -0 G­3 i;7 QLL j1 t 24 - 1 Fa -12- V.) Z. -: * I' 0 4 cf) p -0 G­3 i;7 24 - 1 -12- V.) Z. -: * I' 24 - 1 -12- V.) Z. -: * I' 1 /N-P k I A I I iN- VIVNE11mi 1*4M#1 9M L� Mr. Don Inks, Director Redevelopment Commission City of South Bend County City Building 227 W. Jefferson Blvd South Bend, IN 46601 Dear Redevelopment Commission Board of Directors: U nity Gardens I have attached a letter of request, a site plan, and a 3 phase Garden plan overview in order to secure the approval for a long term lease of the LaSalle Square Unity Garden site (approximately located at 3701 Prast Blvd). We have secured some support for the outdoor classroom and educational area already from the Community Foundation of Saint Joseph County and are actively fund raising for the required match. Additionally we have secured an award for NAP Indiana state tax credits for this project. As we previously communicated, we also have letters of support from the LincolnWay Gateway Association, and the LaSalle Square Steering Committee. Please respond as soon as possible with approval of our request so we can commence active work on this project. Unity Gardens: Growing Food, Growing Health, Growing Community! Growing Together Sara Stewart RN MSN Executive Director Unity Gardens Inc. PO Box 10022 South Bend, IN 46680 574 315 -4361 growunitygardens@yahoo.com www .theunitygardens.blogspot.com Facebook Group The Unity Gardens GrowUnit}-Gardensu}-ahoo.com PO Box 10022 South Bend IN 46680 «w��..tlieunitN ardens.bloyspot.com 574 315 -4361 ardlerfs LaSalle Square Unity Garden Plan Overview; Dec 2011 Phase I Main Garden ( 90% complete ) Create large gleaning garden to provide free fruits and vegetables to the community. Create shaded shelter community gathering area. Create education area for outdoor garden tours Goals for Phase I Increase access to free healthy food Bring diverse community members together Phase II Farm to Market area, Outdoor Classroom &Community Plots (2012 pro ect) Create fenced in area with plots for free community plots. Provide area & series for community to grow food for market. Develop educational stations for hands on activities and learning Goals for Phase II Increase awareness of the benefits to locally grown food Increase availability of fresh produce to community Phase III Unity Discovery Center (2013 protect) Build indoor classroom area, with office and storage space Add on -site greenhouse, for early plant starts, marketable plants, season extension, and learning lab Create additional nature / outdoor area for education Goals for Phase III Increase awareness to the health benefits of locally grown, fresh produce Increase ability for the community to protect their own health through growing produce Increase community connections through creation of a central education hub for nature and environment Increase organizational sustainability through development of marketable products at central location The Unity Gardens' vision is to have a community with an abundance of healthy, locally grown produce accessible & affordable to all. Garden activities exist to achieve the mission of improving community health physically, socially, and economically. The gardens provide food for the community & bring diverse people together to grow, harvest, share, and eat healthy food. Grow PO Box 10022 South Bend IN 46680 \ \r\ N_.theunih-gardens.blo¢spot.com 574 315 -4361