HomeMy WebLinkAboutAgenda - Recreation and Parks Committee - 08/18/2020RECREATION AND PARKS COMMITTEE
Tuesday August 18, 2020
5 PM-6:30 PM
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AGENDA
(5:00)
(5:10)
(6:30)
Call meeting to order: Katie
Changes or additions to the agenda
Comments from the public not related to the agenda
Approval of minutes from July 13, 2020
Open Discussion and Potential Proposed Amendments to Common Roots
Lease Agreements for the Underwood Property and Wheeler Homestead with
Carol McQuillen.
Adjourn
RECREATION AND PARKS COMMITTEE
Monday, July 13, 2020
5 PM-6:30 PM
Rec and Park Committee Meeting Minutes
Present: Jon Pence, Mike Simoneau, Jennifer Kochman, Lauren Wedam, Katie Langrock, Christy
Pilsucki
Staff: Holly Rees
Absent: None
Guests: Barbara Sirvis, Wayne Racine, Michael Mittag, Catherine Frank, Tom Hubbard,
Larry Kupferman, Carol McQuillen
The meeting was called to order at 5:03pm by Katie.
Changes or additions to the agenda
None
Comments from the public not related to the agenda
Michael Mittag objected to continuing this meeting as the documents under consideration
were not circulated publicly and warned properly. Michael said another area of concern for him
is that work has started at Wheeler without public input.
Katie acknowledged these concerns, and asked if there are matters not related to the agenda.
Michael said the Agenda cannot proceed because agenda has not been legally circulated.
Katie said we cannot talk about amendments to the lease because we have not released
the lease to the public, but can discuss relationship between city, R&P and Wheeler and
Underwood.
Katie began to provide history of R&P, City Council involvement in Wheeler and Underwood.
In March, R&P met with Carol McQuillen from Common Roots
R&P spoke with CC and stated that Recreation and Parks Committee should be involved in
negotiating any agreement. .According to R and P By-Laws, approved by City
Council, R and P Committee has overview of matters affecting city parks. But in
spite of R and P Committee‘s March request to City Council, leases
were then developed by CC without R&P input.
In June, R&P identified some concerns that they wanted addressed before the city moved
forward with formalizing the relationship with Common Roots which lead to this
current meeting. The R and P Committee approved a motion to authorize the
Chair to send a memo to City Council stating R and P considerations in drafting
an agreement with Common Roots (attached).
Katie decided it was difficult to discuss the issue without discussing the leases and
amendments.
Jennifer said all the salient points are in Katie’s email to CC. Katie said they are related to the
lease and so may be best to reschedule.
Larry from Dog and Park Committee asked to see a map of the homestead, and proposed usage
of Wheeler Park.
Catherine from Bike and Ped Committee would like to be able to see the map as well. Decision made to reschedule this meeting after the relevant documents have been
appropriately circulated.
Approval of minutes from June 22, 2020 meeting
Michael moved to approve. Jennifer said Chair cannot make a motion to approve and so that
will need to be changed and resubmitted. Lauren seconded motion with discussed
changes. Unanimous approval of minutes.
Lauren motioned to reschedule to allow adequate time to review documents and
memo. Michael seconded. No discussion. All in favor.
Meeting adjourned at 5:20pm.
Respectfully submitted,
Christy Pilsucki
Memo from R and P Committee to City Council
From: Katie Langrock <katielangrock@gmail.com>
Date: Tue, Jun 23, 2020 at 5:02 PM
Subject: Recreation & Parks Committee review of Common Roots' leases
To: Kevin Dorn <KDorn@sburl.com>, Tom Hubbard <thubbard@sburl.com>, Christy Pilsucki
<christy.pilsucki@gmail.com>, Holly Rees <hrees@sburl.com>, Jennifer Kochman
<jkchmn@comcast.net>, Jon Pence <mr_jonpence@yahoo.com>, Lauren Wedam
<lwedampt@gmail.com>, Mike Simoneau <simmy@buyvtrealestate.com>
Kevin & Tom,
The Recreation & Parks Committee met yesterday and spent a significant portion of our meeting
discussing the leases between the City of South Burlington and Common Roots.
This agenda item was the result of an additional request of the City Council to involve the Recreation &
Parks Committee, the first request was submitted in mid-March, following our February meeting
with Common Roots.
The text of the email that was sent to City Management and The City Council in March is as follows:
"The Recreation & Parks Committee supports Common Roots proceeding with their plans at Wheeler
Farm, as presented to the Recreation & Parks Committee on February 20, 2020. We ask the City Council
to recognize that the Wheeler Farm is city owned land and is supported by the Recreation & Parks staff,
committee and budget. The Recreation & Parks Committee and staff should be updated as talks progress
about the use of this property, and should review and approve any formal agreements between Common
Roots and the City before they are presented to City Council. "
The Committee appreciated the opportunity to review and discuss the proposed leases. Thank you for
allowing the committee to review these prior to bringing them before the City Council.
The discussion resulted in the following motion being approved.
"It is premature for the R&P committee to endorse these draft leases without additional discussion and
further revision."
In addition to this motion, the committee would like to provide the following suggestions when
considering adjustments to the proposed leases.
Comments on both leases:
• Both the Underwood lease and the Wheeler Clay Oven lease are very generous to Common
Roots and may not protect the best interests of the City.
• The duration of the leases should be significantly shorter
• The leases should clearly have a termination clause that allows the City to terminate more
easily.
• The leases should more clearly state the monitoring and partnership with the Recreation &
Parks Department
Underwood specific:
• The Underwood lease has the opportunity to outline what the City, as a whole, gains from the
relationship with Common Roots. It should also outline how this benefit will be monitored
over time.
o Common Roots should itemize their intended uses of this land and the goals/benefits
intended for the City.
• The Committee expressed concern that the well has already been drilled at Underwood, in
advance of the approved lease.
Wheeler Property specific:
• With the current economic climate, we should consider how the Recreation & Parks department
may need the Wheeler House as a facility. The needs of the Recreation & Parks Department
should be given priority should the need arise.
• The monthly accounting surrounding the "making whole" of Common Roots for their investment
in the oven needs to be further clarified.
o The agreement does not include any provision for the city, Common Roots or the
Recreation Department to
Require timely statements of accounting of revenue received from Common
Root events
Require timely reporting of accounting to the city
• Without a requirement that Common Roots hosts third party events, the City should realize that
there may never be any income from Common Roots.
• If the City does realize revenue from Common Roots' events, do we really want to restrict the
money to a specific account that is related to Wheeler? There may be greater needs
elsewhere in the City.
• We are concerned that the use of the Wheeler parkland is unlimited. The Common Root
activities should be confined to the Homestead area exclusively
We acknowledge that encouraging sustainable agriculture and local food sourcing were results of the
first IZ Sustainable Agriculture Committee and that Common Roots planning does fit within these
goals. We appreciate the good work done by Common Roots and are optimistic that lease agreements
that illustrate benefits for both the City and Common Roots are attainable.
We also discussed that members of the Recreation & Parks Committee are willing to engage in
conversations with the City and Common Roots in relation to the proposed leases.
Thank you!
On behalf of the Recreation & Parks Committee
Katie
Katie Langrock
Chair
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AMENDMENT TO AND EXTENSION OF LEASE AGREEMENT BETWEEN COMMON ROOTS, INC. AND THE CITY OF SOUTH BURLINGTON DATED MARCH 16, 2016
Common Roots Inc., (”Common Roots”) and the City of South Burlington (“City”) are
party to a certain the Lease Agreement (the “Lease Agreement”) made between them as of the
16th day of March 2016, relating to the use of the Wheeler House together with a portion of the
lands appurtenant thereto.
The parties now wish to provide for the construction and operation of an Outdoor Kitchen
on the premises and extend the term of the Lease Agreement.
NOW THEREFORE, in consideration of the mutual agreements and promises set forth
herein, the parties hereby agree as of the __ day of _____ 2020, as follows:
1. Consent to Construction. Pursuant to Paragraph 7 of the Lease Agreement, the
City consents to the construction by Common Roots of an Outdoor Kitchen, in a manner
substantially in accordance with the plans that Common Roots has submitted to the City in
connection with its site plan permit application. The components of the Outdoor Kitchen include
an 8” x 8” clay oven on a fieldstone base (the “Clay Oven”), a concrete platform with
reinforcements to hold the weight of the Clay Oven and the structure; a 20” x 38” structure with
roof and south wall, together with a lighting, and a hedgerow. Common Roots may add
additional culinary equipment, some of which may be affixed to the platform, in the future.
2. Permits. Common Roots will pursue the necessary permit from the City, and
once the permit is awarded and final it will cause the Outdoor Kitchen to be constructed.
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Common Roots will make reasonable efforts to construct the Kitchen in calendar year 2020, but
both Parties acknowledge that this may prove impractical due to the current public health
emergency.
3. Consent to Use. With the approval of the City, which approval shall not be
unreasonably withheld, Common Roots may conduct events using the Outdoor Kitchen, and in
connection with such events, may use the surrounding Wheeler Nature Park. The City shall
maintain a calendar for the use of the Outdoor Kitchen. Once an event has been scheduled, it
shall not be removed without the consent of the scheduling party.
4. Compliance with Law. Such events shall comply with all applicable City
ordinances, particularly with respect to time, sound volume, and the appropriate use of space for
the events.
5. Insurance. Common Roots shall cause the insurance provided for in the Lease
Agreement to cover the Outdoor Kitchen and its appurtenances and all events conducted in
connection with its use.
6. Common Roots Educational and/or Community Events. Common Roots shall
be entitled to retain all revenues generated using the Outdoor Kitchen in connection with
Educational and/or Community Events that it sponsors and facilitates.
7 Internal City Use. The City may use the Outdoor Kitchen for its own internal
purposes, such as for City employee social events, without charge except as specifically provided
hereinafter: Whenever the Clay Over or other culinary equipment is used, a Common Roots staff
member will supervise the operation of the oven, including firing and cool down, and the use of
the equipment. The City will pay Common Roots for the cost of supervision. To the extent
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additional site management services are required, the City will reimburse Common Roots for its
costs.
8. City Educational and/or Community Events. The City may sponsor
Educational and/or Community Events using the Outdoor Kitchen. Whenever the Clay Over or
other culinary equipment is used, a Common Roots staff member will supervise the operation of
the oven, including firing and cool down, and the use of the equipment. The City will pay
Common Roots for the cost of site management services including trash removal and clean up
for such events.
9. Third Party Rentals. Common Roots may rent the Outdoor Kitchen and
appurtenances to third parties. In that event, Common Roots will provide site management, trash
removal and clean up for such events. Whenever the Clay Over or other culinary equipment is
used, a Common Roots staff member will supervise the operation of the oven, including firing
and cool down, and the use of the equipment. The cost of such services shall first be deducted
from the rental charges to reimburse Common Roots for those costs. Until Common Roots has
recovered its construction costs for Outdoor Kitchen as provided in paragraph 8 above, Common
Roots shall retain the full balance of rental revenue from third-party events. Thereafter, Common
Roots shall retain 60% of the net rental revenue and shall pay over to the City the remaining 40%
of such revenue. The City shall deposit the proceeds of its share of the revenue in a special
account and use the proceeds of that account to pay or contribute to the cost of upgrades to
Wheeler House and appurtenant property.
10. Discounted Third-Party Rentals. Common Roots shall provide a discount of
not less than 15% from its standard rental prices for rentals to third parties who are residents of
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the City of South Burlington. Common Roots may, in its sole discretion, allow discounted rentals
to other third-party renters.
11. Maintenance. The City will provide for snow plowing and removal and basic
law care for Wheeler House. Common Roots will maintain the perimeter gardens, the hedgerow,
and such further gardens as it may create with the City’s approval. Other maintenance shall be
provided for as stated in the Lease Agreement.
12. Lease Agreement Extension. The term of the March 16, 2016 Lease Agreement
is hereby extended through and including March 16, 2045. The rights and responsibilities of the
parties created in this Agreement shall exist for that period.
13. Fixtures. Also pursuant to paragraph 7 of the Lease Agreement, at the expiration
of the Lease Agreement as extended, the Outdoor Kitchen and such related improvements as
shall be affixed to the land, shall become the property of the City, unless the parties agree on a
further extension of the Lease.
14. Inconsistencies, Ratification. In the event of any inconsistency between this
agreement and the Lease Agreement, the provisions of this Agreement shall control. Except to
the extent that the provisions of the Lease Agreement are inconsistent with the terms of this
Agreement, the Parties hereby ratify and confirm the terms of the Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
date first above-written.
IN PRESENCE OF: THE CITY OF SOUTH BURLINGTON
___________________ By: ______________________________ Witness Its Duly Authorized Agent
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[For in person acknowledgment]
On this __ day of_______, 2020, ____________ personally appeared before me and acknowledged this instrument to be his/her free act and deed and the free act and deed of the City of South Burlington. __________________________________
Notary Public Commission No. ____________________ My Commission Expires 2/10/2023 [Alternate Provision for Remote Acknowledgement]
State of Vermont, County of __________________________ This record was remotely acknowledged before me through a secure communication link on
____________ by _____________________ as the _______________________[type of [date] [Name of Signer] [officer, trustee, power of attorney, etc.] of __________________________________________________. [name of party on behalf of whom the document was executed]
Executed by_________________ on ________________. [Name of Signer] [date Signer signed]
________________________________ [Signature of notary public] _____________________________
[Printed name of notary public] Commission number:____________________________________ Commission expiration date: February 10, 2023 Title of Office: Notary Public ______________________________________________________________________________
[The rest of this page is intentionally blank]
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COMMON ROOTS, INC.
___________________ By: ______________________________ Witness Its Duly Authorized Agent On this __ day of _______, 2020, ____________ personally appeared before me and
acknowledged this instrument to be his/her free act and deed and the free act and deed of the Common Roots, Inc. __________________________________ Notary Public Commission No. ____________________
My Commission Expires 2/10/2023 For Remote Acknowledgement State of Vermont,
County of __________________________ This record was remotely acknowledged before me through a secure communication link on ____________ by _____________________ as the _______________________[type of
[date] [Name of Signer] [officer, trustee, power of attorney, etc.]
of __________________________________________________. [name of party on behalf of whom the document was executed] Executed by_________________ on ________________.
[Name of Signer] [date Signer signed] ________________________________ [Signature of notary public]
_____________________________ [Printed name of notary public] Commission number:____________________________________
Commission expiration date: February 10, 2023
Title of Office: Notary Public
1
LEASE AGREEMENT – UNDERWOOD, 4-ACRES AG LAND
THIS LEASE AGREEMENT (“Agreement”), made this ____ day of
__________, 2020, is by and between COMMON ROOTS, INC., a Vermont
nonprofit corporation with a place of business in South Burlington,
Vermont, as lessee (“Common Roots”), and CITY OF SOUTH BURLINGTON,
VERMONT, a municipal corporation, as lessor (“City”).
WITNESSETH: In consideration of the mutual promises, covenants,
rent, agreements and conditions contained in this Lease Agreement,
the City agrees to lease to Common Roots 4-acres of the Underwood
Integrated land management property in South Burlington described
below:
1. Leased Premises. The City is the owner of land located at
Spear and Nowland Farm Drive in the City of South Burlington,
Vermont, comprised of 67 acres and known as the Underwood Nature
Park. This property is currently vacant other than 4 agricultural
acres on prime soils improved by Common Roots since 2015 (brush
hogging, chisel plowing, deep plowing, $2,000 of mineral
improvement, more than 5 successions of cover cropping and limited
growing.
The City hereby leases to Common Roots the 4-acre portion
designated as agricultural soil. The Leased Premises are shown
Exhibit A attached hereto.
Common Roots acknowledges that it has reviewed the land and posted
the 4 agricultural acres and hereby accepts same in “as is”
condition and the City has made no warranties and/or
representations regarding the condition of the land.
2. Term. The term of this Lease shall be for ninety-nine (99)
years commencing with the date of execution of this Agreement (the
“Commencement Date”). If Common Roots ceases substantial use of
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the Leased premises for agricultural purposes for a calendar year,
the lease shall expire, provided the substantial agricultural use
is not resumed within the calendar year after the City gives
written notice of termination.
3. Rent. Common Roots covenants and agrees to pay the City,
beginning on the Commencement Date, and continuing through the
initial Lease Term, land lease at a rate of one dollar ($1.00) per
year. Common Root has prepaid the rent for the entire term and
City acknowledges that it has received and accepted payment.
4. Financial Responsibilities. Common Roots shall pay all costs
of soil improvements and tilling on the Lease Premises. The City
shall cause a well to be drilled and a solar pumping facility to
be constructed at its sole expense. Water from the well shall be
shared between the Common Roots and the City, but Common Roots
will have the first priority to use the resulting water.
The City acknowledges that no property taxes are due or shall
become due to the City on the Leased premises.
5. Use of the 4 Agricultural Acres. Common Roots shall use the
Leased Premises for agricultural purposes and to fulfil its
sustainability plan and for no other purpose. The Leased Premises
shall not be used for any illegal purpose, nor in violation of any
valid regulation of any governmental body, nor in any manner to
create nuisance or trespass, nor in any manner to invalidate the
insurance or increase the rate of insurance on the land.
6. Upkeep of the Agricultural Land. Common Roots shall keep this
the Leased Premises tidy and accessible for necessary Public Works
functions. If Common Roots decides not to grow agricultural
products on this parcel, it reverts to the City.
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If Common Roots fails to perform its obligations to maintain the
Leased Premises, the City is authorized to perform necessary tasks
to manage this parcel, and upon billing to Common Roots by the
City, Common Roots shall reimburse the City for the costs of such
tasks.
Upon the expiration of or prior termination of this Lease, Common
Roots shall remove all of its property from the Leased Premises
and surrender the Premises to the City in as good order and
condition as they were upon the Commencement Date, provided that
Common Roots’ improvements the land become the property of the
City. Any property left on the premises after the expiration or
other termination of this Lease may be disposed of by City in any
manner and without any liability to Common Roots.
7. Site Improvements. Other than using the Leased Premises for
agricultural purposes, Common Roots shall not make any changes,
alteration, additions, or improvements to the Leased Premises
without the written consent of the City, which consent shall not
unreasonably be withheld, provided the alterations are reasonably
related to agricultural purposes.
8. Force Majeure. During the Lease Term, Common Roots and the
City shall not be required to perform any term, condition, or
covenant in this Agreement so long as such performance is delayed
or prevented by extended and unusual inclement weather, fire,
explosion, casualties or accidents, failure of transportation
facilities, acts of God, epidemics, cyclones, floods, drought, or
by reason of war, declared or undeclared revolution, civil
commotion or strife, acts of public enemies, blockade or embargo,
or by reason of any new law, proclamation, regulation, ordinance
or demand by any government authority, inability to procure land
repairs for which there is no suitable replacement, failure to
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obtain, after exercising reasonably diligent efforts, necessary
governmental permits, authorizations and approvals and any other
cause not reasonably within the control of Common Roots or the
City and which, even with the exercise of due diligence, Common
Roots or the City Roots is unable, wholly or in part to prevent or
overcome (collectively, a “Force Majeure”).
9. Insurance. Common Roots shall provide on or before the
Commencement Date and keep in force during the Lease Term the
following insurance:
a. General liability insurance with respect to the Ag Land
including personal injury and other medical payment coverage
on an occurrence basis with minimum limits of liability in
the amount of $1,000,000 per occurrence and $2,000,000
aggregate for bodily injury, and $2,000,000 with respect to
loss or damage to property. Such policies and renewals
thereof shall name the City as an additional insured - non-
contributory and primary.
b. Adequate insurance for loss of personal property, trade
fixtures and equipment or other property of Common Roots.
c. Workers’ compensation coverage for all Common Roots
employees working on the Premises.
Common Roots shall provide the City with certificates of insurance
and/or policies. All insurance policies shall be issued by
insurance companies licensed to do business in the State of
Vermont, and shall otherwise be reasonably acceptable to both
parties.
10. Quiet Enjoyment. The City agrees that Common Roots shall
peaceably and quietly have, hold, occupy and enjoy the Ag Land for
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the Lease Term without hindrance by the City, or anyone claiming
through the City.
11. Hazardous Materials. Common Roots may use necessary fuels
for agricultural equipment. Common Roots shall not store excess
fuel, dispose of or in any manner deal with hazardous materials on
the Ag Land. Common Roots will maintain compliance with all
applicable federal, state and local laws, ordinances, rules and
regulations. The term “hazardous materials” as used in this
Agreement shall include, without limitation, explosives,
radioactive materials, or any other substance or materials defined
as a hazardous or toxic substance or material by any federal, state
or local law, ordinance, rule or regulation (collectively
“Environmental Laws”).
Common Roots shall use only Certified Organic Agricultural
practices on the land and maintain their Certification.
Common Roots shall protect, defend, indemnify and hold the City
harmless from and against any and all loss, claims, liability or
costs (including court costs and attorney's fees) incurred by
reason of any actual or asserted failure of Common Roots to fully
comply with all applicable Environmental Laws, or the presence,
handling, use or disposition in or from the Ag land of any
Hazardous Materials, or by reason of any actual or asserted failure
of Common Roots to keep, observe, or perform any provision of this
paragraph.
12. Fire and Other Casualty. If the Leased Premises, or any
portion thereof, shall be substantially damaged during the term by
fire or other casualty the City may, at its option, terminate this
Lease.
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The City and its agents shall not be liable for the loss of or
damage to any property of Common Roots by fire or other casualty
or from any other cause whatsoever; nor shall the City or its
agents be liable for any damage caused by other tenants or persons.
13. Liability and Indemnification. Common Roots shall indemnify
the City and save the City harmless from suits, actions, damages,
liability and expenses arising from or out of or caused by the
construction and use or occupancy of the Premises or any part
thereof or any act or omission of Common Roots, its agents,
contractors, employees, servants, invitees, licensees, or
concessionaires, unless caused by acts or omissions on the part of
the City, or, its agents, contractors, employees, servants,
invitees, licensees, or concessionaires, and the City shall
indemnify Common Roots and save Common Roots harmless from such
suits, actions, damages, liability and expense arising out of or
caused by such breach, act or omission.
14. Eminent Domain. During the term of this Agreement, if the
whole of the Premises or such portion of which if removed would
materially adversely affect Common Roots’ use and enjoyment of the
Premises is taken in a condemnation proceeding by the State of
Vermont or the Federal Government or by any right of eminent domain
of the State of Vermont or the Federal Government, this Agreement
shall terminate on the date of such taking. During the term of
this Agreement, if the whole of the Premises or such portion of
which if removed would materially adversely affect Common Roots’
use and enjoyment of the Premises this Agreement shall terminate
120 days from the date of such taking.
15. Signs. Common Roots shall have the right to affix or otherwise
display on any part of the Ag Land any sign, advertisement or
notice that is in accordance with any approvals required under the
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City’s Sign Ordinance, and any other applicable regulation,
statutes or laws. Common Roots will confer with the City on
signage.
16. Default after Occupancy. If Common Roots shall neglect or
fail to perform or observe any of the covenants, terms, provisions
or conditions contained in these presents and on its part to be
performed or observed within thirty (30) days after notice of
default, or such additional time as is reasonably required to
correct any such default, or if the estate hereby created shall be
taken on execution or by other process of law, or if Common Roots
shall be judicially declared bankrupt or insolvent according to
law, or if any assignment shall be made of the property of Common
Roots for the benefit of creditors, or if a receiver, guardian,
conservator, trustee in involuntary bankruptcy or other similar
office shall be appointed to take charge of all or any substantial
part of Common Roots’ property by a court of competent
jurisdiction, or if a petition shall be filed for the
reorganization of Common Roots under any provisions of the
Bankruptcy Act now or hereafter enacted, and such proceeding is
not dismissed within sixty (60) days after it is begun, or if
Common Roots shall file a petition for such reorganization, or for
arrangements under any provisions of the Bankruptcy Act now or
hereafter enacted, and providing a plan for a debtor to settle,
satisfy or extend the time for payment of debts - then, and in any
said cases (notwithstanding any license of any former breach of
covenant or waiver of the benefit hereof or consent in a former
instance), City lawfully may, in addition to any remedies otherwise
available to City, immediately or at any time thereafter, according
to applicable law and appropriate authority, enter into and upon
the said Premises or any part thereof in the name of the whole and
repossess the same, and expel Common Roots and those claiming
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through and under it and remove its or their effects, and without
prejudice to any remedies which might otherwise be used for arrears
of rent or preceding breach of covenant and/or City may send
written notice to Common Roots terminating the term of this Lease;
and upon the first to occur of (a) entry as aforesaid, or (b) the
fifth (5th) day following mailing of such notice of termination,
the term of this Lease shall terminate.
17. Attorneys’ Fees. In the event either party institutes legal
proceedings against the other for breach of or default under any
of the terms, conditions, or covenants of this Agreement, the
substantially prevailing party shall be entitled to all costs,
charges, and expenses relative thereto, including the reasonable
attorneys’ fees of the substantially prevailing party.
18. Subletting and Assigning. Common Roots shall not sublet any
portion of the Ag Land nor assign this Lease in whole or in part
without the written consent of the City, as to both the terms of
such assignment or sublease and the identity of such assignee or
sublessee, and in the event of a subletting so approved by the
City, Common Roots shall nevertheless remain obligated to the City
under the terms of this Lease.
19. Successors and Assigns. All rights and liabilities herein
given to, or imposed upon, the respective parties hereto shall
extend to and bind the several respective successors and permitted
assigns of the parties.
20. Non-Waiver. No failure by either party to insist upon the
strict performance of any term hereof or to exercise any right,
power, or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent during the continuance of any
such breach, shall constitute a waiver of any breach of any such
term. No waiver of any breach shall affect or alter this
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Agreement, which shall continue in full force and effect, or the
rights of either party with respect to any other existing or
subsequent breach.
21. Severability. It is the intention of the parties hereto that
if any provision of this Agreement is capable of two constructions,
one which would render the provision valid, then the provision
shall have the meaning which renders it valid. If any term or
provision or any portion thereof of this Agreement, or the
application thereof to any person or circumstances, shall, 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 of
this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
22. Entire Agreement, Applicable Law. This Agreement, with any
exhibits and riders attached hereto, contains the entire agreement
of the parties and no representations, inducements, promises or
agreements not embodied herein shall be of any force or effect,
unless the same are in writing and signed by or on behalf of the
party to be charged. The captions of particular sections are
inserted as a matter of convenience and in no way affect or define
the scope or intent of this Agreement or any provision thereof.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Vermont without reference to its
principals of conflicts of laws.
23. Captions. The captions and numbers appearing herein are
inserted only as a matter of convenience and are not intended to
define, limit, construe, or describe the scope or intent of any
section or paragraph, nor in any way affect this Agreement.
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24. Notices. Any notice required to be given by the terms of
this Agreement shall be deemed duly served if sent by certified
mail, return receipt requested, or other traceable method of
delivery requiring a signature to the following addresses:
If to the City:
City of South Burlington 575 Dorset Street
South Burlington, VT 05403 Attn: City Manager
If to Common Roots:
Common Roots, Inc. PO Box 9335 South Burlington, VT 05407
Attn: Board Chair
25. Recording. The City and Common Roots agree that this
Agreement shall not be recorded. If either party wishes to prepare
and record a Memorandum of Lease, the other party covenants to
cooperate and execute the Memorandum for that purpose.
26. Estoppel. From time to time upon no less than fifteen (15)
business days’ prior written notice, the City shall execute,
acknowledge and deliver to Common Roots and any designee of Common
Roots a written statement certifying: (a) that this Agreement is
unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and stating the
modifications); (b) the dates to which rent and any other charges
have been paid; (c) that the City, and to the knowledge of the
City, Common Roots is not in default in the performance of any
obligation (or specifying the nature of any default); (d) the
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address to which notices are to be sent; and (e) such other matters
of a factual nature concerning the status of the Agreement as
Common Roots may request. Any such statement may be relied upon
by any lender of Common Roots.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date first above-written.
IN PRESENCE OF: THE CITY OF SOUTH BURLINGTON
________________________ By:____________________________
Witness Duly authorized agent
STATE OF VERMONT CHITTENDEN COUNTY, SS.
At South Burlington in said County and State, this ____ day of ____________, 2017, personally appeared ______________________,
Duly Authorized Agent of The City of South Burlington, and he/she acknowledged the foregoing instrument, by him/her sealed and
subscribed, to be his/her free act and deed and the free act and deed of the City of South Burlington. Before me, ______________________ Notary Public My commission expires:____________
[Alternate Provision for Remote Acknowledgement] State of Vermont, County of __________________________
This record was remotely acknowledged before me through a secure communication link on ____________ by _____________________ as the _______________________[type of [date] [Name of Signer] [officer, trustee, power of attorney, etc.]
of __________________________________________________. [name of party on behalf of whom the document was executed]
Executed by_________________ on ________________. [Name of Signer] [date Signer
signed]
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________________________________ [Signature of notary public] _____________________________ [Printed name of notary public]
Commission number:____________________________________ Commission expiration date: February 10, 2023
Title of Office: Notary Public
COMMON ROOTS, Inc.
________________________ By:____________________________ Witness Duly authorized agent
STATE OF VERMONT CHITTENDEN COUNTY, SS.
At South Burlington in said County and State, this ____ day of ____________, 2017, personally appeared _____________________,
Duly Authorized Agent of Common Roots, Inc., and he/she acknowledged the foregoing instrument, by him/her sealed and subscribed, to be his/her free act and deed and the free act and
deed of Common Roots.
Before me, ______________________
Notary Public My commission expires:____________ [Alternate Provision for Remote Acknowledgement State of Vermont,
County of __________________________ This record was remotely acknowledged before me through a secure communication link on ____________ by _____________________ as the _______________________[type of
[date] [Name of Signer] [officer, trustee, power of attorney, etc.]
of __________________________________________________. [name of party on behalf of whom the document was executed]
Executed by_________________ on ________________. [Name of Signer] [date Signer
signed] ________________________________
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[Signature of notary public] _____________________________ [Printed name of notary public] Commission number:____________________________________
Commission expiration date: February 10, 2023 Title of Office: Notary Public
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LEASE AGREEMENT
THIS LEASE AGREEMENT (“Agreement”), made this ____ day of
__________, 2016, is by and between COMMON ROOTS, INC., a Vermont
nonprofit corporation with a place of business in South Burlington,
Vermont, as lessee (“Common Roots”), and CITY OF SOUTH BURLINGTON,
VERMONT, a municipal corporation, as lessor (“City”).
WITNESSETH: In consideration of the mutual promises, covenants,
rent, agreements and conditions contained in this Lease Agreement,
the City agrees to lease to Common Roots the property in South
Burlington described below:
1. Premises. The City is the owner of a parcel of land located
at 1100 Dorset Street in the City of South Burlington, Vermont,
comprised of approximately 100 acres and known as Wheeler Park.
This property is currently improved with a three story brick
building known as the Wheeler House that has been converted to
office space.
The City hereby leases to Common Roots a portion of the Wheeler
House comprising the offices, conference room space and storage on
the second floor, not including storage area presently used by the
South Burlington Children’s Library, together with a nonexclusive
right to use the Wheeler House entry room, common stairways, halls,
entrances, kitchen, and first floor programming room space, and a
nonexclusive right to use the parking areas adjacent to the Wheeler
House (the “Premises”).
Common Roots acknowledges that it has inspected the Premises and
hereby accepts same in “as is” condition and the City has made no
warranties and/or representations regarding the condition of the
Premises.
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Nothing in this Lease Agreement shall give Common Roots exclusive
right to occupy or use any structure or garden at Wheeler Park,
including but not limited to, the Community Gardens, Vermont Garden
Park, Tree Nursery, all of which shall remain under the direction
and control of the City.
2. Term. The term of this Lease shall be for three (3) years
commencing with the date of execution of this Agreement (the
“Commencement Date”). Upon expiration of the this term, Common
Roots and the City shall act in good faith to negotiate a renewal
of this Lease Agreement or the execution of a new lease for the
Premises, having terms similar to those set forth herein, provided
both parties are interested in continuing the lease of the
Premises.
3. Rent. Common Roots covenants and agrees to pay the City,
beginning on the Commencement Date, and continuing through the
initial Lease Term, rent at a rate of one dollar ($1.00) per year.
4. Utilities and Other Financial Responsibilities. Common Roots
shall pay all costs of telephone, and internet services. The City
shall pay electric utility charges and heating fuel costs for
Wheeler House. Common Roots shall reimburse the City, within
thirty (30) days of presentment of a bill therefore, sixty percent
(60%) of electric utility charges and sixty percent (60%) of
heating fuel costs for Wheeler House. Common Roots agrees to pay
100% of the electric charges for the months of March, April, May,
& June. Common Roots shall not be charged for water and sewer
services to the Premises, nor for the cost of snow removal or
landscaping, which shall be the responsibility of the City. The
City shall keep the parking areas, driveways and walkways free of
ice and snow as befits the use of the premises as offices and
program space used by the public in accordance with priorities
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established by the City Department of Public Works. The parties
shall review the proportional share of electric and heating
expenses as set forth above and adjust the proportion if it is
evident that the proportion used results in higher costs to Common
Roots.
The City agrees not to levy any property taxes against the
Premises; provided, however that should the State of Vermont
require that the City include the Premises, or any portion thereof,
on the City’s so-called education grand list, for the purposes of
calculating state-wide education property tax, then the City shall
be permitted to assess Common Roots an amount equal to the
education property tax attributable to Common Root’s use of the
Premises as mutually agreed by the parties.
5. Use of Premises. Common Roots shall use the Premises for office
use and programming and for no other purpose. The Premises shall
not be used for any illegal purpose, nor in violation of any valid
regulation of any governmental body, nor in any manner to create
nuisance or trespass, nor in any manner to invalidate the insurance
or increase the rate of insurance on the Premises. If repairs or
alterations to the Premises are required under any state or local
building code or federal ADA accessibility standards, the City
shall be responsible for the cost of such repairs or alterations.
Common Roots shall keep the fee estate of the Premises free and
clear from all mechanic’s and materialmen’s liens and other liens
for labor done, services performed, materials contributed, used or
furnished in or about the Premises, for or in connection with any
operation of Common Roots, or any alteration, improvement, repair
or addition which Common Roots may make or permit or cause to be
made on or about the Lease Premises. If such a lien is filed
against the fee estate of City, Common Roots shall, upon City’s
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demand, immediately escrow suitable money or provide other means
of surety sufficient to obtain the discharge of said lien.
6. Maintenance and Repair. Except to the extent caused by
ordinary wear and tear, casualty, condemnation and obsolescence,
Common Roots shall take good care of the Premises and perform, at
its own cost and expense, all replacement, maintenance, repair,
and upkeep of the Premises used solely by it including janitorial
services and trash removal. The City shall be responsible for
replacement, maintenance, repair or upkeep of doors, foundation,
floors, structural components, heating system, electrical system,
fire alarm system, sprinkler system (if any) and plumbing (potable
water and waste water). Replacement, maintenance, repair, and
upkeep of common areas shall be the responsibility of each user of
the Wheeler House as related to the user’s activity. City and its
designees shall have the right to enter upon the Premises at all
reasonable hours for the purpose of inspecting or making repairs
to the same.
If Common Roots fails to perform its obligations of maintenance or
repair hereunder, City is authorized to enter the Premises, make
such repairs, and upon billing to Common Roots by the City, Common
Roots shall reimburse the City for the costs of such repairs.
Upon the expiration of or prior termination of this Lease, Common
Roots shall remove all property of Common Roots from the Premises
and surrender the Premises to the City “broom clean” in as good
order and condition as they were upon the Commencement Date,
ordinary wear and tear and damage by fire excepted. Any property
left on the premises after the expiration or other termination of
this Lease may be disposed of by City in any manner and without
any liability to Common Roots.
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7. Site Improvements. Common Roots shall not make any changes,
alteration, additions, or improvements to the Premises without the
written consent of the City. At the expiration or earlier
termination of this Agreement, any changes, alteration, additions,
or improvements to the Premises shall become the property of the
City.
8. Force Majeure. During the Lease Term, Common Roots and the
City shall not be required to perform any term, condition, or
covenant in this Agreement so long as such performance is delayed
or prevented by extended and unusual inclement weather, fire,
explosion, casualties or accidents, failure of transportation
facilities, acts of God, epidemics, cyclones, floods, drought, or
by reason of war, declared or undeclared revolution, civil
commotion or strife, acts of public enemies, blockade or embargo,
or by reason of any new law, proclamation, regulation, ordinance
or demand by any government authority, inability to procure
materials for constructing the Facilities for which there is no
suitable replacement, failure to obtain, after exercising
reasonably diligent efforts, necessary governmental permits,
authorizations and approvals and any other cause not reasonably
within the control of the City or Common Roots and which, even
with the exercise of due diligence, the City or Common Roots is
unable, wholly or in part to prevent or overcome (collectively, a
“Force Majeure”).
9. Insurance. Common Roots shall provide on or before the
Commencement Date and keep in force during the Lease Term the
following insurance:
a. General liability insurance with respect to the Premises
including personal injury and other medical payment coverage
on an occurrence basis with minimum limits of liability in
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the amount of $1,000,000 per occurrence and $2,000,000
aggregate for bodily injury, and $2,000,000 with respect to
loss or damage to property. Such policies and renewals
thereof shall name the City as an additional insured - non-
contributory and primary.
b. Adequate insurance for loss of personal property, trade
fixtures and equipment or other property of Common Roots.
c. Workers’ compensation coverage for all Common Roots
employees working on the Premises.
Common Roots shall provide the City with certificates of insurance
and/or policies. All insurance policies shall be issued by
insurance companies licensed to do business in the State of
Vermont, and shall otherwise be reasonably acceptable to both
parties.
10. Quiet Enjoyment. The City agrees that Common Roots upon
paying the rent and complying with the provisions of this
Agreement, shall peaceably and quietly have, hold, occupy and enjoy
the Premises for the Lease Term without hindrance by the City, or
anyone claiming through the City.
11. Hazardous Materials. Common Roots shall not use, transport,
store, dispose of or in any manner deal with hazardous materials
on the Premises, except in compliance with all applicable federal,
state and local laws, ordinances, rules and regulations. The term
“hazardous materials” as used in this Agreement shall include,
without limitation, gasoline, petroleum products, explosives,
radioactive materials, or any other substance or materials defined
as a hazardous or toxic substance or material by any federal, state
or local law, ordinance, rule or regulation (collectively
“Environmental Laws”).
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Common Roots shall protect, defend, indemnify and hold the City
harmless from and against any and all loss, claims, liability or
costs (including court costs and attorney's fees) incurred by
reason of any actual or asserted failure of Common Roots to fully
comply with all applicable Environmental Laws, or the presence,
handling, use or disposition in or from the Premises of any
Hazardous Materials, or by reason of any actual or asserted failure
of Common Roots to keep, observe, or perform any provision of this
paragraph.
12. Fire and Other Casualty. If the Wheeler House, or any portion
thereof, shall be damaged during the term by fire or other casualty
the City may, at its option, terminate this Lease.
The City and its agents shall not be liable for the loss of or
damage to any property of Common Roots by fire or other casualty
or from any other cause whatsoever; nor shall the City or its
agents be liable for any damage caused by other tenants or persons.
13. Liability and Indemnification. Common Roots shall indemnify
the City and save the City harmless from suits, actions, damages,
liability and expenses arising from or out of or caused by the
construction and use or occupancy of the Premises or any part
thereof or any act or omission of Common Roots, its agents,
contractors, employees, servants, invitees, licensees, or
concessionaires, unless caused by acts or omissions on the part
of, or breach of this Agreement by the City, its agents,
contractors, employees, servants, invitees, licensees, or
concessionaires, and the City shall indemnify Common Roots and
save Common Roots harmless from such suits, actions, damages,
liability and expense arising out of or caused by such breach, act
or omission.
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14. Eminent Domain. During the term of this Agreement, if the
whole of the Premises or such portion of which if removed would
materially adversely affect Common Roots’ use and enjoyment of the
Premises is taken in a condemnation proceeding by the State of
Vermont or the Federal Government or by any right of eminent domain
of the State of Vermont or the Federal Government, this Agreement
shall terminate on the date of such taking. During the term of
this Agreement, if the whole of the Premises or such portion of
which if removed would materially adversely affect Common Roots’
use and enjoyment of the Premises is taken in a condemnation
proceeding by the City or by any right of eminent domain of the
City, this Agreement shall terminate 120 days from the date of
such taking.
15. Signs. Common Roots shall have the right to affix or otherwise
display on any part of the Premises any sign, advertisement or
notice that is in accordance with any approvals required under the
City’s Sign Ordinance, and any other applicable regulation,
statutes or laws.
16. Default after Occupancy. If Common Roots shall neglect or
fail to perform or observe any of the covenants, terms, provisions
or conditions contained in these presents and on its part to be
performed or observed within thirty (30) days after notice of
default, or such additional time as is reasonably required to
correct any such default, or if the estate hereby created shall be
taken on execution or by other process of law, or if Common Roots
shall be judicially declared bankrupt or insolvent according to
law, or if any assignment shall be made of the property of Common
Roots for the benefit of creditors, or if a receiver, guardian,
conservator, trustee in involuntary bankruptcy or other similar
office shall be appointed to take charge of all or any substantial
part of Common Roots’ property by a court of competent
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jurisdiction, or if a petition shall be filed for the
reorganization of Common Roots under any provisions of the
Bankruptcy Act now or hereafter enacted, and such proceeding is
not dismissed within sixty (60) days after it is begun, or if
Common Roots shall file a petition for such reorganization, or for
arrangements under any provisions of the Bankruptcy Act now or
hereafter enacted, and providing a plan for a debtor to settle,
satisfy or extend the time for payment of debts - then, and in any
said cases (notwithstanding any license of any former breach of
covenant or waiver of the benefit hereof or consent in a former
instance), City lawfully may, in addition to any remedies otherwise
available to City, immediately or at any time thereafter, according
to applicable law and appropriate authority, enter into and upon
the said Premises or any part thereof in the name of the whole and
repossess the same, and expel Common Roots and those claiming
through and under it and remove its or their effects, and without
prejudice to any remedies which might otherwise be used for arrears
of rent or preceding breach of covenant and/or City may send
written notice to Common Roots terminating the term of this Lease;
and upon the first to occur of (a) entry as aforesaid, or (b) the
fifth (5th) day following mailing of such notice of termination,
the term of this Lease shall terminate.
17. Attorneys’ Fees. In the event either party institutes legal
proceedings against the other for breach of or default under any
of the terms, conditions, or covenants of this Agreement, the
substantially prevailing party shall be entitled to all costs,
charges, and expenses relative thereto, including the reasonable
attorneys’ fees of the substantially prevailing party.
18. Subletting and Assigning. Common Roots shall not sublet any
portion of the Premises nor assign this Lease in whole or in part
without the written consent of the City, as to both the terms of
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such assignment or sublease and the identity of such assignee or
sublessee, and in the event of a subletting so approved by the
City, Common Roots shall nevertheless remain obligated to the City
under the terms of this Lease.
19. Successors and Assigns. All rights and liabilities herein
given to, or imposed upon, the respective parties hereto shall
extend to and bind the several respective successors and permitted
assigns of the parties.
20. Non-Waiver. No failure by either party to insist upon the
strict performance of any term hereof or to exercise any right,
power, or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent during the continuance of any
such breach, shall constitute a waiver of any breach of any such
term. No waiver of any breach shall affect or alter this
Agreement, which shall continue in full force and effect, or the
rights of either party with respect to any other existing or
subsequent breach.
21. Severability. It is the intention of the parties hereto that
if any provision of this Agreement is capable of two constructions,
one which would render the provision valid, then the provision
shall have the meaning which renders it valid. If any term or
provision or any portion thereof of this Agreement, or the
application thereof to any person or circumstances, shall, 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 of
this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
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22. Entire Agreement, Applicable Law. This Agreement, with any
exhibits and riders attached hereto, contains the entire agreement
of the parties and no representations, inducements, promises or
agreements not embodied herein shall be of any force or effect,
unless the same are in writing and signed by or on behalf of the
party to be charged. The captions of particular sections are
inserted as a matter of convenience and in no way affect or define
the scope or intent of this Agreement or any provision thereof.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Vermont without reference to its
principals of conflicts of laws.
23. Captions. The captions and numbers appearing herein are
inserted only as a matter of convenience and are not intended to
define, limit, construe, or describe the scope or intent of any
section or paragraph, nor in any way affect this Agreement.
24. Notices. Any notice required to be given by the terms of
this Agreement shall be deemed duly served if sent by certified
mail, return receipt requested, or other traceable method of
delivery requiring a signature to the following addresses:
If to the City:
City of South Burlington 575 Dorset Street South Burlington, VT 05403
Attn: City Manager
If to Common Roots:
Common Roots, Inc.
PO Box 9335 South Burlington, VT 05407
Attn: Board Chair
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25. Recording. The City and Common Roots agree that this
Agreement shall not be recorded. If either party wishes to prepare
and record a Memorandum of Lease, the other party covenants to
cooperate and execute the Memorandum for that purpose.
26. Estoppel. From time to time upon no less than fifteen (15)
business days’ prior written notice, the City shall execute,
acknowledge and deliver to Common Roots and any designee of Common
Roots a written statement certifying: (a) that this Agreement is
unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and stating the
modifications); (b) the dates to which rent and any other charges
have been paid; (c) that the City, and to the knowledge of the
City, Common Roots is not in default in the performance of any
obligation (or specifying the nature of any default); (d) the
address to which notices are to be sent; and (e) such other matters
of a factual nature concerning the status of the Agreement as
Common Roots may request. Any such statement may be relied upon
by any lender of Common Roots.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date first above-written.
IN PRESENCE OF: THE CITY OF SOUTH BURLINGTON
________________________ By:____________________________
Witness Duly authorized agent
COMMON ROOTS, Inc.
________________________ By:____________________________
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Witness Duly authorized agent
STATE OF VERMONT CHITTENDEN COUNTY, SS.
At South Burlington in said County and State, this ____ day of ____________, 2016, personally appeared ______________________,
Duly Authorized Agent of The City of South Burlington, and he/she acknowledged the foregoing instrument, by him/her sealed and subscribed, to be his/her free act and deed and the free act and deed of the City of South Burlington. Before me, ______________________
Notary Public My commission expires:____________
STATE OF VERMONT CHITTENDEN COUNTY, SS.
At South Burlington in said County and State, this ____ day of ____________, 2016, personally appeared _____________________, Duly Authorized Agent of Common Roots, Inc., and he/she acknowledged the foregoing instrument, by him/her sealed and subscribed, to be his/her free act and deed and the free act and
deed of Common Roots.
Before me, ______________________ Notary Public My commission expires:____________