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HomeMy WebLinkAboutCSD-09-045 - Amendment to Community Garden Licence Agreement Template REPORT REPORT TO: Community Services Committee DATE OF MEETING: August 10, 2009 SUBMITTED BY: Pauline Houston, General Manager, Community Services PREPARED BY: Renate Willms, Supervisor of Administration (Ext. 2395) WARD(S) INVOLVED: All DATE OF REPORT: July 21, 2009 REPORT NO.: CSD-09-045 SUBJECT: AMENDMENT TO COMMUNITY GARDEN LICENCE AGREEMENT TEMPLATE RECOMMENDATION: That the Community Gardens Licence Agreement template be amended as outlined in Report No. CSD-09-045. That the General Manager of Community Services, or designate, be authorized to execute Community Gardens License Agreements, all such license agreements to be subject to the satisfaction of the City Solicitor. REPORT: On June 29, 2009, Council approved changes to the community garden grant policy which is a component of Community Investment Policy I-525. Community garden grant requests are processed by staff upon receipt and funded through operating budget. Council approval is no longer required for each specific grant request and the community garden licence agreement template has been amended accordingly to reflect that change. A copy of the revised agreement is attached for reference. FINANCIAL IMPLICATIONS: None. ACKNOWLEDGED BY: Pauline Houston, General Manager, Community Services Department î ó ï COMMUNITY GARDENS - THIS LICENCE AGREEMENT made this day of , 200 -. B E T W E E N: THE CORPORATION OF THE CITY OF KITCHENER (the "City") - and - {insert name} (the "Licensee") WHEREAS the City is the registered owner of the property known at or in the vicinity of {insert address, legal description and/or name of park}, Kitchener (the "Property"); AND WHEREAS the Licensee has submitted a request and wishes to establish and maintain a Community Garden to be known as the{insert garden name} Garden (herein referred to as the "Garden") in the area shaded in red on “Schedule "A"- Key Plan – Not to Scale" (hereinafter, the “Garden Area”) and showing part of the Property; AND WHEREAS the Council of the City, in Council Policy Resolution I-525 dated November 24, 2008 and amended June 29, 2009, and in CSD Report 09-045 dated July 21, 2009 ,recognizes that Community Gardens are an investment in the community; AND WHEREAS the Community Services Department of the City has agreed to give the Licensee {insert a one time contribution of in-kind services and/or money as set out below in the total amount of figure not to exceed Two Thousand Dollars ($2000.00)} for start up costs of the Garden as set out below; NOW THEREFORE, in consideration of the mutual covenants contained herein and the sum of TWO ($2.00) DOLLARS now paid by the Licensee to the City, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: GRANT FROM THE CITY AND TERM 1. (a) The City grants the Licensee and its invitees permission to enter onto the Property from time to time between May 1st and October 31st, and/or such other times within the term of the Agreement as arranged with the City's Director of Operations, or designate, to establish and maintain a Community Garden in the Garden Area, unless the City terminates this Licence Agreement. (b) “Community Garden” is defined as a place where people come together to grow fruits, flowers and/or vegetables on a non-commercial basis. (c) The City shall provide one time services in-kind, {insert services - e.g., delivery of topsoil, compost, rototilling, etc.}in an amount not exceeding $ {insert cap on cost of in-kind services}and a cash grant in the amount of $ {insert cash grant, if any}. (d) The City shall facilitate and support the Community Garden in the following ways: (i) Assist with advertising and promoting Community Garden events through the Community Center(s); (ii) Liaise, when possible, with any adjacent property owners, on behalf of the Licensee; (iii) Assist with gardening advice on set up and with co-ordination of Community Garden projects, and (iv) Any other such support specifically set out in the attached Resolution at Schedule "B". TERM: (e)This Agreement shallbe for a period of one year from the date hereof, unless terminated 1 î ó î pursuant to the terms of this Agreement. RESPONSIBILITIES 2. (a) The Licensee shall establish and maintain the Garden exclusively within the Garden Area in cooperation with the City. (b) The Licensee shall permit its invitees to establish and maintain the Garden at a nominal cost. Garden plots must be allotted in a fair and equitable manner. (c) The Licensee shall ensure that the produce from the Garden is either used personally by the invitees, donated to the Licensee or to a recognized Charitable organization and that it is not disposed of for gain. (d) The Licensee shall not do or permit to be done on the City Property anything that may: (i) constitute a nuisance; (ii) cause damage to the City Property; (iii) cause injury or annoyance to the occupants of neighbouring properties; (iv) make void or voidable any insurance upon the City Property; or (v) constitute a breach of any by-law, statute, order or regulation of any municipal, provincial or other competent authority relating to the City Property. (e) The Licensee shall keep the other parts of the Property clear of any material used or otherwise associated with the establishment and maintenance of the Garden. (f) The Licensee shall enter upon the Property only from dawn until dusk. (g) Save and except as set out herein, the Licensee shall pay the entire cost of the Garden, including supplying at its expense all equipment and materials required to establish and maintain the Garden. However, the City, at its sole discretion, may supply and pay for a reasonable amount of water required to establish and maintain the Garden and only if existing City owned service is readily available. (h) The Licensee shall leave the Garden in a tidy condition at all times, including grass cutting and trimming and make all arrangements for waste management and disposal for the Garden. (i) The Licensee shall not erect any fences, structures or storage facilities, permanent or temporary, without the prior written approval of the City and, in any event all approved structures or storage facilities must comply with all necessary laws and regulations, must not require a building permit (e.g., less than 107 square feet) and must be easily movable. (j) The Licensee shall not use pesticides without express written consent from the City. (k) The Garden must operate in harmony with other activities in the park and/or area. (l) The Licensee shall keep the City advised as to the progress and any concerns relating to the Garden and, in any event, shall give the City status reports, an updated list of contacts and/or members of the Licensee and plans for the coming year by March 31 of each year of this agreement. (m) All maintenance standards of the Operations Division of the City must be adhered to at all times. LIABILITY FOR DAMAGE TO PROPERTY AND PERSONS 3. (a) The Licensee does hereby assume all risk of damage to or loss of its equipment howsoever caused, and does hereby release the City from all claims and demands with respect thereto including damage to or loss of equipment arising from the act, default, or omission of the City, its agents, servants, employees, subcontractors, customers, invitees or licensees (collectively within Section 3 and 4, the "City") or resulting from any cause whatsoever (save and except damage or loss resulting solely from the City's wilful or reckless disregard or gross negligence). (b) The Licensee does hereby assume all risk of any injury, including death, to its agents, servants, employees, subcontractors, customers, invitees or licensees on City lands, including injury occasioned by or arising from the act, default, or negligence of the City or resulting from any cause 2 î ó í whatsoever (save and except damage or loss resulting solely from the City's wilful or reckless disregard or gross negligence). INDEMNITY 4. (a) The Licensee shall protect and defend the City and indemnify and hold it harmless from any and all claims, demands, actions, losses, causes of action, proceedings, suits, damages, expenses or liability of any kind, including reasonable legal fees and expenses of litigation, brought by any person, whether in respect of damage (including death) to person or property, arising from any occurrence occasioned, whether in whole or in part whether directly or indirectly, by an act or omission or negligence of the Licensee, its agents, servants, employees, subcontractors, customers, invitees or licensees. (b) The Licensee further shall protect and defend the City and indemnify and hold it harmless from all liabilities and claims against the City, including fines, penalties and interest, in any way arising out of its failure to deduct, withhold or contribute any amount including federal or provincial income taxes, federal or provincial pension plan contributions, Employment Insurance premiums, Workplace Safety & Insurance Board premiums and contributions under any federal or provincial social insurance or income security programs. (c) The Licensee agrees that the indemnities contained in this Agreement shall not be prejudiced by and shall survive the termination of this Agreement. LIMITATION 5. Nothing herein contained shall be construed as giving the Licensee more than the permission to enter the City Property to establish and maintain the Garden. ASSIGNMENT 6. The Licensee shall not assign this Licence Agreement nor any rights hereunder. TERMINATION 7. The City or the Licensee may terminate this Licence Agreement immediately on thirty (30) days written notice to the Licensee. In the event of a breach of the terms of this Agreement, the City may immediately terminate this Agreement. NOTICE 8. All notices or other documents provided by the Licensee to the City pursuant to this Agreement are to be set forth in writing and delivered personally or by registered mail to the City at: Director of Operations Division Attention: The Corporation of the City of Kitchener 82 Chandler Drive Kitchener, ON to the Licensee at: Attention: Kitchener, Ontario {insert full address of the Licensee and contact name} All notices and other documents, except insurance documents, which are sent by registered or regular mail, shall be deemed to have been received on the fifth (5th) business day after mailing. Any insurance documents that the City may require at its discretion shall be deemed to be received on acknowledgment of their receipt by the City. ENTIRE LICENCE AGREEMENT 9. This Licence Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiation and 3 î ó ì discussions with respect to the subject matter hereof whether oral or written. No supplement, modification, amendment or waiver of this Licence Agreement shall be binding unless executed in writing by both parties. LICENCE AGREEMENT BINDING 10. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns. NON-WAIVER 11. The failure of the City to exercise any right, power, or option given hereunder, or to insist upon the strict compliance with the terms and conditions hereof by the Licensee shall not constitute a waiver of the terms and conditions of this Licence Agreement with respect to any other or subsequent breach thereof or default hereunder, nor a waiver by the City of its right at any time thereafter to require strict compliance with all terms and conditions hereof. SEVERABILITY 12. The parties acknowledge and agree that if any covenant, obligation, agreement, term or condition of this Licence Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each covenant, obligation, agreement, term and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF the Licensee hereunto executes this Agreement as adopted and pre- approved by the City's Council on August 24, 2009. SIGNED, SEALED AND DELIVERED {insert Licensee Name}: _________________ Date ________________________________ Name: Title: I have authority to bind the Licensee. _________________ ____________________________________________ Date Name: General Manager of Community Services or Designate The Corporation of the City of Kitchener Please sign three original copies of this Agreement for filing with the City. A photocopy will be provided to the Licensee. This agreement pre-approved by Council on August 24, 2009. To be used for all Community Gardens License Agreements as approved by Community Services from time to time - no amendment to the terms hereof may be made without prior approval of the City Solicitor. 4 î ó ë