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HomeMy WebLinkAboutMN-PEDC-2021-04-21 Approved at the January 19, 2022 PEDC Meeting City of Ithaca Planning & Economic Development Committee Wednesday, April 21, 2021 – 6:00 p.m. Common Council Chambers, City Hall, 108 East Green Street 04-21-2021 Planning and Economic Development Committee Meeting Minutes Committee Members Attending: Joseph (Seph) Murtagh, Chair; Cynthia Brock, Stephen Smith, Donna Fleming, and Laura Lewis Committee Members Absent: Alderperson Other Elected Officials Attending: None Staff Attending: JoAnn Cornish, Director, Planning and Development Department; Jennifer Kusznir, Senior Planner; Nick Goldsmith, Sustainability Coordinator; Ari Lavine, City Attorney; and Deborah Grunder, Executive Assistant Others Attending: PUD - Craig Modisher and Noah Demarest, Stream Collaborative; Linc Morse, 407 Holding, LLC. Community Gardens – Dan Hoffman, Marty Hiller, and Sheryl Swink IECS – Ian Shapiro Chair Seph Murtagh called the meeting to order at 6:00 p.m. 1) Call to Order/Agenda Review No changes were made to the agenda. 2) Public Comment No one signed up for public comment. Approved at the January 19, 2022 PEDC Meeting 3) Special Order of Business a) PUD Presentation – Cliff Street Retreat Noah Demarest and Linc Morse provided a presentation of this project. No changes to setbacks, etc. or any other zoning requirements so there is no need for variances. The title might change. Incodema will start their move on Monday, April 26th. Alderperson Fleming asked for a picture of where the trail is going down to Cass Park. This still has to be configured. David Nutter has offered his assistance in coming up with it. Alderperson Fleming also asked who they might see using this facility. Linc Morse commented that this might be a very good alternative of a typical hotel. A guest would be able to bike right out of their back door to all waterfront amenities. Noah Demarest that they see local groups, etc. renting for meetings, etc. The space is flexible to accommodate different size groups. Alderperson Lewis stated she really likes this project. She also had a question as to how people would get down from the steep slope to the waterfront trail, etc. Noah Demarest also stated that the length of the building will follow along it and connect with the Black Diamond Trail. Alderperson Lewis asked about changing up the rooms to accommodate different size families. She also asked about parking. Demarest stated they have no plans to seek more parking spaces for this project. Linc Morse further stated that they will have biking stations in the hope people will take advantage of this type of transportation. The use of TCAT buses was also discussed. Perhaps that area could be a bus stop. Approved at the January 19, 2022 PEDC Meeting 4) Action Items (Voting to Send onto Council) a) Cliff Street Retreat PUD – Approval in Concept and Permission to Circulate Alderperson Brock wanted to say that she thinks there is a lot of interest in this project. There's a lot of excitement to see. As Laura mentioned the reuse of this facility for multiple uses, she really appreciates that. Lincoln was immediately responsive when I reached out to him and asked him to meet with adjacent residents to discuss the project. She has always found him and his team to be incredibly accommodating and actively listening to the concerns that people have raised as they have mentioned. She thinks that there's incredible excitement about the idea of having a local gathering place. She thanked the project group for their thorough thought of what is needed or requested by the West Hill community. She is very happy to circulate this. Moved by Alderperson Brock; seconded by Alderperson Smith. Carried unanimously. An information session will be held and this will come back to this committee next month. TO: Planning and Economic Development Committee FROM: Jennifer Kusznir, Senior Planner DATE: April 9, 2021 RE: Planned Unit Development Application for 407 Holding, LLC to be located at 407 Cliff Street On March 18, 2021, the City of Ithaca received the enclosed application from 407 Holding, LLC, for a Planned Unit Development (PUD) project to be located at 407 Cliff Street. According to § 325-12 Planned unit developments (PUD), properties located within the City’s Planned Unit Development Overlay District (PUDOD), may apply to the Common Council for consideration to establish a PUD in order to permit uses not explicitly allowed by the underlying zoning if they offer communitywide benefits. The PUD legislation states that the Common Council will consider the application for any PUD on the following criteria, among others: 1. Does the project further the health and welfare of the community? 2. Is the project in accordance with the City Comprehensive Plan? 3. Does the project create at least one long-term significant community benefit? Approved at the January 19, 2022 PEDC Meeting The proposed project involves the repurposing of the 25,297 SF building located at 407 Cliff Street, from industrial/manufacturing space into long stay and short stay residential use, along with a small conference and meeting room function, office spaces, maker spaces, and retail space along the street. The proposal includes the following elements: • Residential Development—13 one-bedroom units, for short- and long-term rental. • Office Space—3438 SF of area, divided into approximately 6 offices, a break room, and 2 meeting rooms. • Retail Space — 3900 SF total, potentially divided into 1-6 separate spaces. • Light Industrial Spaces— 2 “maker spaces” at 1200 SF each. • The lobby and lounge area are approximately 2000 SF, with an 840 SF conference room. The applicant notes that this project will result in the following potential community benefits resulting from this project: • Pedestrian connection between Cass Park/Children’s Garden/Black Diamond Trail and the West Hill Community, via a walking path up the hill (contingent on City approval) • An opportunity for retail space and maybe a small cafe, which is sorely missing from the West Hill community currently. This may help with limiting car traffic down the hill into the City further. • An opportunity for a community gathering space. • The mix of uses all contained in an existing building creates a diversified workforce opportunity that would not be seen with a purely residential infill project, which is all that is currently allowed under the R-3a zoning. This can be an economic engine for the West Hill neighborhood. • These much quieter retail and residential uses are a better fit for this neighborhood than the existing light industrial use. • There will not be tractor trailer trucks coming to this site multiple times a week/day, like there is currently, since we are moving away from Light Industrial use. 3 • The new mix of uses for the building should at least be maintained, if not increase the tax revenue for the County and City of Ithaca. Again, an economic engine located in the West Hill neighborhood. • Including non-industrial uses will require investigation and cleaning of the site of any potential environmental contaminants to meet the standards for unrestricted residential. The new walkway will provide a protected accessible path to each of the new retail storefronts. • The careful removal of invasive species to encourage more native plants along the adjacent city-owned property will also be a part of this project. • Improved dark-sky compliant exterior lighting which would not be required for another industrial user. • Energy efficiency improvements will be made to the building’s envelope and mechanical systems reducing overall carbon footprint which would not otherwise be needed/required for another industrial user. The application has been reviewed by staff for completeness and has been found to be satisfactorily complete for distribution and review. If the committee agrees, this application will be circulated for comments and a public information session will be held, in accordance with the PUD requirements. If you have questions or require additional information, please feel free to contact me. Approved at the January 19, 2022 PEDC Meeting b) Carpenter Park Land Swap and Community Gardens Lease ORDINANCE __ -2021 Moved by Alderperson Lewis; seconded by Alderperson Smith. Carried unanimously. Alderperson Brock asked about deeding this property to the community gardens. She stated she provided wording for the maintenance plan. Lisa Nicholas and JoAnn Cornish discussed this and determined that there already is a maintenance policy in the City ordinance so there is no need for another maintenance policy. An Ordinance to Exchange Lands for and Lease Exchanged Lands to the Ithaca Community Gardens . Marty Hiller stated that the change in the maintenance policy is new to their group so they would have to look at that before agreeing to anything. Conditions are building permits needed by CMC and conditions are required for storage of plants, etc. She further stated it is her understanding that the PUD would have to be completed before this land swap takes place. Deputy Director Lisa Nicholas stated that her understanding is correct. City Attorney Ari Lavine stated that is correct. Any grading of the property will be done after the site-plan review process is done. Dan Hoffman reminded everyone that the gardens already have an ongoing lease. The gardens enter into this lease with the hope that it would be more secure. Alderperson Brock asked about the change in the term of years for this lease. Alderperson Brock would like to review the leases currently with the Hanger Theatre, the Childrens’ Garden and the Farmers Market to compare. Attorney Lavine stated that could be done, but also wanted to state that the City has every right to provide these areas at a minimal fee or no fee at all. Hiller responded to Alderperson Brock regarding comparing the leases to other City leases. She doesn’t think there is a comparison. Alderperson Brock moved to change the term of the lease to 25 years. No one seconded. The motion failed. WHEREAS, presently before Common Council is a proposal requesting that the City release its rights to the Tax Map Parcel 36.-1-3.4, which is described in a deed recorded on July 17, 1991 as Book 663, page 144 (“City Swap Parcel”), in exchange for the now-privately held parcel owned by CMC at Ithaca, Inc. (“CMC Swap Parcel”); and WHEREAS, also before Common Council is a proposal from Ithaca Community Gardens, Inc. (“ICG”) requesting that the City lease to ICG the City’s rights to the CMC Swap Parcel upon acquisition to continue the operation and maintenance of community gardens; and Approved at the January 19, 2022 PEDC Meeting WHEREAS, the City Swap Parcel will facilitate CMC’s development of its site into a medical office building, 2 mixed-use commercial and multi-family buildings, and one affordable housing residential building, and the CMC Swap Parcel will afford the City and ICG with long-term security for the community gardens location; and WHEREAS, in consideration for the City’s release of the City Swap Parcel in exchange for deeded rights to the CMC Swap Parcel, the City and CMC have negotiated an agreement that CMC will pay the City $82,355.00, which the parties agree represents fair value for the differential in value between the Swap Parcels; and WHEREAS, General Municipal Law §96 affirms that a municipality’s holding of land for community gardening uses is a valid exercise of municipal powers, and it is generally agreed that community gardening is a valuable public benefit for City residents; and WHEREAS, the City is interested in entering into a 30-year lease for $1 per year with ICG in exchange for ICG’s continued commitment to provide affordable community garden plots, especially for City residents and low-income residents, and to remain responsible for all utilities, other amenities, and responsibilities associated with the site; and WHEREAS, the City Charter requires approval by three-fourths of the Common Council to authorize divestment or lease of real property; now, therefore BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca as follows: Section 1. Legislative Intent and Purpose. The Common Council makes the following findings of fact: A. The consideration offered by CMC is adequate to release the City’s interests in the City Swap Parcel in exchange for the CMC Swap Parcel. B. The City affirms that community gardening is a valuable public benefit to the City. C. The City desires to continue providing its lands for community gardening purposes, as leased by ICG, and this land swap between the City and CMC affords long-term stability for community gardens within the City of Ithaca. Section 2. Approval and Execution of Deed. The Common Council authorizes and directs the Mayor, on the advice of the City Attorney, to execute such documents as necessary to effect the exchange of the City Swap Parcel for the CMC Swap Parcel including payment to the City of $82,355, and to effect the lease of lands to ICG under a lease substantially similar to the lease included herewith. Section 3. Effective Date. This ordinance shall take effect immediately upon publication as provided in the City Charter. LEASE AGREEMENT FOR ITHACA COMMUNITY GARDENS THIS LEASE AGREEMENT is entered into this ____ day of _______ of 2021, by and between the CITY OF ITHACA, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of New York, with offices at 108 E. Green Street, Ithaca, NY 14850, hereinafter referred to as "LESSOR" and/or “City,” and ITHACA COMMUNITY GARDENS, INC., a not-for-profit corporation, duly organized and existing under and by virtue Approved at the January 19, 2022 PEDC Meeting of the laws of the State of New York, with an address at Post Office Box 804, Ithaca, NY 14851, hereinafter referred to as “LESSEE” and/or “ICG.” WHEREAS, the City of Ithaca’s Comprehensive Plan (2015) includes a bold commitment to making community gardens available to all City residents who wish to use them, and to enhancing food security for City residents; and WHEREAS, New York State, through its policies and programs, encourages and supports the development and facilitation of community gardens on public lands; and WHEREAS, the Ithaca Community Gardens (the largest in Tompkins County, with more than 160 plots) has been in continuous operation since 1976; and WHEREAS, the Ithaca Community Gardens is now operated by Ithaca Community Gardens (ICG), a NYS not-for-profit entity, incorporated in 2020; and WHEREAS, Ithaca Community Gardens strives to ensure diversity among its gardeners, and has many low-income gardeners who reside or work in the City, as well as many refugee families, maintaining plots at the Ithaca Community Gardens; and WHEREAS, the Ithaca Community Gardens has leased land initially from New York State Electric & Gas since 1983, and since 1986 from the City of Ithaca, at an affordable cost, in exchange for its commitment to maintain and operate the Ithaca Community Gardens at that site, for the benefit of City of Ithaca residents, especially those in financial need or without other access to land suitable for growing food; and WHEREAS, the remainder of the Carpenter Business Park, now owned by CMC at Ithaca, Inc. (“CMC”) an affiliate of Cayuga Medical Center and surrounding the Ithaca Community Gardens, is slated to be developed, by Park Grove Realty (PGR), for a CMC medical facility, an affordable housing facility, and mixed-use (commercial/residential) purposes; and WHEREAS, CMC and PGR have asked that a portion of the City land now leased by ICG (that is “developable”) be exchanged, by the City, for certain (“non -developable”) land Approved at the January 19, 2022 PEDC Meeting within Carpenter Business Park now owned by CMC, that is of comparable size and food gardening utility, and that would be leased by the City to ICG; and WHEREAS, ICG has reached agreement with CMC and PGR as to certain of the terms of such an exchange, including renewed infrastructure of the Gardens to be provided by PGR, that would compensate ICG for the costs required as a result of the Gardens reconfiguration, contingent upon the City’s approval of said exchange as well as a new, long-term lease acceptable to ICG, and terminable by the City only in the event of ICG’s default; it is now therefore agreed that THIS NEW LEASE, between LESSEE and LESSOR - superseding all prior such leases - is intended to recognize said land exchange and the reconfigured boundaries of the Ithaca Community Gardens, and to provide said Gardens with enhanced security and land tenure, in recognition of the substantial and unique value that LESSEE and said Gardens contribute to the City and its residents, and consistent with the City’s Comprehensive Plan. The parties hereto agree as follows: ARTICLE ONE: LEASED PREMISES LESSOR shall lease to LESSEE the premises more particularly described in Schedule “A,” hereinafter referred to as the “Leased Premises” or the “Premises,” attached hereto and incorporated herein by reference, together with all the rights, privileges, easements and appurtenances thereunto belonging or attaching, including the right of quiet enjoyment, subject to the provisions, conditions and covenants contained in this Lease Agreement. -- NEED NEW LEGAL DESCRIPTION of reconfigured City land, based on new survey - ARTICLE TWO: TERM OF LEASE LESSOR hereby leases the Premises to LESSEE for an initial term (the “Initial Term”) commencing upon transfer by deed of certain lands presently owned by CMC to the City as described in the Land Swap Agreement dated ___ of 2021, hereby incorporated as Schedule Approved at the January 19, 2022 PEDC Meeting “E,” and ending on December 31, 2050, which term may be renewed or extended by agreement of the parties or their successors or assigns as follows: (a) This Lease will automatically renew for one renewal term of twenty (20) years upon timely satisfaction of both of the following conditions: i. LESSEE submits to LESSOR written notice of renewal at least 2 years and six months prior to the expiration of the Initial Term provided for herein in a format substantially similar to the notice attached as Schedule “D,” and ii.after receiving such timely notice, LESSOR does not, by the date one year and nine months prior to the expiration of the Initial Term, notify LESSEE of its determination of non-renewal; or (b) After the end of the renewal term, or in the event LESSEE fails to submit timely notice as indicated in paragraph (a) above and LESSOR has not otherwise notified LESSEE of its determination of non-renewal, the Lease shall renew on an annual term, and LESSOR may terminate the lease upon no less than 9 months’ notice prior to the termination of the then- current annual term. ARTICLE THREE: RENT For and in consideration of the leasing aforesaid, LESSEE hereby covenants and agrees to pay to LESSOR, as and for rent for the Leased Premises, the sum of $1 per year, which sum is hereby acknowledged by LESSOR to have been paid in advance for the entire term of this lease, at the time of execution of this Lease Agreement. As and for additional consideration, the substantial and unique value of which is acknowledged by LESSOR, LESSEE agrees to operate, maintain and oversee a public community garden program for the City of Ithaca and its residents, as described in ARTICLE FOUR hereof, for the term of this Lease, utilizing the Leased Premises. LESSEE shall be solely responsible for payment of any and all fees or bills associated with utility use, assessments or taxes which may be imposed upon the Leased Premises. ARTICLE FOUR: USE AND MAINTENANCE OF PREMISES a) LESSEE agrees that gardening operations shall not resume on the Leased Premises after its infrastructure is renewed by PGR until the garden plot layout, one bay of each storage shed, and both compost areas have been installed in accordance with the approved site plan. All fencing to be installed by LESSEE must be completed within six months after gardening Approved at the January 19, 2022 PEDC Meeting resumes. LESSEE’s failure to comply with this subparagraph (a) shall constitute default under the terms of this Lease. b) LESSOR affirms the public benefit provided to residents of the City of Ithaca by the existence and operation of the Community Gardens at the Leased Premises. LESSEE covenants and agrees that it will, during the period of this lease, reasonably continue to use said Premises and any buildings and improvements situated thereon for public community gardens as that term is defined in the Ithaca City Code, and to operate, maintain and oversee the Community Gardens, as a benefit for the City of Ithaca, with participation open to the general public, specifically for but not limited to City residents and low-income gardeners, and to provide outreach to and accessibility for low income gardeners. In addition, the Premises will be open during daylight hours to visits by members of the general public, with reasonable posted regulations designed to protect the tools, materials, and garden plots of duly registered gardeners and LESSEE’s materials, tools and improvements. c) LESSEE further covenants and agrees that at all times during the lease term: 1. The Premises, including the buildings and improvements situated thereon or connected therewith and all appurtenances thereto and equipment thereof, shall be kept by LESSEE at its own expense in good repair and in a clean and safe condition and in conformity with the requirements of all municipal, county, state and federal laws, rules and regulations, in a manner consistent with the Maintenance Policy attached hereto as Schedule B, recognizing that as part of the ordinary operations of the Community Gardens the Premises may be used for all aspects of gardening including winter gardening and allowing plants to go to seed; 2. All health, police, zoning, fire, building, subdivision, and other regulations shall, in all respects, be fully complied with by LESSEE and, in particular, that at the end of the growing season the Premises will be appropriately cleaned and winterized, also in a manner consistent with the attached Maintenance Policy; and 3. LESSEE will not remove or permit to be removed any existing building or improvement from the Premises except with the consent of LESSOR or as provided for in this Lease (such as is shown in the approved site plan, or at termination of the lease term). Approved at the January 19, 2022 PEDC Meeting d) It is hereby agreed that the attached Schedule B (“Maintenance Policy”) may be modified or amended by written agreement of LESSEE and the Mayor and Planning Director of the City of Ithaca, on behalf of LESSOR. If at any time, LESSOR determines that LESSEE does not meet the standards of maintenance as described in this lease, then and in that event, LESSOR shall so inform LESSEE in writing. LESSEE shall have sixty (60) days thereafter to either correct said deficiency or deficiencies or submit a plan along with a request for additional time if needed, such additional time not to be unreasonably withheld by LESSOR. e) LESSEE agrees to provide a gardener membership plan ensuring that City residents and low-income gardeners that wish to garden on the Leased Premises have an opportunity to do so, within the constraints imposed by the total number of garden plots available. Such a plan shall be incorporated into this Lease by reference and LESSEE shall provide to LESSOR a copy of any updates or amendments to the plan. ARTICLE FIVE: IMPROVEMENTS It is understood and agreed that in the event that LESSEE shall construct, erect or install buildings and structures or landscaping upon the Premises during the term of this Lease Agreement, or any extension thereof, such buildings shall be used solely for the purposes set forth in ARTICLE FOUR hereof. With the exception of the structures shown in the site plan attached hereto as Schedule C, ICG’s installation or construction of any additional structures with a footprint larger than 250 square feet shall require the approval of the Common Council of the City of Ithaca, which approval may be granted based on a map showing the proposed location and approximate size of the structure. Any other improvements proposed by LESSEE shall be subject to City of Ithaca site plan review, if applicable. ARTICLE SIX: WATER, SEWERAGE, AND PARKING LESSEE shall be responsible for construction, repair, replacement and maintenance of any water or sewer lines on the premises or between the existing City utility main and the Leased Premises, for use by LESSEE, in accordance with LESSOR's engineering criteria. In particular, LESSEE shall be responsible for the installation, maintenance and testing of backflow protection device(s); the winterization of all such water and sewer lines and appurtenances; and for the scheduling of seasonal turn on and shut off of water. LESSEE shall Approved at the January 19, 2022 PEDC Meeting be responsible for payment for all utilities used on the Leased Premises. LESSOR shall have no responsibility for developing parking areas for use by LESSEE, and LESSEE shall be solely responsible for maintenance and repair of any parking areas developed by LESSEE. ARTICLE SEVEN: INSURANCE LESSEE shall keep the improvements insured against liability and fire or other hazards and, except as otherwise provided for in this article, shall save LESSOR harmless and indemnified at all times against any loss, damage, penalties, costs and expenses, judgments and decrees, by reason of a failure so to do in any respect or by reason of any violation of any of the laws, rules or regulations above referred to, or by reason of any accident, loss, wrong, injury, or damage to person, life or property in or about said Premises, including but not limited to for any negligence of LESSEE in the making of any improvements to the Premises, or by reason of any use which may be made of the Premises or the buildings and improvements thereon, or by reason of any act or thing done or omitted to be done or by reason of anything happening in connection with or upon the Premises or in any building situated thereon or improvement connected therewith, or by reason of the failure of LESSEE in any respect fully to carry out and perform any of the covenants, agreements, provisions or undertakings in this lease on its part to be performed. Proof of insurance and the inclusion of LESSOR as an additional insured in all such policies of insurance shall be provided in writing to LESSOR. LESSEE shall maintain liability insurance coverage upon the Leased Premises, in the initial, minimum amount of $1,000,000 per occurrence and $2,000,000 in the aggregate and shall ensure that the City of Ithaca is named as an additional insured on such policy. The minimum amount of required coverage shall be subject to reasonable, periodic adjustment by the City, upon prior written notice to LESSEE of at least 6 months. LESSEE shall provide written documentation to City that required coverage is in place, at the time of execution of this lease agreement, at least annually thereafter, within a month after the annual insurance renewal date, or at other times upon request. LESSEE shall keep the Premises insured as provided for herein, the amount of insurance coverage shall be as reasonably approved by the LESSOR, and proof of insurance and the inclusion of LESSOR as an additional insured in all such policies of insurance shall be Approved at the January 19, 2022 PEDC Meeting provided in writing to LESSOR. It is mutually covenanted and agreed by and between the parties hereto that the proceeds of any and all policies of fire insurance covering any building or buildings at any time situated upon the Premises shall be used as a trust fund towards the repair, reconstruction, building or rebuilding of such building or buildings, unless the parties agree otherwise in writing. ARTICLE EIGHT: DEFAULT Notwithstanding any other provisions herein, LESSEE’s right to occupy the Premises may be terminated by LESSOR prior to the end of the demised term of this Lease Agreement under any one of the following conditions: a) If LESSEE shall, at any time during the term of this lease, fail in the performance or permit the violation of any of the covenants, conditions, terms or provisions of this Lease Agreement, including but not limited to the attached maintenance policy, or such superseded policy approved by the Mayor and Director of Planning and Development, which, on the part of LESSEE, are or ought to be observed, performed, or fulfilled and, except where a specific time is herein provided for the performance of any covenant or condition, when such default is not cured within sixty (60) days after notice and demand have been given by LESSOR (except that the City may impose a reasonably shorter period for failures or violations related to life safety matters); or b) If, during the demised term, LESSEE shall be adjudicated bankrupt or make a general assignment for the benefit of creditors, or shall take the benefit of any insolvency act, or if a temporary or permanent receiver or trustee in bankruptcy is appointed for LESSEE’s property and such appointment for a temporary receiver is not vacated and set aside within ninety (90) days from the date of such appointment, or in the event of any attempted transfer or other devolution of the interest (or any part thereof) of LESSEE, to any other person or corporation, by reason of the acts and things hereinabove last enumerated; or c) If LESSEE shall fail to use said Premises for the purposes of a public community garden, as hereinbefore described in ARTICLE FOUR, for one full year during the term of this Lease, unless such failure is the result of an act of nature (such as a major flooding event) or any act of the City of Ithaca, or any other governmental entity, or NYSEG, pursuant to the easements held by such entities; or Approved at the January 19, 2022 PEDC Meeting d) If, at any time during the term of this Lease, LESSEE or its successor or assignee shall cease to be or cease to operate under the fiscal sponsorship of a not-for-profit corporation. In any of the events enumerated above, LESSOR may at its option, and upon sixty (60) days’ notice (or additional notice) in writing, served as provided in ARTICLE TEN hereof, terminate this Lease, and this Lease and the term thereof shall automatically cease and terminate at the expiration of said sixty (60) day period; and it shall be lawful for LESSOR, at its option, to enter the Premises or any part thereof and to have, hold, repossess and enjoy the said Premises, and LESSOR shall have the right to recover the said Premises and to remove all persons therefrom by summary proceedings or by any other legal action or proceedings. ARTICLE NINE: TERMINATION LESSEE may terminate this lease at any time by giving a minimum of thirty (30) days written notice to LESSOR. Notwithstanding the provisions of Articles Two and Eight above, this lease shall not be terminated for any reason by LESSOR without action of the City of Ithaca Common Council, preceded by written notice to LESSEE of the intention to hold a final vote on such action. ARTICLE TEN: NOTICES Any notice which may be required under the terms of this Lease shall be given in writing, personally to: For LESSOR: Mayor, City of Ithaca 108 East Green Street Ithaca, New York 14850 and Attorney for the City 108 East Green Street Ithaca, New York l4850 and For LESSEE: Ithaca Community Gardens, Inc. P.O. Box 804 Ithaca, New York 14851 Approved at the January 19, 2022 PEDC Meeting and ithacagardensboard@gmail.com or any subsequent address supplied by LESSOR or LESSEE. Notice to LESSEE of non-renewal, intention to conduct a final vote on non-renewal, or any defaults which may result in lease termination, shall be delivered by certified mail, return receipt requested. ARTICLE ELEVEN: ASSIGNMENT It is hereby covenanted and agreed by and between the parties hereto that LESSEE may not sell, convey, or assign its interest in the Premises and in any structures or improvements thereon, to a successor or any other party, without the written consent of LESSOR. Such consent shall not be unreasonably withheld by LESSOR if said proposed successor or assignee is a local, not-for-profit entity with the capacity to operate and maintain the Community Gardens in a manner similar to that provided by LESSEE or is a fiscal sponsor of LESSEE for tax purposes. The approval of one assignment by LESSOR shall not constitute approval for any subsequent assignment. ARTICLE TWELVE: SURRENDER OF PREMISES; DISPOSITION OF IMPROVEMENTS Upon the termination of this Lease, as a result of default (per ARTICLE EIGHT) or upon its expiration (the expiration of the Initial Term or any renewal term, per ARTICLE TWO, if applicable), LESSEE covenants and agrees to surrender the Premises, peaceably and at once, and to deliver up the same to LESSOR, subject to the remaining provisions of this Article. LESSEE shall be entitled – but not required – to remove from the Premises any improvements LESSEE has made to said Premises, including but not necessarily limited to any structures (e.g., sheds, fencing, gazebo) and the topsoil from the gardens (defined as the top eight inches of soil), provided that a relocation site requires topsoil. Any such removal must occur prior to said termination date, must be complete (i.e., without leaving debris, hazards, or holes in the ground) and shall be at LESSEE’s sole cost. ARTICLE THIRTEEN: CONDEMNATION Approved at the January 19, 2022 PEDC Meeting If any person or corporation, municipal, public, private or otherwise, shall, at any time during the term of this lease, lawfully condemn and acquire title to the Premises or any portion thereof, or to any building or the appurtenances now or hereafter erected thereon, or to any easement therein, in or by condemnation proceedings pursuant to any law, general, special or otherwise, then, in that case, LESSOR shall be entitled to and shall receive the entire award or payment therefor; and LESSEE shall assign and does hereby assign and transfer to LESSOR such award or payment as may be made therefor. LESSOR, in any event, shall be entitled to receive any and all awards or payments made for any buildings and the appurtenances which shall be so taken or for any damages thereto, free, clear and discharged of every claim of every kind whatsoever by or on the part of LESSEE, except as hereinafter specifically provided, and such award or payment is hereby transferred and assigned to LESSOR by LESSEE; and LESSEE hereby further agrees that for the purpose of obtaining such award or payment, and for all other purposes, all the buildings and improvements now standing upon the Premises are the sole and absolute property of LESSOR and that in no event and under no circumstances shall LESSEE be entitled to receive or retain any award or payment or any part thereof except as hereinafter specifically provided. Notwithstanding anything hereinbefore contained to the contrary, if LESSEE shall have commenced or completed the erection of a new building or buildings or other improvements and such condemnation takes place after the commencement or completion of the said new building or buildings, then LESSOR agrees to pay LESSEE out of the condemnation award or payment when paid, a sum equal to the amount awarded or paid in condemnation as the value of such building or improvements. If, in the condemnation proceeding, the value of the land and of the buildings and other improvements are not separately determined, then the value of the building or other improvements shall be determined by arbitration. LESSOR agrees to give LESSEE notice of any condemnation proceedings immediately upon knowledge of such proceedings. ARTICLE FOURTEEN: NON-DISCRIMINATION It is mutually understood and agreed that LESSEE, in the employment of its agents, contractors and/or employees, shall not discriminate against any employee, applicant for employment, subcontractor, supplier of materials or services or program participant because of actual or perceived age; creed; color; disability; domestic violence victim status; ethnicity; familial status; gender; gender identity or expression; height; immigration or citizenship status; Approved at the January 19, 2022 PEDC Meeting marital status; military status; national origin; predisposing genetic characteristics; race; religion; sex; sexual orientation; socioeconomic status; or weight.and any construction contract entered into by LESSEE shall contain such a nondiscriminatory clause. LESSEE is committed to ensuring that the opportunity to secure and maintain a plot at its Community Gardens is available to those with a disability (as defined by the Americans with Disabilities Act) on terms otherwise comparable to those applicable to gardeners without a disability. ARTICLE FIFTEEN: TAXES If, during the term of this Lease, the tax assessor of Tompkins County determines that the Leased Premises are not tax exempt, this lease shall be deemed void, unless LESSEE agrees to pay – and in fact does timely pay – any taxes levied upon the Premises. In the event that this Lease is deemed void for that reason, the parties shall attempt in good faith to re- negotiate the Lease terms. ARTICLE SIXTEEN: MISCELLANEOUS PROVISIONS a) Waivers of Lien. LESSEE covenants and agrees that LESSEE will not make any contract or agreement, either verbal or written, for labor, services, materials or supplies in connection with any improvements at any time situated upon the Premises without securing in such contract or agreement a waiver or waivers of lien against LESSOR's interest in the Premises; and it is expressly understood and agreed, and notice is hereby given, that no persons, firms, or corporations furnishing labor, materials or services for the construction, reconstruction, alteration or addition to any building at any time during the term hereof situated upon the Premises shall have any lien upon LESSOR's interest in the Premises and that any and all liens upon LESSEE's estate and interest in the Premises and the buildings and improvements situated thereon shall be subject to the prior rights of LESSOR under the terms and provisions of this Lease Agreement, and no authority is given by this Lease to LESSEE, expressly or impliedly, to bind LESSOR for the payment of any money in connection with the construction, repairing, alterations, additions or reconstruction work on the Premises, nor is there any authority given LESSEE by this lease, directly or indirectly, to permit any mechanic’s lien, materialman's lien, or contractor’s lien to arise against LESSOR's interest in the Premises or the buildings or improvements thereon, and LESSEE expressly agrees that it Approved at the January 19, 2022 PEDC Meeting will keep and save the Premises, and LESSOR, harmless from all costs and damages arising from any such liens or lien of any character created through any act or anything done by LESSEE. b) Title. LESSOR represents and warrants that it is the owner in fee of the Premises, as described in Schedule “A,” attached hereto, free of all liens and encumbrances. c) Severability. In the event that any term, condition, clause or provision of this agreement shall be deemed null and void, the remaining terms, conditions, clauses and provisions of this lease agreement shall remain in full force and effect, unless the rights of either party are materially affected by the deletion of such term, condition, clause or provision, in which case either party may elect within 90 days after the date of the notification to declare said Lease null and void in its entirety. d) Hours of Operation. Notwithstanding any apparently contrary stipulation in the Ithaca City Code (except for time limitations on the use of power equipment), gardening - related activity at the Premises may occur at any time between dawn and 10:00 pm. ARTICLE SEVENTEEN: RIGHT TO INSPECT LESSOR shall have the right to inspect any part of the Premises without notice at any time. THIS AGREEMENT supersedes and replaces any other such lease or agreement previously executed by the parties hereto and shall be binding upon the parties and their successors or assignees in title. IN WITNESS WHEREOF, the parties hereto have placed their hands and seals as of the date(s) set forth below. Approved at the January 19, 2022 PEDC Meeting CITY OF ITHACA Date: _____________________________ By: ______________________________ Svante Myrick, Mayor ITHACA COMMUNITY GARDENS, Inc. Date: __________________________ By: ______________________________ Martha Hiller, President STATE OF NEW YORK ) COUNTY OF TOMPKINS ) ss: On this ______ day of _________, 2021, before me, the undersigned, a Notary Public in and for said State, personally appeared SVANTE L. MYRICK, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person of which the individual acted, executed the instrument. _______________________________ Notary Public STATE OF NEW YORK ) COUNTY OF TOMPKINS ) ss.: On this ______ day of ____________, 2021, before me, the undersigned, a Notary Public in and for said State, personally appeared MARTY HILLER, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person of which the individual acted, executed the instrument. _______________________________ Notary Public Approved at the January 19, 2022 PEDC Meeting SCHEDULE A -- MUST BE REVISED -- The Premises leased to Ithaca Community Gardens, Inc., by the City of Ithaca, pursuant to a Lease Agreement executed in 2021 between said parties, consist of the following: ALL THAT TRACT OR PARCEL OF LAND, situate in the City of Ithaca, County of Tompkins and State of New York, shown as “Parcel A” and “Parcel B” (both of which are also denoted as “Community Gardens”) on a survey map entitled “Survey Map - Carpenter Business Park, Third Street and New York State Route 13, City of Ithaca, Tompkins County, New York,” dated 6/1/2001 and as revised on 2/15/02, more particularly bounded and described as follows: PARCEL A: Commencing at a pin set in the southeasterly boundary of lands reputedly of the Norfolk Southern Railroad, where said boundary intersects with a northeasterly line of premises (demarcated as 'Parcel F' on the above-referenced survey map) conveyed by Building Links, Inc., to Templar, LLC, by deed dated February 20, 2002, which deed was recorded on February 22, 2002, in the Tompkins County Clerk’s Office in Liber CD2504 of deeds at page 965, said point of beginning being located 691.28 feet southwesterly from a pin set in the southerly line of Third Street Extension; running thence North 34 degrees 41 minutes 32 seconds East a distance of 419.10 feet to a point in said boundary of lands of the Norfolk Southern Railroad; running thence southerly on a curve to the left, an arc distance of 65.82 feet, with a chord running South 4 degrees 4 minutes 54 seconds West for a chord distance of 65.60 feet, along the westerly line of a roadway known as Carpenter Circle; running thence South 4 degrees 7 minutes 11 seconds East a distance of 85.80 feet along said line; running thence on a curve to the right, an arc distance of 97.88 feet, with a chord running South 15 degrees 54 minutes 37 seconds West for a chord distance of 95.90 feet, along said line; running thence South 35 degrees 56 minutes 24 seconds West a distance of 203.2 feet to a point marked by a pin set in said line; running thence North 56 degrees 14 minutes 08 seconds West a distance of 113.65 feet to the point or place of beginning. PARCEL B: Commencing at a point 0.2 feet easterly of a chain link fence dividing what is demarcated on the above-referenced survey map as “Parcel B” and 'Parcel H' from New York State Route 13, which point is located South 33 degrees 47 minutes 32 seconds West a distance of 247.00 feet, approximately along said chain link fence, from the intersection of New York State Route 13 with a southeasterly boundary of land reputedly of Benjamin; running thence South 33 degrees 47 minutes 32 seconds West a distance of 228.30 feet to a point marked by an iron pin; running thence North 56 degrees 11 minutes 5 seconds West a distance of 196.92 feet to a point marked by an iron pin set in the easterly line of a roadway known as Carpenter Circle; running thence North 35 degrees 56 minutes 24 seconds East along said line for a distance of 201.00 feet to a point; running thence on a curve to the left, an arc distance of 139.83 feet along said line, with a chord running North 15 degrees 54 minutes 37 Approved at the January 19, 2022 PEDC Meeting seconds East for a chord distance of 137.00 feet, to a point marked with an iron pin; running thence South 30 degrees 54 minutes 28 seconds East a distance of 264.72 feet to the point or place of beginning. Being a portion of the premises conveyed to the City of Ithaca by deed from the New York State Electric and Gas Corporation dated February 21, 1986 which deed was recorded in the Tompkins County Clerk’s Office on March 13, 1986 in Liber 615 of Deeds at page 797. TOGETHER WITH the right of access to and along the street commonly known as Carpenter Circle, for the purpose of providing access (from Third Street) by the public to the premises leased from the City of Ithaca by Project Growing Hope, Inc., which right was retained when said street was conveyed by the Ithaca Urban Renewal Agency to Building Links, Inc. SUBJECT TO rights retained by the New York State Electric and Gas Corporation in the aforesaid deed for permanent easement and rights of way upon, over, across and under the above described premises as more particularly set forth in the aforementioned deed from the New York State Electric & Gas Corporation to the City of Ithaca. Approved at the January 19, 2022 PEDC Meeting SCHEDULE B Maintenance Policy SCHEDULE C Site Plan Approved at the January 19, 2022 PEDC Meeting SCHEDULE D LEASE RENEWAL NOTICE Must be mailed on or before June 30, 2048 To City Clerk and City Attorney: Pursuant to Article 2 of the Community Gardens Lease between Ithaca Community Gardens, Inc. and the City of Ithaca, executed on , 2021, this notice serves to notify the City that the Initial Term of the Community Gardens Lease ends on December 31, 2050. Absent the City’s notice of non-renewal, as described in this Lease Renewal Notice and in Article 2 of the Lease, the Lease and all terms and conditions shall automatically renew for a 20-year renewal term ending December 31, 2070. If the City intends to take a final vote regarding non-renewal of the lease, it shall provide prior written notice to Ithaca Community Gardens, Inc. by certified mail. We would also greatly appreciate it if the City could provide earlier informal notice of any public deliberations leading up to such a vote. If the City decides not to renew the lease, the City shall notify Ithaca Community Gardens, Inc. in writing by certified mail no later than March 31, 2049. SCHEDULE E Land Swap Agreement Approved at the January 19, 2022 PEDC Meeting c) Ithaca Energy Code Supplement Update Chair Murtagh stated that we have seen this before, but a few changes have been suggested. Nick Goldsmith provided the plan for the Town. The City and the Town are in agreement with the dates of April 26, 2021 and May 10, 2021. We met with Cornell. He outlined the changes made since last month’s meeting. He opened it up to questions. JoAnn Cornish stated that it will be up to the property owner to reporting. Alderperson Brock asked whether there are penalties. Goldsmith stated that there will be penalties. Alderperson Brock asked for the source about the lighting table. Moved by Lewis; seconded by Smith. Carried unanimously. 5) Review and Approval of Minutes a) No Minutes Available 6) Adjournment Moved by Alderperson Lewis; seconded by Alderperson Fleming. Carried unanimously. The meeting was adjourned at 7:35 p.m.