Lease Lane to NYCRI rev3_26_13 WFBOATHOUSE SITE LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into on this _____ day of April, 2013, by and between Lane Construction Corporation, a Connecticut Corporation with a usual place of business
at 90 Fieldstone Court Cheshire, CT 06410 (hereinafter “Lane”), its successors and/or assigns and Northampton Youth and Community Rowing, Inc., a Massachusetts corporation organized
and existing under Chapter 180 of the Laws of the Commonwealth of Massachusetts, with a mailing address of P. O. Box 1553, Northampton, Massachusetts 01061 dba NORTHAMPTON COMMUNITY
ROWING (hereinafter “NCR”).
Whereas, The City of Northampton is the intended Grantee of Lane Construction Corporation, and this lease is entered into with the understanding that The City will be the new owner of
the Property described below; and
Whereas, The City is developing approximately half of the Lane Construction Site as an expansion of the Connecticut River Greenway, with 5.5± acres as a conservation area under the care
and custody of the Conservation Commission and 6.0± acres as a recreation area under the care and custody of the Recreation Commission; and
Whereas, The conservation area will be mostly in a pristine state, with a possible walking trail along the river and a future leg of the Connecticut River Greenway multi-use trail from
Damon Road to Elm Court, Hatfield; and
Whereas, The recreation parcel will include site work, associated drainage, parking, a roadway/path to the river and a handicap accessible path, a boat launch, a dock, an interpretive
sign along the New Haven and Northampton Canal, another future leg of the Connecticut River Greenway multi-use trail, and a site for a boathouse or boathouse complex; and
Whereas, The proposed work is shown on plans entitled “Connecticut River Greenway: Lane Business Park and Northampton Community Boathouse,.” prepared for the City by Berkshire Design
August 1, 2012, on file with the City and on its website, as those plans may be amended from time to time to address permit needs, final contract drawing needs, and the input of NCR
(hereinafter “Plans”); and
Whereas, The City is working as the project manager for the project, coordinating multiple grants, funding, and grant requests, land acquisition for the project, coordination with the
neighborhood, potential users, and stakeholders, obtaining necessary permits, approval, and consultations for the project, working in cooperation with Lane Construction, Inc, the Recreation
Commission and the Conservation Commission, completing the design for all horizontal facilities on the site, not including any buildings at this time, and overseeing the bidding, contracting,
and construction of such facilities as funding is available; and
Whereas, NCR is committed to supporting Northampton Community Rowing, the Youth Rowing program with participants from Northampton High School and other area schools including, but not
limited to Williston-Northampton Academy, Easthampton High School, Amherst High School and Longmeadow High School, a masters rowing program, a community sculling program, and making
canoes and kayaks available to the community and developing a boathouse to support such activities; and
Whereas, NCR provides limited need based scholarship support for youth rowing activities, based on fundraising activities directed specifically to that purpose; and
Now, Therefore, Lane enters into this Lease Agreement with NCR to implement these goals and to provide for the current use of the site and the proposed use of the site when the Boathouse
has been constructed.
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument and its Exhibits, the following sets forth the basic terms of this Lease, and, where appropriate, constitutes definitions of
certain terms used in this Lease.
1.2 BASIC DATA
Date: April ______, 2013
Landlord: Lane Construction Corporation, its successors and assigns
Present Mailing Address 90 Fieldstone Court, Cheshire, CT 06410 of Landord
Tenant: Northampton Youth and Community Rowing, Inc. dba Northampton Community Rowing (“NCR”)
Mailing Address PO Box 1553 of Tenant Northampton, MA 01061
Lease Term: 99 years
Term Commencement Date: May 1, 2013
Rent: $1.00 per year plus insurance payment set forth in 5.1
1.3 ENUMERATION OF EXHIBITS
Exhibit A: Plan showing the Premises.
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS
2.1 Description of Premises. Lane, in consideration of the rents reserved and the terms and conditions of this Lease, does hereby demise and leave exclusively unto NCR, and NCR does
hereby take and hire from LANE, the property described as follows:
Area entitled “125’X200’ Ground Lease Area” on a plan entitled “Plan of Land Prepared For The City of Northampton” signed by Paul Lussier, RLS, Berkshire Design, Dated April 2, 2013,
and recorded at the Hampshire Registry of Deeds at Plan Book 229, Page 40, being a portion of “Parcel B, Connecticut River Greenway” shown on said plans.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
A. Tenant shall have, as appurtenant to the Premises: rights to use in common with others the portion of Parcel B not leased to Tenant, which rights include, but are not limited to,
all rights necessary and appropriate to allow Tenant to fulfill its obligations under this Lease.
B. Tenant shall also have the right to use, in common with others entitled thereto, a right of way and easement all roadways, access roads and paths constructed and utilized to provide
access to the leased premises and/or Parcel B.
C. Tenant shall further have the right to extend temporary overhead electric cable and telephone utilities across Landlord’s property south of its permitted building envelope, using
a temporary easement to be granted to National Grid under its standard terms.
D. Landlord reserves the right to use the leased premise in any way, including a temporary building or enclosure, until such time as the Tenant provides a 90 day notice that they are
ready to begin construction on a boathouse.
ARTICLE III
TERM OF LEASE: CONDITION OF PREMISES
3.1 TERM OF LEASE
A. The term of this Lease shall be the period specified in Section 1.2 hereof as the “Lease Term” commencing upon the Term Commencement Date specified in Section 1.2.
B. At such time as Tenant, in the judgment of its Board of Directors, cannot continue to fulfill the terms and conditions of the Lease, whether for financial, fiscal or other reasons,
Tenant will give 90 days’ notice to Landlord and Tenant will wind up its affairs and assign the Lease to a Tenant designated by Landlord. Notwithstanding this section, however, Tenant
shall remain obligated to the maintenance responsibilities in sections 4.2 and 4.3, below, until such time as the Landlord agrees in writing that another arrangement has been made to
ensure that such maintenance will be performed and releases the Tenant from their obligations.
C. At such time as Landlord, in the judgment of its designated management entity, decides that Tenant is not fulfilling Tenant’s obligations under this Lease Agreement, Landlord will
give 45 day notice to Tenant specifically stating in writing the areas of nonperformance. Tenant will then have 30 days to respond to Landlord and either correct areas of nonperformance
or present a plan to come into conformance with the terms of the Lease. In the event that Tenant fails to respond or does not come into compliance, Landlord will give Tenant written
notice and 120 days to vacate the premises.
F. This lease shall be null and void if NCR does not contribute $117,000 to the City of Northampton, in the care and custody of its Office of Planning and Development, for the development
of the Connecticut River Greenway in the time period between January 20, 2013 and May 31, 2013.
3.2 CONDITION OF PREMISES
Tenant acknowledges that it has inspected the Premises and agrees to accept same in its “as is” condition, and further Tenant agrees that Landlord has no obligation to perform any work
whatsoever in order to prepare the Premises for Tenant’s occupancy hereunder. The Tenant and Landowner acknowledge that the City of Northampton is in the process of acquiring the fee
interest in the land and will be making over $605,000 of improvements, based on plans reviewed and approved by the Tenant.
ARTICLE IV
RENT
4.1 RENT PAYMENTS
The annual rent shall be due from Tenant on or before April 30th of each year beginning on April 30, 2013. The rent for 2013 is acknowledged by all parties as paid.
4.2 TENANT’S OBLIGATIONS BEFORE CERTIFICATE OF OCCUPANCY ISSUED FOR BOATHOUSE
A. Tenant shall be solely and exclusively obligated to perform “routine inspection and maintenance” to the docks and ramp on Parcel B once they are constructed which includes removing
docks from the water at the appropriate time of year and includes deploying the docks in the water at the appropriate time of year;
B. Tenant shall provide for design, building permit and construction of a Boathouse facility on the Ground Lease Area, minimally 2-bay unconditioned with related canoe and kayak area,
within 5 years of the date on which temporary electricity is brought within 150 feet of site along with an easement to allow the temporary electricity to be brought to site and used
by Tenant.
4.3 TENANT’S OBLIGATIONS AFTER CERTIFICATE OF OCCUPANCY ISSUED FOR BOATHOUSE
A. Tenant shall be responsible for routine maintenance of the Ground Lease Area and all of Parcel B, including but not limited to parking lot, roadway, walkway, docks, and ramp in good
condition.
For purposes of section 4.3 and 4.4, above, “routine inspection and maintenance” shall consists of:
Removing the docks and gangway from service and securing no earlier than September 15 unless prudent storm preparedness so directs
Replacing the gangway and docs into the water and securing when appropriate but in no case later than June 1 unless prudent storm preparedness so directs.
Inspection of the facility of ramps, gangways and docks on or about June 15, August 1, and September 1
Inspection to be visual review of all connection and mechanical equipment, test to be in working order.
Inspection of any mooring equipment to ascertain its condition
Mark any adjustments as needed
Report within 7 days to the recreation commission if there is a substantial repair needed, which NCR will undertake but which renders the facility out of service, or if a repair appear
necessary which is outside the scope of the tenant responsibilities.
Keep the walkways substantially clear of brush, and drainage works clear of debris and obstruction
NCR is responsible only for such snow plowing and snow removal as it contracts for, including but not limited to removal of snow to provide access to site. The Landlord has no obligations
to provide snow removal to the site.
B. Tenant shall provide youth, school age and adult programs in rowing (according to community need or demand and market conditions), which shall include at a minimum a program for
the Northampton High School and other high school rowers. Programs to run on a user-fee basis.
C. With regard to the Boathouse, docks and ramp, the Tenant shall be responsible for all repairs, including routine maintenance, structural repairs, repairs to all systems, including
but not limited to electric, plumbing, HVAC, and such other maintenance and repairs necessary to keep such structures in good condition in compliance with all building and safety codes
and available for the purposes set forth in this Lease.
D. Neither Tenant nor Landlord is responsible for the repair of anything on Parcel B above and beyond routine maintenance, and specifically not for any storm or water damage on the
site. Landlord agrees to use its best efforts and resources in conjunction with Tenant to carry out repairs and improvements or replacement beyond the scope of the tenant obligations.
E. NCR’s rights to Parcel B outside of the Ground Lease Area shall be limited to the rights and obligations set forth herein. The Tenant has no management rights to Parcel B and all
decisions on managing the property is at the sole discretion of the Landlord.
F. NCR shall offer a canoe and kayak sharing program that allows public sharing of boats (i.e., rental of private storage lockers for private boats and membership that allows a member
to check out a boat for a given time and/or rental that allows short term use of boats). At least 15% of any boathouse or building constructed on the site shall be dedicated to canoes
and kayaks. For each eight-person rowing shell there shall be 1.5 canoes or kayaks available and dedicated to member or rental use. For each smaller rowing shell and single sculls
there shall be 1.0 canoe or and kayak available dedicated to member or rental use. NCR may elect to acquire the kayaks and canoes over a ten year period, with a minimum of 10% of the
intended number being acquired each year.
G. NCR shall seek out appropriate partnerships to provide human-powered water craft use, and may sublease all or portions of the boathouse to such partner organizations, including those
to assist in providing instruction and access in other paddle sports, cooperate with adaptive and other community interests in rowing, explore site partners for sculling, urban outreach
and possible collegiate usage, provided such uses do not violate or affect its tax exempt status.
H. NCR and all partner organizations must maintain tax exempt status, be in fiscal good standing, and have no overdue debts, taxes, or obligations to the City of Northampton, and, in
accordance with MGL Chapter 62, Section 49A, complied with the laws of the Commonwealth of Massachusetts relating to taxes, reporting of employees and contractors, and withholding and
remitting child support.
I. NCR shall be responsible for all on-site utility costs, including electricity, gas, water, sewer, and trash removal (providing those utilities are available and providing that NCR
elects to bring them on site). NCR is not obligated to bring gas, water or sewer facilities on site unless required by any applicable building, health or safety code.
J. NCR shall ensure that any boathouse or structure utilizes the lease or purchase of photovoltaic equipment to ensure that the site is a zero-net electricity site. K. NCR shall develop
a master plan for the programming and use of the boathouse (as a single master plan or in phases as the project is developed) and for NCR use and management of Parcel B, with a community
process to involve the community in the development of said plan. Said plan shall be submitted to the Northampton Recreation. Commission for their approval. NCR shall not be required
to submit its own internal programs for youth and Master rowers for approval by the Recreation Commission or any other entity.
L. Such approval for the programmatic and use elements of the boathouse shall not be unreasonably withheld if the plan meets the spirit and the letter of this lease.
M. Such approval for the use and management of Parcel B shall be at the Recreation Commission’s sole authority, and may be amended or conditioned from time-to-time by the Recreation
Commission.
N. NCR shall not be required to provide any programs which require NCR to subsidize said programs – each program must have its own funding source, either through fees or grants or a
combination of the same. Notwithstanding this paragraph, however, the Recreation Commission reserves the right not to allow a reduction in the canoe and kayak program size regardless
of whether it is paying its full costs and NCR retains the obligation to provide a high school rowing program in any boathouse it develops.
LANDLORD’S OBLIGATIONS AFTER THE CERTIFICATE OF OCCUPANCY ISSUED FOR BOATHOUSE
The landlord acknowledges that NCR is not responsible for the rebuilding of collapsed river banks, or infrastrcutre torn away by hurricanes, tornadoes, rising water, flooding and/or
any natural disaster or event.
ARTICLE V
INSURANCE
5.1 INSURANCE
A. NCR shall not be required to carry any insurance on the leased premises until temporary electricity is brought within 150 feet of site along with an easement to allow the temporary
electricity to be brought to site and used by Tenant AND a Temporary or permanent Occupancy Permit is issued for the Boathouse to be built on the premises.
B. The Tenant shall insure the premises against fire and casualty loss by policies with extended coverage, naming the Landlord as an additional insured and loss payee. The Landlord
shall not be liable for injury to the premises by fire or other casualty so covered by this type of insurance, unless caused by the negligence of the Landlord, it being understood that
in case of such injury the Tenant shall look solely to the insurer for reimbursement and not to the Landlord. The Tenant shall insure the premises against any and all liabilities arising
from any personal injury, death or property damage or destruction and shall name the Landlord as an additional insured. Such liability insurance shall be written by an insurer authorized
to do business in the Commonwealth of Massachusetts, and shall have policy limits of no less that $1 million dollars per occurrence and $3 million in the aggregate. All insurance required
by this paragraph shall be subject to the approval of the Landlord and certificates thereof shall be provided to the Landlord certificates thereof shall be made available to the landlord.
The Tenant shall indemnify the Landlord against any and all liability arising in any way from the use of the premises, including without limitation, claims for personal injury, death
and/or property damage to the extent of such insurance, which indemnity shall include reasonable attorneys' fees, professional fees and expenses incurred by Landlord in the enforcement
of this provision.
C. The City of Northampton has indicated a willingness to add NCR as another insured for any claims arising from this Lease and any NCR operations at the Connecticut River Greenway
site on to whatever liability insurance it carries from when the City acquires the Connecticut River Greenway from Lane Construction until when NCR obtains a Temporary or Permanent Occupancy
Certificate for the future boathouse, provided that NCR funds all of the incremental cost of such insurance (approximately $250 in 2013).
ARTICLE VI
ASSIGNMENT AND SUBLETTING
ASSIGNMENT AND SUBLETTING
The Tenant may not assign or sublet the demised premises, or any part thereof, without the consent of the Landlord, which consent will not be unreasonably withheld, except as noted below.
A minimum of 5,000 square feet of the boathouse shall be operated by NCR for the high school and community rowing programs spelled out in the lease (hereinafter "NCR area"). The Tenant
may assign or sublet the NCR Area this area only with approval of the Northampton Recreation Commission, and such approval shall only be granted if the Recreation Commission finds, in
its sole discretion, that the new organization is financially stable, responsible, capable, and connected to the community and high school rowing needs, and represents the greater community.
Notwithstanding the foregoing, the NCR Area may be assigned or sublet to a successor or affiliate organization to NCR.
The Tenant may assign or sublet additional portions of the boathouse not within the NCR area to any not-for-profit or government agency provided that the subleasee does not owe any taxes
or fees or unmet financial obligations to the City of Northampton and no criminal convictions, upon notice to the Northampton Recreation Commission and documentation (e.g., Municipal
Lien Certificate, affidavit as to taxes) that these conditions are met. Tenant may sublet to any entity upon written approval of the Northampton Recreation Commission, said consent
not to be unreasonably withheld. If the Recreation Commission fails to respond within sixty (60) days of written notice, this shall be deemed to be "consent" by the Recreation Commission.
Notwithstanding the consent of or notice to the Landlord, NCR shall be responsible for all obligations of the tenant under this Lease agreement.
ARTICLE VII
LIABILITY AND INSURANCE
7.1 THE TENANT’S RISK
The Tenant agrees to use and occupy the Premises and to use such other portions of the Building and the Lot as Tenant is herein given the right to use at Tenant’s sole risk; and Landlord
shall have no responsibility or liability for any loss or damage, however caused, to furnishings, fixtures, equipment, or other personal property of Tenant or of any persons claiming
by, through, or under Tenant.
7.2 CONSTRUCTION PERIOD INSURANCE
At any time when demolition or construction work is being performed on or about the Premises or Building by or on behalf of Tenant, the Tenant or Tenant’s contractors shall keep in
full force and effect the following insurance coverage in each instance with policies reasonably acceptable to Landlord, including, without limitation, the amount of any deductible thereunder:
(1) builder’s risk completed value (nonreporting form) in such form and affording such protections as required by Landlord, naming Landlord and its mortgagees as additional insureds;
and
(2) workers’ compensation or similar insurance in form and amounts required by law.
Tenant shall cause a certificate or certificates of such insurance to be delivered to Landlord prior to the commencement of any work in or about the Building or the Premises, in default
of which Landlord shall have the right, but not the obligation, to obtain any or all such insurance at the expense of Tenant, in addition to any other right or remedy of Landlord. The
provisions of this §11.3 shall survive the expiration or earlier termination of this Lease.
7.3 MISCELLANEOUS
In no event shall either Landlord or Tenant have any obligation to make any repairs or perform any restoration work on Parcel B if prevented from doing so by reason of any cause beyond
its reasonable control, including, without limitation, the requirements of any applicable laws, codes, ordinances, rules, or regulations.
ARTICLE VIII
HOLD HARMLESS
HOLD HARMLESS
Tenant and Landlord shall each save harmless the other party, the directors, officers, agents, and employees of the same, against and from all claims, expenses, or liabilities of whatever
nature (a) arising directly or indirectly from any default or breach by the other party, its contractors, licensees, agents, servants, or employees under any of the terms or covenants
of this Lease or the failure of each party or such persons to comply with any rule, order, regulation, or lawful direction now or hereafter in force of any public authority, in each
case to the extent the same are related, directly or indirectly, to the Premises or the Building, or the other party’s use thereof.
This hold harmless agreement shall include, without limitation, all expenses, attorney’s fees and liabilities incurred in connection with any such claim or proceeding brought thereon
and the defense thereof.
The hold harmless agreement does not provide indemnification to NCR from third party lawsuits.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 CAPTIONS
The captions throughout this Lease are for convenience or reference only and shall in no way be held or deemed to define, limit, explain, describe, modify, or add to the interpretation,
construction, or meaning of any provision of this Lease.
9.2 BIND AND INURE
Except as herein otherwise expressly provided, the obligations of this Lease shall run with the land, and this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
9.3 PARTIAL INVALIDITY
If any term or provision of this Lease or any portion thereof or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, then the remainder
of this Lease and of such term or provision and the application of this Lease and of such term and provision to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall be valid and enforceable to the fullest extent permitted by law.
9.4 ENTIRE AGREEMENT
All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and this Lease expressly supersedes any proposals or other
written documents relating hereto. This Lease may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord
shall alter, change, or modify any of the provisions hereof.
9.5 COUNTERPARTS
This Lease is executed in any number of counterparts, each copy of which is identical, and any one of which shall be deemed to be complete in itself and may be introduced in evidence
or used for any purpose without the production of the other copies.
9.6 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in accordance with the laws of The Commonwealth of Massachusetts, and Tenant agrees to submit to the personal jurisdiction of
any court (federal or state) in said Commonwealth for any dispute, claim or proceeding arising out of or relating to this Lease. In construing this Lease, feminine or neuter pronouns
shall be substituted for those masculine in form and vice versa, and plural terms shall be substituted for singular and singular for plural in any place in which the context so admits
or requires. If there be more than one party tenant, the covenants of Tenant shall be the joint and several obligations of each such party and, if Tenant is a partnership, the covenants
of Tenant shall be the joint and several obligations of each of the partners and the obligations of the firm.
IN WITNESS WHEREOF, the parties hereto have executed this instrument under seal as of the date set forth in Section 1.2, above.
LANDLORD:
BY: Its:
BY: Its:
TENANT:
BY: Its:
EXHIBIT A
PLAN SHOWING THE PREMISES
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