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THIS AGREEMENT is entered into by and between the City of
Burlington, a Vermont municipal corporation (“City”), and the
Intervale Center, a Vermont Non Profit (“IC”).
WHEREAS, the 700 acre Intervale represents one of Burlington’s
greatest assets; and
WHEREAS, the City fully supports the mission of the Intervale
Center “ to develop farm-and land-based enterprises that generate
economic and social opportunity while protecting natural resources”;
and
WHEREAS, the City, acting by and through its Electric Light
Department (the “BED”), is the owner of approximately 199 acres
located in the so-called Intervale area of the City of Burlington
(the “Property”); and
WHEREAS, the City is interested in selling, and the Intervale
Center, successor to the Intervale Foundation, is interested in
purchasing an undivided 99% interest in the Property for Two Hundred
Thousand Dollars ($200,000.00), with the remaining undivided 1% to
be retained by the City for the benefit of its Department of Parks
and Recreation; and
WHEREAS, the City’s goals in retaining a small interest are to
assure that IC engages in uses of or improvements to the Property
which are reasonably appropriate to support IC’s mission to develop
farm- and land-based enterprises that generate economic and social
opportunity while protecting natural resources; and
WHEREAS, in the event IC dissolves (voluntarily or involuntarily)
or IC elects to transfer the Property and the City has not availed
itself of its right of first opportunity to purchase the Property,
the City will play an active role in identifying a successor
non-profit or governmental owner organized for and committed to
continued use of the land for purposes consistent with IC’s mission;
and
WHEREAS, while a perpetual farmland conservation easement
(“Farmland Easement”) will encumber the Property, a City ownership
interest will serve as a prophylactic in the event the easement
holders cease to exist or the easement is terminated.
NOW, THEREFORE, IN CONSIDERATION of the covenants, considerations
and mutual benefits, set forth herein and other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
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Project Description: The property
which is the subject of this Agreement consists of 199 acres
comprised of two parcels: 179 acres, more or less, of land
and buildings located adjacent to Intervale Road (known as
the Intervale Parcel) and a 20-acre non-contiguous parcel
located easterly of North Avenue and bounded on the east by
Vermont Route 127 (known as the Beltline Parcel) in
Burlington, Vermont (both parcels being hereinafter referred
to as the "Property"). The Property consists of a portion of
all and the same lands and premises conveyed to Seller by
Warranty Deed of Lorenzo W. Howe and Evelyn T. Howe dated
June 29, 1977 and recorded in Book 246, Page 12 of the
Burlington Land Records. The approximate boundaries of the
Property are shown on the map attached to this Agreement as
Exhibit A and incorporated herein. IC and the City shall
enter into a Purchase and Sale Agreement for IC to acquire
the Property from the City substantially in the form of the
Purchase and Sale Agreement attached hereto as Exhibit B.
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Commitments by Both the City and IC: |
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A. |
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At the time of the conveyance of the
Property to IC, and as a condition of receiving grant funds
from Vermont Housing and Conservation Board (“VHCB”), both
IC and the City will execute a perpetual farmland
conservation easement (“Farmland Easement”), in a form that
is acceptable to the City, IC, the Vermont Land Trust (“VLT”)
and VHCB. |
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B. |
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1) |
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IC and its successors and assigns will, not less than
once each ten years, develop a Management Plan for the
Property identifying the uses of and proposed improvements
to the Property. An initial Plan will be developed within
one year of the conveyance of the Property to IC and be
subject to the approval process described below. The plan
will fulfill the requirements set forth in the VHCB/VLT
Farmland Easement, and will be submitted to the City for its
approval before being submitted to VLT/VHCB as required by
the Farmland Easement. The City will review each plan as
described below, acting by and through the City Council, and
will not unreasonably withhold its approval, provided the
plan proposes uses of or improvements to the Property that
are appropriate to support IC’s mission to develop farm-and
land-based enterprises that generate economic and social
opportunity while protecting natural resources. |
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The Management Plan will include but not necessarily be
limited to: a map of the property; property description
including identification of conservation areas, proposed
land uses; plans for public access and interactions with the
public; plans for dealing with problems (for example, trash,
prohibited uses, motorized vehicles, off trail uses);
existing and proposed improvements of structures,
infrastructure, and bike path trails (kiosks, platforms,
boardwalks, recreation structures, etc.); gates and boundary
marking and/or posting related to parking areas and public
access – both existing and proposed; plans for managing
natural areas, including vegetation, water ways, ponds and
natural communities; contact people with addresses, phone
and e-mail identification; management plan update and
amendment process, process for resolving disputes;
collaboration with conservation easement holders; and
signature line for landowner(s) and approval line for VHCB,
VLT and City of Burlington. |
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The process for City approval will be as follows: IC
will work with appropriate City staff in the early stages of
the development of the Management Plan. The Plan will be
submitted to the City’s Conservation Board prior to the
submission to the City Council for their review and comment.
The Plan will be made available to the public 15 days prior
to presentation to the City Council. IC will present the
Plan to the City Council and questions and comments from the
Council, City staff, the Conservation Board and the public
will be provided to the IC immediately thereafter. IC will
provide responses to the questions and comments to the City
Council within 30 days and the City Council shall then
expeditiously determine whether to approve the Plan. |
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Until a Management Plan is approved as described above,
the uses of the Property shall be consistent with the
Current Use Plan, attached hereto and incorporated herein as
Exhibit C. |
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C. |
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IC agrees that the uses of and
proposed improvements to the Property shall comply with the
City-approved management plan(s) approved under the process
described above. |
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Both the City and IC
acknowledge that any rights they may have as co-tenants to
voluntary or court-ordered partition will be subordinate to
the terms of the Farmland Easement. |
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It is the City’s intent to
examine in good faith, alternative locations, both on the
Property and other sites in Burlington, for the temporary
storage of clean fill. If an off-site location is not
identified, the City shall have the right to continue to
utilize the current on-site location for the temporary
storage of clean fill until such time that the City and IC,
working collaboratively and in good faith, identify a new
clean fill storage site that is practical from the City’s
perspective, and that is in compliance with all state and
local permits and regulations then applicable to the
Property. |
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Prior to closing on the sale of
the Property to IC, the parties will agree upon a mutually
acceptable, enforceable legal mechanism through which, in
the event of a voluntary or involuntary dissolution of IC or
in the event IC decides to sell or transfer the Property,
the City will have the first opportunity to take title to
the Property, provided the City undertakes in writing to
comply with the terms of the perpetual Farmland Easement and
to operate farm-and land-based enterprises that generate
economic and social opportunity while protecting natural
resources. The City’s purchase price shall be determined
based upon the value of all structures and improvements
constructed after the conveyance of the Property to IC,
excluding all land. The value of the structures and
improvements shall be determined using the replacement cost
approach to valuation (i.e., the cost to replace the
structures and improvements with those of comparable size
and utility, less depreciation and functional obsolescence)
by a mutually approved disinterested appraiser selected by
IC and the City, with the expense of such appraisal divided
equally between IC and the City. |
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G. |
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In the event the Property is
offered for sale or similar voluntary transfer by the IC,
the City has not availed itself of the first opportunity to
take title, and the prospective purchaser undertakes in
writing to comply with the terms of the perpetual Farmland
Easement and to operate farm-and land-based enterprises that
generate economic and social opportunity while protecting
natural resources, the City must approve said transfer which
shall not be unreasonably denied and shall show cause for
disapproval. |
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H. |
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The Property shall not be
subdivided, leased or conveyed in separate parcels, nor
shall any mechanism be utilized in a manner tantamount to a
sale of all or a portion of the Property without prior
approval by the City, except that portions of the Property
may be subleased for farm- and land-based enterprises for up
to twenty five years without City approval if such use is
consistent with the Management Plan then in effect. |
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The City and IC agree that the
City Council may select one member of the IC Board and IC
will so amend its bylaws prior to closing on the sale of the
Property. |
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Commitments by IC: |
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A. |
Prior to closing on the sale of
the Property to IC, the parties will agree upon a mutually
acceptable Easement authorizing the City to maintain the
Tommy Thompson Community Garden in its current location in
perpetuity. The City shall retain ownership of all
improvements on the Tommy Thompson Community Garden site,
including gates, fences, buildings and water system. The
City may add new improvements to the Community Garden site,
subject to the approval of the IC, which shall not be
unreasonably withheld or denied. The community garden area
will be expanded if its use exceeds the capacity of the
current area, subject to the approval of the IC, which will
not be unreasonably withheld or denied. |
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B. |
IC will provide BED access to
well #1 as depicted on Exhibit A used for back-up cooling
for the McNeil electric generating plant to which BED
currently has access. Prior to closing on the sale, BED and
IC will agree on an isolation zone surrounding the well, and
an access route to the well, all to be depicted on a map
executed by BED and IC. Any agricultural use of the
isolation zone and access route shall be at the risk of IC
and its assignees and IC will not be compensated for crop
damage resulting from BED’s use of the access route and
isolation zone. |
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C. |
Property shall be conveyed
subject to restriction on IC’s, and its successors’ and
assigns’, right to directly or indirectly protest or contest
the existence, operation, repair, maintenance, replacement
or expansion of the Joseph C. McNeil Generating Station and
associated facilities and appurtenances so long as same are
being operated in accordance with the provisions of
applicable permits. IC, and its successors and assigns,
shall also be prohibited from directly or indirectly
protesting or contesting the existence, amendment, or
renewal of the applicable permits necessary or required in
connection with the existence, operation, repair,
maintenance, replacement or expansion of the Joseph C.
McNeil Generating Station and associated facilities and
appurtenances. The foregoing restrictions and prohibitions
shall only apply to the interests of IC and its successors
and assigns accruing from its ownership of the subject
Property, and said restrictions and prohibitions shall not
apply to IC or its successors and assigns with respect to
interests they may have as owners or lessees on other lands
located in the Intervale. In any event, if IC plans to
directly or indirectly protest or contest the existence,
operation, repair, maintenance, replacement or expansion of
the Joseph C. McNeil Generating Station and associated
facilities and appurtenances, IC agrees to notify and
endeavor to resolve the dispute with BED prior to filing a
protest. |
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D. |
IC will provide BED the right
to lease back 4+/- acres adjacent to the existing waste wood
lot to expand the wood depot for wood storage. Such wood
storage area: (1) shall not unreasonably interfere with or
endanger IC’s use and enjoyment of the remaining Property;
(2) will be located in a manner that preserves a wooded
buffer of at least 50’ between the wood storage area and
open, productive farmland (but said buffer shall not be
included in the computation of the 4 acre area); and (3)
will be depicted on a map approved by both BED and IC before
closing of the sale. |
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IC will provide BED a fifty
(50’) foot wide utility corridor easement over the Property
in a location to be mutually agreed-to by the parties prior
to Closing. |
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F. |
The City and IC will pro rate
taxes at closing based on the Payment In Lieu of Taxes
(PILOT) liability of BED for the fiscal year 2007.
Thereafter: |
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IC shall not in the future
attempt to seek tax-exempt status for the Property; |
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IC may seek enrollment of the
Property in the Vermont current use value program (or other
state tax abatement or stabilization program) subject to the
City’s consent (not to be unreasonably withheld or denied);
provided, however, that no such consent shall be required in
the event the IC can show that during the term of the
enrollment of the Property in such current use value (or
similar tax abatement program), the State of Vermont will
pay to the City the difference in any loss of municipal
property tax revenue based on the use value of the Property
being enrolled as compared to municipal property tax revenue
based on fair market value of the Property. |
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IC shall be entitled, in its
discretion, to contest the grand list assessed valuation of
the Property, with a determination by the City Board of
Civil Authority being final, but not the taxability of the
Property. |
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G. |
Prior to closing on sale of the
Property to IC, the parties will agree upon a mutually
agreeable enforceable legal mechanism providing that the
portion of Intervale Road on the Property will remain a
public right-of-way, subject to implementing reasonable
protections for safety and security, including allowing IC
to use gates to restrict vehicular access at night. In
addition, IC agrees to continue to allow public access to
the foot and bike path trails on the Property, but may
implement reasonable safety and environmental protection
measures. |
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H. |
Prior to any new development on
the Property, IC will perform archeological assessments and
respect historic sites pursuant to local, state and federal
law. |
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Commitments by the City:
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A. |
IC will have the exclusive
right to use, occupy, improve, lease and otherwise manage
the Property in a fashion consistent with this Agreement
(including the Management Plan described above in Paragraph
2.B), the Farmland Easement and its mission. |
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Force Majeure: None of
the parties shall be deemed in violation of this Agreement
if it is prevented from performing any obligations hereunder
by reasons of strikes, boycotts, labor disputes, acts of
God, acts of the public enemy, acts of superior governmental
authority, severe weather conditions, riots, rebellion,
sabotage, or any other circumstances for which it is not
responsible or which is not under its control, and the party
experiencing force majeure gives written notice to the other
party identifying the nature of such force majeure, and when
it began. The party experiencing force majeure shall take
immediate action to attempt to remove such causes of the
force majeure as may occur from time to time, and its
operations under this Agreement shall be resumed immediately
after such cause has been removed, provided that no party
shall be required to settle any labor dispute except upon
terms that party deems acceptable. The suspension of any
obligations under this section shall not affect any rights
accrued under this Agreement prior to the occurrence of the
force majeure. The party giving notice of the force majeure
shall also give notice of its cessation. No party shall be
required to perform an obligation under this section if the
cost of removing the cause of a force majeure exceeds 105%
of the cost of performing the obligation itself. |
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Breach and Dispute:
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A. |
Should a dispute arise between
the parties as to the meaning or intent of any provision of
this Agreement, or as to an obligation of either party
hereunder, the parties will first attempt to resolve such
dispute by mutual negotiations and, if the dispute persists,
by the utilization of an experienced independent mediator,
with costs to be shared by the parties. Should the dispute
continue notwithstanding the efforts of the mediation
process, the parties agree to submit the dispute to final
and binding arbitration. |
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In the event of a material
breach of this Agreement, which is discovered by the
non-breaching party during the period in which this
Agreement is being actively performed, the parties shall
first endeavor to remedy the breach by direct discussions.
If such discussions fail to cure the breach within a
reasonable period of time, not to exceed thirty (30) days,
or if the circumstances require immediate action, the
non-breaching party may terminate this Agreement and seek
remedies for any injuries or damages suffered as a result of
the breach through arbitration. Claims for damages or other
remedy for any breach of this Agreement that are discovered
subsequent to the completion of this Agreement may be
pursued directly through arbitration. Claims which do not
involve breach of this Agreement shall not be subject to
arbitration and either party may pursue its judicial
remedies for such claims. A waiver by any party of any
default in the performance of any of the covenants, terms or
conditions of this Agreement shall not be deemed or
considered to be a waiver of any other matter, and the
various rights, powers, privileges, options and remedies of
the parties herein contained shall be cumulative, and no one
of them shall be deemed to be exclusive of any other, or
exclusive of any rights, powers, privileges, options or
remedies provided by law. |
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C. |
Arbitration: Arbitration shall
be initiated by written notice to the other side of intent
to seek arbitration. Arbitration under this Agreement shall
be governed by the Vermont Arbitration Act, except that any
arbitration shall be completed and a decision rendered
within 45 days of notice invoking arbitration. The parties
shall try to agree upon an arbitrator within five (5)
business days of the notice invoking arbitration. If the
parties cannot agree upon an arbitrator, then within three
(3) additional business days, each party shall select an
arbitrator and the selected arbitrator shall select a third
arbitrator. The parties shall equally share the cost of
arbitration. |
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Assignment: This
Agreement shall not be assigned by any party without the
advance written approval of the other parties. |
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Binding Effect: This
Agreement shall be binding on and benefit the parties and
the approved successors and assigns. The representations and
commitments herein shall survive any closing on the
Property. |
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Governing Law: This
Agreement shall be governed and construed in accordance with
the laws of the State of Vermont. In the event any term,
covenant or condition herein contained is held to be invalid
by any court of competent jurisdiction, such invalidity
shall not affect any other term, covenant or condition
herein contained, provided that such invalidity does not
materially prejudice any party in their respective rights
and obligations contained in the valid terms, covenants or
conditions hereof. The language in all parts of this
Agreement shall in all cases be construed simply according
to its fair meaning and not strictly construed against any
party, as it is agreed that all parties participated in the
drafting hereof. |
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Amendment: This
Agreement may not be amended except by mutually agreed upon
written amendment, signed and dated by each party. |
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Regulatory Review: This
Agreement shall not be read in any manner as altering,
affecting or guaranteeing a particular outcome with respect
to required regulatory review before the City’s regulatory
agencies such as the Development Review Board. |
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Entire Agreement: This
Agreement, together with the Purchase and Sale Agreement for
the Property, constitute the entire agreement between the
parties with respect to the subject matter hereof and
supercedes any prior agreements or representations, oral or
written, on the same subject. |
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Notice: Any notice or
other communication from any party to the other pursuant to
this Agreement shall be deemed sufficiently given or
communicated if sent by first class mail, postage pre-paid
and addressed to:
For City: Bob Kiss, Mayor, 149 Church Street, Ste. 32,
Burlington, VT 05401
For IC: Kit Perkins, Intervale Center, 180 Intervale Road,
Burlington, VT 05401 |
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Headings: The headings
in this Agreement are for the purposes of reference only and
shall not limit or otherwise affect the meaning hereof. |
ACKNOWLEDGEMENT OF ARBITRATION
I understand that this Agreement contains an agreement to
arbitrate. After signing this document, I understand that I will not
be able to bring a lawsuit containing any dispute that may arise
which is covered by the arbitration agreement, unless it involves a
question of constitutional or civil rights. Instead, I agree to
submit any such dispute to an impartial arbitrator. IN WITNESS
WHEREOF, this Agreement is executed by the duly authorized officers
or representatives of the parties hereto.
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Page last updated
April 07, 2008
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