FY2024-04 Land Use Permit between the KIB, City of Kodiak, and Kodiak Soil and Water Conservation DistrictContract No. FY2024-04
NONEXCLUSIVE LAND USE PERMIT
Purpose
The Kodiak Soil and Water Conservation District proposes to manage a community garden
on land owned in common by the City of Kodiak, Alaska and the Kodiak Island Borough at Tract K-
2, U.S. Survey 1396 (Plat 90-18) for the purpose of providing gardening opportunities to
individuals who may not own or otherwise have access to suitable land for gardening. The intent
of this project is to promote the health and wellbeing of individuals in Kodiak, encourage
consumption of locally grown foods and contribute to the sustainability and food security of
Kodiak Island.
This land use permit(" Permit") is between the City of Kodiak and the Kodiak Island Borough
(collectively referred to as "Owners") and the Kodiak Soil and Water Conservation District
("KSWCD"), asTenant.
Owners and KSWCD agree as follows:
1. PROPERTY AND TERM
1.1 Use. KSWCD is hereby permitted to use Tract K-2, U.S. Survey 1.396 ("Property") in the
manner described in this Permit and for the sole purposeof operating a community garden
with plots to be assigned by KSWCD to community members fortheir personal use. Plat
90-18 and a site plan detailing the proposed gardening site is attached as Exhibit A to this
Permit and is incorporated herein. Any proposed future expansion must be requested in
writing by Tenant and approved in writing by Owners.
1.2 Term. The term of this Permit is three (3) years effective April 1, 2023 and ending on
March 31, 2026. This Permit will terminate upon expiration of this term or the final
renewal term, if any; or ifeither party terminates itasdescribed in Section 4 of this Permit.
Tenant shall have the option to extend the initial term of the permit for up to two (2)
additional two yearperiods by providing written notification the Owners at least sixty (60)
days prior to the effective date of termination of the Permit or any extension thereof.
1.3 Rent. The permitted use of this tract shall be at no cost to Tenant for the duration of the
land use permit providing all terms are met and the property is used only for community
garden plots. Owners have the option to charge rent if the permit is extended beyond the
initial term.
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Contract No. FY2024-04
2.. OPERATION AND MAINTENANCE OF PROPERTY
2.1 Property as -is. KSWCD acknowledges the Owners are not making any representations,
warranties, promises, orguarantees of any kind to KSWCD including without limitation, any
representations about the quality, condition, or sustainability of the Property for use as a
community garden. In deciding to enter into this Permit, KSWCD has made its own
independent evaluation of the suitability of the Property for a community garden.
2.2 No Owner Responsibilities. KSWCD has sole responsibility for the planning, setup,
management, and carrying out of operations on the Property, including, without
limitation, obtaining any permits required for operating a community garden. Owners
have no obligation to make any alterations, improvements, or repairs of any kind on the
Property or to provide any services on the Property.
2.3 Comply with Laws. KSWCD will use and operate the Property in compliance with all
applicable federal, state, and local laws, including but not limited to all zoning and
environmental laws.
2.4 Garden Rules. KSWCD will operate the garden in accordance with its management plan,
including a set of garden rules, which has been submitted to the Owners. KSWCD will
require all persons using the Property to enter into the approved gardener agreement
that indemnifies the Owners and waives any liability of the Owners.
2.5 No alterations. KSWCD may not make or permit any alterations or improvements to the
Property without Owners' prior written consent, except it may install frames for holding
dirt that are no more than 12 inches high and a fence in compliance with the requirements
of the City of Kodiak. On expiration or termination of the Permit, all improvements and
alterations to the Property will belong to the Owners except the portable or
nonpermanent improvements or any other improvement the Owners request in writing
removed. Owners will have no obligation to reimburse KSWCD for any improvements that
r6main with the Property.
2.6 Equipment and Structures. No structures are permitted on the Property except as
otherwise provided in this Permit. KSWCD may install a small and low toolbox or any other
low standing container of no more than five (5) feet in height for storage so long as KSWCD
obtains written approval from the Owners for the use and installation of such a container.
2.7 No transfers. KSWCD may not assign, mortgage, pledge, encumber, or otherwise transfer
this Permit or allow the Property to be used or occupied by others, except by persons
maintaining a plot who are party to a gardener agreement contemplated by section 2.4.
Any attempted transfer in contravention of this section 2.7 is void and a violation of this
Permit.
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Contract No. FY2024-04
2.8 Right of Inspection. Owners may enter the Property at anytime and for any purpose.
2.9 Liens. KSWCD shall not incur, create, assume, or permit the creation of any lien on any
portion of the Property (including any mechanic's or materialmen's liens). KSWCD will
keep the Property clear of any liens arising out of any work performed or materials
furnished to KSWCD for or at the Property, and any other obligations.
2.10 Commercial Enterprise Prohibited. KSWCD may not undertake or allow the undertaking
of any commercial enterprise, including but not limited to the growth of agricultural
products forthe purpose of commercial sale on the Property.
3. EXPENSES
3.1 Utilities. KSWCD will have sole responsibility for obtaining and paying all water oranyother
utility service used on the Property during the term of the Permit.
3.2 Taxes. Owners will have sole responsibility for all property tax returns and payments
relating to the Property under federal, state, or local taxing authority if any such payments
or responsibilities apply to the Owners. KSWCD will have sole responsibility for paying all
personal property taxes or assessments levied on KSWCD's personal property on the
Property and all income or sales taxes that result from KSWCD's operations on the
Property. Owners agree to cooperate with KSWCD to receive any tax abatements,
exceptions, or other exclusions forwhich KSWCD mayqualify.
4. TERMINATION
4.1 At Will. This Permit may be terminated at anytime by either Owners or KSWCD with or
withoutcause. Termination is immediately effective.
4.2 Permit Violation, If KSWCD violates any of the conditions of this Permit, the Permit is
terminated, and the Owners mayseek anyand all remedies available to the Owners under
this Permit and as further defined in Section 4.7ofthis Permit,
4.3 Yielding Possession. Upon termination of this Permit, KSWCD will leave and surrender the
Property to the Owners in at least as good order and condition as on the date that this
Permit was signed.
4.4 Cooperate in Transition. Upon termination or expiration of this Permit, the rights of
KSWCD under this Permit will immediately, automatically, and without consideration
terminate and revert to Owners. KSWCD and Owners will cooperate in good faith in
reasonable transition activities prior to and after termination of this Permit in order to
minimize the impact on the community and Owners' use of the Property
4.5 Personal Property. If KSWCD or any gardener leaves any of his, her or its personal
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Contract No. FY2024-04
property on the Property after termination or expiration of the Permit, Owners may store
it for KSWCD's account and at KSWCD's risk. Owners will release the property only when
KSWCD pays all charges relating to storage and all otheramounts KSWCD owes the Owners
under this Permit. If KSWCD does not reclaim its property within the period permitted by
law, Owners maysell it in accordance with the law and apply the proceeds of the sale to
any amounts KSWCD owes Owners under this Permit or retain KSWCD's property against
any amounts owed by KSWCD to Owners.
4.6 Holding Over. If Owners terminate this Permit, any holding over by KSWCD after
termination of this Permit without Owners' written consent is not a renewal or extension
of the Permit and will not give KSWCD rights in or to the Property.
4.7 Cumulative Remedies. All of the Owners' rights, powers, and remedies under this Permit
are cumulative and not alternative and will be in addition to all rights, powers, and
remedies given to the Owners at law or in equity. The exercise of any one or more of these
rights or remedies will not impair Owners' right to exercise any other right or remedy
including all rights and remedies of landowners under or any similar, successor, or related
laws.
5. WAIVER OF LIABILITY
5.1 Waiver of liability. KSWCD releases and waives all claims against the Owners with respect
to or arising out of (a) any death or any injury of any nature whatsoever that may be
suffered or sustained by KSWCD's parties from any causes whatsoever, except to the
extent that such injury or death is caused by the gross negligence or willful misconduct of
Owners; (b) any loss or damage or injury to any personal property on or about the
Property, except to the extent such injury or damage is to property not covered by
insurance carried (or required to be carried) by KSWCD and is caused by gross negligence
or willful misconduct of the Owners or; (c) the condition of the Property and suitability of
the Property for use as a community garden. Subject to the prior provisions, Owners shall
not be liable for any damage or damages of any nature whatsoever to KSWCD caused by
explosion, fire, theft, crime, or negligent behavior, sprinkler damage, plumbing, or
irrigation systems, by failure for any cause to supply adequate drainage, by interruption
of any public utility or service, by steam, gas, water, rain, or other substances leaking,
issuing, or flowing into any part of the Property, or by anything done or omitted to be
done by KSWCD parties or any other person on the Property. In addition, Owners shall
not be liable for any losses which KSWCD is required to insure. This section will survive
termination of this Permit.
6. INSURANCE
6.1 Insurance. KSWCD will, at its own cost, take out and maintain without interruption during
the term of this lease comprehensive general liability insurance naming the Owners as
additional insureds, affording coverage for bodily and personal injury liability, including
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Contract No. FY2024-04
liability for death, and property damage, ora combination thereof, in an amount not less
than One Million Dollars ($1,000,000). Coverage shall be made on an "occurrence" basis
and not a "claims made" basis.
6.2 Evidence of Insurance. On or before Owners permit use of the Property by KSWCD,
KSWCD will provide Owners with a copy of the insurance policies required by Section 6.1
of this Permit. KSWCD will deliver to Owners evidence of each renewal or replacement of
any required insurance policy at least IO days prior to the expiration of such policy. In lieu
of the actual policies, KSWCD may deliver to Owners a certificate of insurance evidencing
KSWCD's insurance policies, provided that the Owners also receive a copy of the
endorsement naming Owners as additional insureds.
7. GENERAL PROVISIONS
7.1 Modification and Severability. This Permit may be modified only as stated in writing and
signed by both Owners and KSWCD which states that it is an amendment to this Permit. If
any provision in this Permit is held invalid or unenforceable, the other provisions will
remain enforceable, and the invalid or unenforceable provision will be considered
modified so that it is valid and enforceable to the maximum extent permitted by law.
7.2 Waiver. Any waiver of any term of this Permit must be in writing. Failure, neglect, ordelay
by a party at any time to enforce the provisions of this Permit will not be considered a
waiver of the party's rights under this Permit. Any waivershall not be considered a waiver
of any later breach or violation of this Permit or the right to enforce any provision of this
Permit.
7.3 Counterparts. This Permit may be executed in one or more counterparts, each of which
shall be deemed an original and all of which will be taken together and deemed to be one
instrument. Transmission by fax or PDF of executed counterparts constitutes effective
delivery.
7.4. Notices. Notices and consents under this Permit must be in writing and delivered by mail,
email, courier or fax to the addresses set out on the signature page of this lease. These
addresses may be changed by written notice to the other party. Notices given in the
manner provided bythissection will be considered given two business days after delivered
in the mail, the day such notices are delivered via email where delivery is confirmed by
the receiver or the first business day after delivery by courier or delivery by fax.
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Contract No. FY2024-04
IN WITNESS WHEREOF the parties hereto have executed this permit and agree to its terms and
condition:
Tenant
Kodiak Soil & Water Conservation District
Signature 7 __
Title:r :� S )! L --r, i
Email: 61"
Date:
Owners
City of Kodiak
IL
Signatur
Mike Tvenge
Manager
mtvenge @city.kodiak,ak.us
Date: CA
ATTEST:
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l9 `` Signature _...
Aimee Williams
Manager
awilliams@kodiakak.us
Date: 3 0 Jw.J ZS
ATTEST: Sem Ct1�L
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Contract No. FY2024-04
EXHIBIT
Land Use Permit Area
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