LICENSE AGREEMENT This agreement is entered into this 11th day of February, 2010 between the Dracut Land Trust, Inc. ( DLTI ), a non-profit corporation having an address at 156 Jones Avenue, Dracut, MA 01826 and Tufts University, a Massachusetts non for profit corporation having an address at Ballou Hall, Medford, MA 02155 ( Tufts or Licensee ). BACKGROUND A. DLTI owns certain property and improvements commonly known as Ogonowski Memorial Parcel located at Jones Avenue and Rte 113 in Dracut, Middlesex County, Massachusetts (the Farm ). B. Tufts intends to use a portion of the Farm shown as Parcel F1 on Exhibit A attached hereto and made a part hereof (the Property ) in connection with the New Entry Sustainable Farming Project ( New Entry ) and desires to continue to do so, and DLTI has agreed to grant a license to Tufts for such purposes, subject to the terms and conditions hereinafter set forth. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. LICENSE. DLTI licenses to Tufts the right to use the Property for agricultural and related purposes only by New Entry. 2. TERM. The term of this agreement shall commence on the date this agreement is executed by the parties and shall end on December 31, 2012, with extensions by mutual agreement of the parties, and this agreement shall terminate upon the expiration thereof, unless sooner terminated as provided herein. DLTI agrees that all of the rights granted to Tufts under this agreement are irrevocable until termination as provided herein. If, at any time during this License, Tufts no longer administers New Entry, or determines that it no longer has any need to use the Property as provided hereunder for this University program, then, in either such case, Tufts may terminate this License early by giving written notice to DLTI within thirty (30) days of such determination. Termination under this Paragraph shall be effective thirty (30) days after it is mailed by Tufts to DLTI. 3. LICENSE FEE. Tufts shall pay an annual License Fee of $300 during the term of this Agreement. DLTI shall pay all taxes (including real estate taxes) assessments (special, betterment or otherwise), levies, fees, and charges, and all other governmental levies, impositions and charges, general and special relating to the Property. 1
4. INSURANCE. At all times during the term, Tufts, at its expense, shall maintain worker s compensation insurance with statutory limits covering all of Tufts employees accessing the Property, and shall maintain general liability insurance covering other claims for damage to property or for personal injury, including death, to anyone directly or indirectly engaged or employed by Tufts at the property. DLTI shall also carry similar general liability insurance coverage. General liability limits included as part of such insurance shall be $2,000,000 combined single limit per occurrence with aggregate coverage of $3,000,000 (including excess liability). All policies of insurance required to be carried by Tufts hereunder shall (a) be written by United States Fidelity and Guaranty or such other company reasonably acceptable to DLTI, and (b) not be subject to cancellation or material modification without at least twenty (20) days prior written notice to DLTI. All insurance which is carried by either party with respect to the Property or to any improvements or equipment therein or alterations or improvements thereto, whether or not required, shall include provisions which either designate the other party as one of the insured or deny to the insurer acquisition by subrogation of rights of recovery against the other party to the extent such rights have been waived by the insured party prior to occurrence of loss or injury, insofar as, and to the extent that such provisions may be effective without making it impossible to obtain insurance coverage from responsible companies qualified to do business in the Commonwealth of Massachusetts (even though extra premium may result therefrom) and without voiding the insurance coverage in force between the insurer and the insured party. On reasonable request, each party shall be entitled to have duplicates or certificates of policies containing such provisions. Each party, on behalf of itself and its insurers, hereby waives all rights of recovery and subrogation against the other for loss or injury against which the waiving party is protected by insurance containing said provisions (including for negligence, to the extent permitted by M.G.L. Chapter 186, Section 15), reserving, however, any rights with respect to any excess of loss or injury over the amount recovered under such insurance. Tufts will, as often as DLTI may reasonably request, furnish DLTI with insurance company certificates of such insurance. Tufts will not do or permit to be done anything in or about the Property which shall make void or voidable any insurance required to be carried by Tufts hereunder. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS. DLTI represents and warrants that: (a) DLTI (i) solely owns the Property in fee simple, unencumbered by any liens, conservation restrictions, mortgages, or encumbrances of record which would adversely affect Tufts use and enjoyment of the Property under this Agreement; (ii) is duly organized/formed, validly existing and in good standing and has all rights, power and authority to make this Agreement and bind itself thereto through the party set forth as signatory of DLTI set forth below; and (iii) grants Tufts, unless Tufts defaults hereunder, 2
actual and quiet and peaceful use, enjoyment and possession, of the Property during the term as herein contemplated. Notwithstanding the above, Tufts acknowledges that the Property is or will be subject to a Conservation Restriction, a copy of which is annexed hereto as Exhibit B, which Restriction DLTI represents permits the use of the Property contemplated by this Agreement and will not adversely affect Tufts rights hereunder; and (b) the Property and its uses and operations, the making of this Agreement, and DLTI s performance of this Agreement, to the best of DLTI s knowledge, complies with, and will not violate any provision of, applicable law or any agreement or encumbrance of any kind under which DLTI is a party or is bound or which restricts in any way the use of the Property. Tufts represents, warrants and covenants that: (a) Tufts will not damage, deface or permit any nuisance in or about, the Property; (b) Tufts will comply with all laws, rules, regulations and requirements of all governmental authorities and insurance companies pertaining to Tufts permitted use of the Property, including without limitation, the guidelines of the Natural Resources Conservation Service of the USDA or any applicable regulations governing the use of pesticides and shall further comply with reasonable written rules and regulations concerning farm operations established by DLTI and provided to Tufts no less than thirty (30) days prior to implementation; (c) Tufts agrees to comply with all restrictions on use of the Property contained in the Agricultural Preservation Restriction entered into between DLTI and the Commonwealth of Massachusetts, dated November 12, 2003 and recorded in the Registry of Deeds for Middlesex County on December 12, 2003 in Book 18648, Page 174 (the APR ). Any requests for approvals or waivers required under the terms of the APR shall be submitted to DLTI and the supervising APR agency for approval. Tufts further agrees to indemnify and hold DLTI harmless for any violations of the APR requirements that Tufts or its agents may be responsible for. (d) Tufts will not do or permit to be done anything in or about the Property which shall be unlawful, improper, noisy, odorous or otherwise offensive or injurious to person or property and to abutting property owners. Tufts shall provide training and supervision during to New Entry farmers during their participation in the program; (e) Tufts may cultivate crops in fields on that portion of the Property designated by DLTI and portions of property will be restricted from cultivation. Specific license area to be marked with boundary posts to be installed by DLTI. (f) Tufts shall not use any engines larger than eighty five (85) horsepower on the Property without the prior consent of the DLTI, which consent shall not be unreasonably delayed or withheld; 3
(g) Tufts shall use reasonable efforts to operate the Property in compliance with Massachusetts General Laws Chapter 61A ( Chapter 61A ); provided that it shall be DLTI s responsibility to determine that Tufts permitted use hereunder entitles DLTI to seek or maintain classification of the Property under Chapter 61A and that it shall be DLTI s responsibility to make the necessary filings with the Dracut Board of Assessors relating to Chapter 61A; and, provided further that Tufts shall have no liability for any rollback or conveyance taxes that may be assessed against the Property at any time unless attributable to the willful violation by Tufts of the permitted uses hereunder, it being agreed by the parties that mere cessation of farming operations shall not be deemed such a violation; (h) Tufts will be permitted to install a 30 x 60 greenhouse structure, storage shed, shade shelter, electricity, and irrigation systems on the property with prior agreement and arrangement from DLTI. Tufts shall be responsible for obtaining all relevant permits of any kind and providing copies of same to DLTI. Tufts shall not install any structures or other improvements on the Property, or alter any existing improvements without the prior consent of the DLTI; (i) Vehicle parking area will be clarified and delineated by DLTI. Tufts and DLTI shall agree on the maximum number of vehicles which may be parked on the Property at any time. With respect to parking area, no loam is to be removed without approval from the state agency supervising the terms of the APR (currently, the Massachusetts Department of Agricultural Resources). (j) Areas around existing drainage system (french drains) at the Property are not to be tilled without DLTI approval, which will include consultation with the National Resources Conservation Service (NRCS). Tufts and DLTI shall agree on a reasonable allocation of the cost of installing any modifications to the existing drainage system. (k) Tufts shall not remove any timber or loam from the Property without the prior consent of the DLTI. No trees may be cut on the Property without prior consent of DLTI; Brush/Tree area southern boundary with residential property to be maintained. (l) Tufts shall place all stones removed from fields on or against existing stone walls; (m) Tufts shall not use the Property during the period from a half hour after sunset to a half hour before sunrise or in violation of any reasonable rules and regulations established by DLTI as aforesaid; (n) For purposes of erosion control, Tufts shall plant all fields with a cover crop at the end of each growing season, excluding fields planted with perennials. In addition, Tufts shall require that its employees and all New Entry farmers remove all debris, refuse, trash, and perishables from the Property on a daily basis; (o) Tufts will employ a manager responsible for managing activities on the Property and shall provide DLTI with the name and method of contacting such manager; 4
(p) Tufts shall not be liable to DLTI for any damage arising out of any unlawful or unauthorized access to the Property by third parties. DLTI shall not be liable for any damage to persons or property suffered by Tufts personnel or those utilizing property under this license; (q) Any fertilizer application and irrigation improvements made by Tufts to the Property shall conform with NRCS guidelines and any other reasonable written rules and regulations concerning farm operations established by DLTI and provided to Tufts no less than thirty (30) days prior to implementation. No flood or trench irrigation shall be performed on the Property. Tufts shall use irrigation techniques designed to provide water conservation and reasonable efforts to prevent erosion and leaching of nutrients and contamination of groundwater as a result of overfertilization; (r) Tufts will repair any damage to buildings, structures, driveways, field edges, stone walls, waterways and gates on the Property caused by the negligent or intentional misconduct of Tufts or any of its employees, agents, or other parties occupying the Property with Tufts permissions. Without limiting Tufts obligation to comply with the requirements of this Agreement regarding farming activities on the Property, Tufts shall have no obligation to maintain, repair or replace any improvements on the Property (including, without limitation, any such stone walls), other than any improvements installed by Tufts with DLTI s approval hereunder; (s) Tufts shall not permit any open fires on the Property provided, that Tufts shall be allowed to use controlled fire (in the form of sterno stoves) for cooking and shall be permitted to do controlled burns of excess brush with the approval of DLTI (which shall not be reasonably withheld) and the Dracut Fire Department; (t) Tufts is duly organized/formed, validly existing and in good standing and has all rights, power and authority to make this Agreement and bind itself thereto through the party set forth as signatory of Tufts set forth below. 6. DEFAULT, RIGHT TO CURE, TERMINATION. The following shall be deemed a default by Tufts and a breach of this Agreement: (a) non-payment of the annual license fee or other monetary obligations due as specified hereunder, if remaining unpaid more than ten (10) days after receipt of notice from DLTI of such failure to pay, or (b) Tufts failure to perform any other agreement, representation or warranty under this Agreement within thirty (30) days after receipt of such notice from DLTI reasonably specifying the failure. No such non-monetary failure, however, shall be deemed to exist if Tufts in fact shall honestly commence to rectify the same within such thirty (30) day period and provided such efforts shall be prosecuted to completion with reasonable diligence. In the event of any such default, beyond applicable the notice and cure period set forth above, DLTI may at any time thereafter terminate this Agreement by providing not less than six months notice to Tufts provided, however, if such notice of termination would 5
otherwise be effective on a date during the period between April 1 and November 30, such notice shall be deemed effective as of the following December 1. DLTI shall further retain the right to terminate this license should New Entry cease operations on the Property for thirty (30) days or more during a growing season, provided DLTI gives Tufts thirty (30) days written notice of such termination. Notwithstanding the same, Tufts liability for indemnification as provided in Part 10 of this Agreement will survive. 7. NOTICES. All notices and other communications shall be in writing and deemed given and delivered when delivered to a recognized overnight delivery service or when mailed by registered or certified mail, postage and registration or certification charges prepaid, addressed to a party as follows: If to DLTI: If to Tufts: With copies to: And to: Dracut Land Trust, Inc. 156 Jones Avenue Dracut, MA 01826 Jennifer Hashley Friedman School of Nutrition Science and Policy 150 Harrison Avenue, Rm. 121 Boston, MA 02111 Office of the University Counsel Tufts University Ballou Hall Medford, MA 02155 New Entry Sustainable Farming Project 9 Central Street, Suite 402 Lowell, MA 01852 Attention: Director or at any other address designated by either party by written notice to the other which shall thereupon become the effective address of such party for the purposes of mailing as provided in this Section. 8. ACCESS TO PROPERTY. DLTI may enter the Property at any time for inspection, repairs, improvement or to access the other parts of the Property, provided DLTI does not unreasonably interfere with the rights granted to Tufts hereunder. 9. OWNERSHIP OF CULTIVATED CROPS. DLTI acknowledges that all crops cultivated on the Property by Tufts shall be the sole property of Tufts. 10. INDEMNIFICATION. Tufts agrees to indemnify and hold DLTI harmless from and against all claims, actions, proceedings, costs, damages, and liabilities arising out of 6
Tufts negligence or willful misconduct (or that of its agents, employees, representatives or contractors) in connection with the operation of the Property or from Tufts breach of this Agreement (including, without limitation, any breach hereunder relating to application of pesticides or fertilizer), and excepting any loss, cost, liability or expense to the extent resulting from DLTI s negligent acts, omissions or willful misconduct, or failure of DLTI to perform its obligations hereunder. 11. MISCELLANEOUS. Tufts acknowledges that no leasehold or tenancy is created by this Agreement. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. This Agreement contains the entire understanding between the parties and supersedes any prior understandings and agreements. This Agreement may not be modified except by a written instrument signed by all parties hereto. If any provision hereof is held to be invalid or unenforceable for any reason, the remainder shall continue to be in full force and effect. Tufts shall not assign its rights under this Agreement without the prior written consent of DLTI, in DLTI s reasonable discretion; provided, that DLTI acknowledges and confirms that New Entry has the right to use the Property in accordance with the terms of this Agreement. Time is of the essence of this Agreement. Neither party shall record this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement shall not give rise to a joint venture relationship between the parties. 12. DLTI shall be entitled to retain interest in any and all capital improvements made to the Property at the conclusion or termination of this license agreement at no cost or expense (except to the extent the parties have agreed on an allocation of the cost of such improvements). 13. DLTI shall be entitled to reimbursement of all legal expense (including reasonable attorney s fees) or other reasonable costs incurred in enforcing the provisions of this agreement as a result of a default by Tufts hereunder following notice and an opportunity to cure as provided herein. WITNESS the execution hereof under seal the day and year first above written. Dracut Land Trust, Inc. Tufts University By: Name: Title: By: Name: Title: 7
LICENSE AGREEMENT This agreement is entered into this 11th day of February, 2010 between the Dracut Land Trust, Inc. ( DLTI ), a non-profit corporation having an address at 156 Jones Avenue, Dracut, MA 01826 and Tufts University, a Massachusetts non for profit corporation having an address at Ballou Hall, Medford, MA 02155 ( Tufts or Licensee ). BACKGROUND A. DLTI owns certain property and improvements commonly known as Ogonowski Memorial Parcel located at Jones Avenue and Rte 113 in Dracut, Middlesex County, Massachusetts (the Farm ). B. Tufts intends to use a portion of the Farm shown as Parcel F1 on Exhibit A attached hereto and made a part hereof (the Property ) in connection with the New Entry Sustainable Farming Project ( New Entry ) and desires to continue to do so, and DLTI has agreed to grant a license to Tufts for such purposes, subject to the terms and conditions hereinafter set forth. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. LICENSE. DLTI licenses to Tufts the right to use the Property for agricultural and related purposes only by New Entry. 2. TERM. The term of this agreement shall commence on the date this agreement is executed by the parties and shall end on December 31, 2011 (with the parties expectation that the Lease will be extended by mutual agreement), and this agreement shall terminate upon the expiration thereof, unless sooner terminated as provided herein. DLTI agrees that all of the rights granted to Tufts under this agreement are irrevocable until termination as provided herein. If, at any time during this License, Tufts no longer administers New Entry, or determines that it no longer has any need to use the Property as provided hereunder for this University program, then, in either such case, Tufts may terminate this License early by giving written notice to DLTI within thirty (30) days of such determination. Termination under this Paragraph shall be effective thirty (30) days after it is mailed by Tufts to DLTI. 3. LICENSE FEE. Tufts shall pay an annual License Fee of $300 during the term of this Agreement. DLTI shall pay all taxes (including real estate taxes) assessments (special, betterment or otherwise), levies, fees, and charges, and all other governmental levies, impositions and charges, general and special relating to the Property. 8