HomeMy WebLinkAbout5B - Motion to approve the Growing Gardens Lease Agreement (2011-2014)
CITY OF BOULDER
PARKS AND RECREATION ADVISORY BOARD AGENDA ITEM
MEETING DATE: February 28, 2011
AGENDA TITLE: Public Hearing and Motion for approval of the Growing Gardens
Lease Agreement, 2011-2014
PRESENTERS:
Kirk W. Kincannon, CPRP, Director of Parks and Recreation
Mary Kazlauskas, Events Manager, Parks and Recreation Department
EXECUTIVE SUMMARY:
The City of Boulder has for many years, owned and managed the Community Gardens
Program, which had its origins in a hugely successful 1975 grassroots pilot project at
Olmstead Park, directly east of the North Boulder Recreation Center. Fifty plots were
made available to community members through the sponsoring efforts of the Parks and
Recreation Department with assistance from a small citizens group. Gradually, due to
high demand from the community, the programs physical scope grew to include the
approximately 10.5 adjacent acres, owned and leased to the city by the Long family.
Today, the program consists of the original Hawthorne garden site, as well as three
others: Foothills Community Park, Fortune Park and Hickory Garden. The overall
management of the program has transitioned over time from the Parks and Recreation
Department to various contractual entities, including Growing Gardens.
The City now desires to enter into a multi-year lease with Growing Gardens with the
intent that Growing Gardens will manage the Community Gardens Program, set and
collect garden plot fees and administer the City's program without City subsidy. The City
will retain the right to monitor the program and fees, to ensure that fees are reasonable
and that economically disadvantaged residents are not prevented from participating. The
parties desire to ensure that the program is a continued success, and to work
collaboratively on projects and program components that will assist in meeting the City
Council's sustainability goals.
AGENDA ITEM # V-B PAGE 1
Key Issue Identification:
1. The City of Boulder desires to continue providing the Community Gardens
Program in the most efficient and effective manner.
2. Growing Gardens is a not-for-profit organization with the mission to enrich the
lives of Boulder County residents through environmentally sustainable gardening
programs that empower people to experience a direct and deep connection with
plants, the land and each other and as such is uniquely qualified to manage the
Community Garden Program in an environmentally, socially and fiscally
sustainable manner.
3. The adoption of a three-year lease agreement will provide continuity and
dependability of services to the community, on behalf of the City of Boulder.
STAFF RECOMMENDATION: Staff supports the agreement being considered, and
recommends that the PRAB authorize its adoption by the City Manager.
Motion Language:
Staff requests PRAB consideration of this matter and action in the form of the following
motion:
Motion to authorize the City Manager to enter into a lease agreement with Growing
Gardens of Boulder County, a not-for-profit corporation, the provisions of which will
permit Growing Gardens to manage the City of Boulder Community Gardens Program
for three consecutive years, 2011-2014 (Attachment A).
COUNCIL FILTER IMPACTS
Economic: Overall economic impacts to the City of Boulder will be neutral however,
Growing Gardens will provide services on behalf of the Parks and Recreation Department
that is highly valuable to the community. The city will not be responsible for any subsidy
to the program, nor will it be liable for any debts or obligations by Growing Gardens. The
fee structure will be developed in consideration of expected program operating costs as
well as ability of participants to pay. A nominal rent for the property of $1.00/ year will
be assessed to Growing Gardens.
Environmental: By terms of the agreement, the program will be environmentally
sustainable. Wildlife and habitat on garden sites shall be protected as described in the
City of Boulder Wildlife Protection ordinances and the Urban Wildlife Management
Plan. Weed control will be in alignment with the City of Boulder's Integrated Pest
Management ordinance and policy, and no chemicals will be used without prior approval
of the City. Irrigation will be actively monitored to prevent erosion and water
conservation requirements will be in effect.
Social: Equal access and opportunity for participation by all community members will
be ensured by means of a required fee waiver or sliding scale fee for those unable to pay
AGENDA ITEM # V-B PAGE 2
full cost of a garden plot. Plots will be provided on a first come, first served basis. In
addition to administering garden plot rentals, Growing Gardens brings added value to the
community, as it administers other gardening programs such as the Cultiva youth
program, The Childrens' Peace Garden, Able Gardening: a Horticultural Therapy
program for people with disabilities, neighborhood composting, summer camps and
workshops, and other enriching activities for program participants.
OTHER IMPACTS:
Fiscal: With the adoption of the current agreement, Growing Gardens will no longer be
occupying office and storage space at the Iris Center and will no longer use city resources
such as phones, copiers, computers or meeting spaces. Indirect savings to the department
will result. Growing Gardens will bear the full cost of trash and restroom services at the
garden sites (except at Foothills Community Park site where public restrooms are
available). Although Growing Gardens is required to conserve irrigation water, the city
will maintain the irrigation system and provide reasonable water use at no cost based on
previous years usage. The City retains the right to charge for all irrigation water should
budgetary issues arise that would prevent offering it free of charge.
Staff time: Adoption of the agreement in general is not anticipated to require additional
staff time beyond that required to provide basic irrigation system maintenance, and
typical contract development and oversight.
Approved By:
Kirk Kincannon,
Department Director
ATTACHMENTS:
Attachment A: Growing Gardens Lease Agreement.
AGENDA ITEM # V-B PAGE 3
Attachment A
GROWING GARDENS LEASE AGREEMENT
THIS LEASE AGREEMENT, (the "Agreement") effective this I" day of January 2011,
by and between THE CITY OF BOULDER, a Colorado municipal corporation, (the "City") and
Growing Gardens of Boulder County,, a not for profit corporation, whose address is 1630
Hawthorn Avenue, Boulder Colorado 80304 ("Growing Gardens"), collectively (the "Parties").
RECITALS
WHEREAS, the City is the owner of certain real property, with the exception of the
Hawthorn (Iris Site), and the program known as the "Community Gardens" located within the
City of Boulder described generally as follows and more fully described in the attached Exhibit
A:
Hawthorn site (leased by the Growing Gardens)
Foothill Community Park site
Fortune Park site
Hickory Garden site
collectively (the "Property"), and
WHEREAS, the City has for many years owned and managed the Community Gardens
Program (the "Program"); the City now desires to enter into a multi-year lease with Growing
Gardens with the intent that Growing Gardens manage the Community Gardens Program, set and
collect the plot fees and administer the City program without any subsidy from the City. The
City will retain the right to monitor both the program and setting of plot fees to ensure that the
plot fees are reasonable and that the economically disadvantaged are not prevented from
participating in the program.
WHEREAS, the City desires to grant and convey to Growing Gardens the right to enter
and use, for gardening purposes only, the Property, and
WHEREAS, Growing Gardens desires to lease the Property from the City and to provide
services in support of the Program, and
WHEREAS, the Parties desire to ensure that the Program is a success and to work
collaboratively to identify projects and programs that will enhance the Boulder City Council's
sustainability goals as referenced in the Boulder Valley Comprehensive Plan policies 1.01
Community Sustainability.
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COVENANTS AND CONDITIONS
NOW, THEREFORE, in consideration of the recitals, promises, covenants, and
conditions set forth herein, and other good and valuable considerations herein receipted for, the
Parties agree as follows:
Section 1. TERM
The City does hereby grant and convey to Growing Gardens the right to enter and use for
gardening and management purposes only, the Property set forth in Exhibit A, a map attached
hereto and incorporated herein by reference and, together with any improvements thereon, for
the term commencing on January 1, 2011 and, unless earlier terminated as herein provided for,
end January 1, 2014, subject to use by the general public and other uses under the City's Parks
and Recreation Department policies, ordinances, regulations, and easements.
All mineral rights, including oil and gas, are expressly reserved. The Parties hereto
intend that this Agreement be treated as the grant and conveyance of a profit a prendre in the
Property for purposes of Colorado law and subject to the terms hereof.
If Growing Gardens continues to use the Property or otherwise holds over after the
expiration of any term of the Agreement, such continued use shall be for a month to month term,
ending on the last day of each month. Rent for such month to month term shall be a proration of
the rent specified herein, and all other provisions of this Agreement shall remain in effect.
Section 2. NO PARTNERSHIP EMPLOYMENT OR AGENCY
This Agreement is not intended to and shall not be construed as creating a partnership.
Neither Party shall be liable for debts or obligations incurred by the other. Growing Gardens is not
intended to be and is not considered by the Parties as an employee or agent of the City of Boulder.
Section 3. COLLECTION OF PLOT FEES
Growing Gardens is solely responsible for the setting, collecting and use of plot fees in
connection with the Program. Growing Gardens will ensure that economically disadvantaged
applicants are able to participate in the Program. Growing Gardens shall provide (in writing) a copy
of the plot fee schedule and collection procedure to the City thirty (30) days prior to this Agreement
taking effect. A fee structure may be developed by Growing Gardens in consideration of the
expected operating costs of the Program as well as the ability of garden members to pay. In order to
ensure equal access and opportunity to all community members the fee structure must provide a fee
waiver or sliding scale fee for those that indicate they are unable to pay the garden plot fee. Plots
will be provided on a first come first served basis.
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The City has the right to terminate this agreement if it determines that Growing Gardens' plot fees or
fee increases are too high (based on the prior year's fee schedule) and if discounted plot fees are not
available to the economically disadvantaged. Growing Gardens shall have an opportunity to cure
this default, if plots are available. However, if the Parties fail to agree on an acceptable plot fee
within 30 days of disclosing such plot fee, the City may at its option terminate this Agreement.
Section 4. RENT, TRASH AND RESTROOM MAINTENANCE
A. Rent for Property
The rent for the Property as described above shall be One ($1.00) Dollar total - per year, due
and payable on or before January 1St for each year the Agreement is in effect.
Late payments shall be subject to a late penalty computed at a rate of eighteen (18%)
percent per annum for any portion of the rent outstanding, and failure to pay rent in a
timely manner is grounds for termination.
Payments shall be made payable to City of Boulder and mailed or delivered to:
City of Boulder
Parks and Recreation Department
Attn: Kim Moore
3198 N. Broadway
Boulder, CO, 80304-2644
B. Iris Building Office Space
Growing Gardens has vacated the current City office space located at the Iris building 3198
N. Broadway. The City and Growing Gardens may work collaboratively should Growing
Gardens request city owned office space in the future. However, the City cannot guarantee
any future office space availability. Rent for any space available will be determined by area
commercial office space rates. Any such agreement on future office space will require a
written amendment to this lease.
C. Trash Fees and Restroom Maintenance
Growing Gardens agrees to secure and pay for all necessary trash and restroom service at
the Hawthorn Garden, Fortune Garden and Hickory Garden sites identified in Exhibit A.
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Section 5. WEED MANAGEMENT, WILDLIFE and WATER MANAGEMENT
A. Wildlife Mana eg ment
Growing Gardens agrees that all wildlife and wildlife habitat on the Property shall be
protected. The precise wildlife and wildlife habitat subject to this section shall be as
reasonably determined by the City from time to time and as more specifically designated or
identified in the City of Boulder's Wildlife Protection ordinances and, as appropriate, the
Urban Wildlife Management Plan.
B. Weed Management
Growing Gardens agrees to control weeds on the Property at all times. Weed control may be
through cultural, mechanical, biological, grazing, or chemical methods, or by methods as
prescribed by City. Herbicide applications shall be limited to Colorado approved chemicals
and rates recommended by the City of Boulder's Integrated Pest Management Coordinator
and approved by the City. No chemicals shall be used without the prior approval of City.
Growing Gardens shall comply with City of Boulder ordinances and policies regarding
chemicals and pesticides.
C. Water Management
Growing Gardens agrees to conserve water, including, but not limited to, diligently
applying available water to land and crops; to diligently irrigate the crops; and to prevent
soil erosion. Growing Gardens agrees to prevent water from accumulating in low-lying
areas in order to prevent mosquito infestation or growth.
Since the Community Gardens Program is a City owned program, the City shall maintain
the irrigation systems, make repairs as necessary unless acts of negligence, committed by
Growing Gardens are evident, and the City shall provide all reasonable water use at no
cost, based on the previous year's usage.
The City retains the right to charge Growing Gardens for any and all irrigation water
costs should the City be unable to provide water for budgetary reasons. Notice shall be
given to Growing Gardens at least six (6) months in advance of any failure to provide
such water.
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Section 6. TERMINATION
A. Grounds for Termination
The occurrence at any time of the following event shall constitute a Growing Garden's
default.
The failure of Growing Gardens to perform or cause to be performed any obligation required
by Growing Gardens under this Agreement; provided, however, that if such failure by its
nature can be cured, then Growing Gardens shall have a period of thirty (30) business days
after receipt of written notice from the City of such failure to Growing Gardens to cure the
same and a Growing Gardens default shall not be deemed to exist during such period.
If a Growing Gardens default as described above has occurred and is continuing, and if
Growing Gardens fails to correct or cure the conditions causing such default within thirty
(30) days after having received the City's written notice of the City's intent to terminate this
Agreement as a result of such default, then the City, at its sole option may terminate this
Agreement and it shall be of no further force or effect as of the last day of such thirty (30)
day period.
Upon termination for any reason or expiration of the term of this Agreement, Growing
Gardens shall relinquish all rights to the use of the Property at the end of the term or in the
case of a default, at the end of said notice period. If Growing Gardens fails to do so, the City
may take such action as the City may deem necessary (all at Growing Gardens' cost and
expense) to enforce removal of Growing Gardens and all of Growing Gardens' personal
property and improvements from the property by any legal means available.
Growing Gardens shall reimburse the City for City's reasonable attorney fees, including the
reasonable cost of legal services provided by the City Attorney's office, and costs and
expenses of any suit to remove Growing Gardens.
B. Settlement Upon Termination
Within ninety days of termination of this Agreement, by expiration of its term or otherwise,
an accounting shall be created and reconciled between the Parties.
Growing Gardens' tools, supplies, or equipment located on the Property shall be subject to
the City's lien, herein established, and as may be granted by State law until the City receives
payment of any outstanding amount owed to the City.
Growing Gardens agrees to transfer, assign, or endorse any of its contracts and payments to
City or City's designee.
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C. Condition of Property
Upon termination or expiration of this Agreement, Growing Gardens agrees that the Property
will be in as good order and condition as it was at the beginning of the Agreement term,
ordinary wear and tear, depreciation and loss or damage to the improvements caused by the
elements excepted.
Section 7. GENERAL COVENANTS
A. No work, supplies, or materials shall be contracted for in the name of the City by Growing
Gardens.
B. Growing Gardens agrees to take and use the Property subject to the usual hazards attendant
to a gardening operation and agrees to assume all risks and liability for accidents to Growing
Gardens, its family, employees, guests, agents, and contractors on the Property
C. The acceptance of use rights hereunder by Growing Gardens shall be conclusive evidence that
Growing Gardens has examined the Property and agrees that the improvements and all
fixtures thereon were safe, adequate, and suitable for their purposes when Growing Gardens
accepted rights to the Property.
D. Growing Gardens agrees to indemnify and save harmless the City against any and all claims,
debts, demands, or actions of any kind or nature and any and all related costs and expenses,
including reasonable attorney fees, by any person or entity, arising, directly or indirectly,
from any occurrence occasioned in whole or in part by Growing Gardens' use of the
Property, or by any act, omission or negligence of Growing Gardens, its employees, agents,
or contractors. Growing Gardens shall store its personal property and shall enter and use the
Property at its own risk, and Growing Gardens hereby releases City, to the full extent
permitted by law, from all claims of every kind, including damage to merchandise,
equipment or other property, or damage to business or for business interruption, arising
directly or indirectly from Growing Gardens' use of the Property.
E. Growing Gardens shall not assign this Agreement nor lease the Property or any part thereof.
No assignment, lease, pledge, or mortgage of Growing Gardens' interest herein shall be
made. Growing Gardens shall do no act which shall in any way encumber City's title to the
Property, nor permit the Property to become subject to a lien of any kind.
F. City shall be accorded access to the Property in cases of emergency and at all reasonable
times in order to observe Growing Gardens' use of the Property and all farm and gardening
activities and to secure its rights and perform its obligations hereunder.
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G. Growing Gardens agrees that any statutory or common law lien on the products produced on
the Property for the faithful performance of Growing Gardens' undertakings, is expressly
reserved.
H. Growing Gardens shall not permit or engage in any hunting or trapping or poisoning or
burning or cutting of trees on the Property, or other acts prohibited by City of Boulder
Revised Code, 1981 "Code". Growing Gardens agrees to abide by said Code and all other
City ordinances, rules and regulations now in force or as they may be amended from time to
time, and to abide by all applicable laws and regulations of any other governmental authority.
I. City may enter into a licensing agreement or agreements to allow bee hives to be placed on
the Property to encourage pollination and plant production.
3. Except as specifically provided for herein, Growing Gardens shall not construct, nor permit
construction of, any structure, building or other improvement on the Property without City's
prior written approval.
K. Growing Gardens shall comply with all applicable laws of the United States, the State of
Colorado, Boulder County, and the ordinances and codes of the City, in effect as of the
date of this Agreement or during the term of this Agreement.
L. Pursuant to Section 12-1-10, B.R.C. 1981, Growing Gardens shall not discriminate
against any employee or applicant for employment nor against any applicant or
participant in any of its programs because of race, creed, color, national origin, sex,
sexual orientation, marital status, religion, ancestry, mental or physical handicap, or age,
except when sex or age or absence of mental or physical handicap is a bona fide
occupational qualification and in the instance of a handicap, no reasonable
accommodation can be made. Nor shall Growing Gardens discriminate in any of these
prohibited ways against any garden plot renter, volunteer or other person who's
gardening related activities at the site or on its behalf are managed or coordinated by
Growing Gardens as a result of this Agreement.
M. Growing Gardens shall procure all permits and licenses, pay all charges, fees, and taxes
and give all notices necessary and incidental to the due and lawful pursuit of their
services under this Agreement.
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Section 8. NOTICE
A. All notices and demands herein required shall be in writing and shall be sufficient if sent
electronically or mailed, postage prepaid, addressed to each Party as follows:
To City: Director of Parks and Recreation
City of Boulder
3198 N. Broadway
Boulder, CO 80304-2644
To Growing Gardens: Growing Gardens of Boulder County, Inc.
1630 Hawthorn Avenue,
Boulder, Colorado 80304
B. Notice shall be effective as of the date following the date of mailing.
Section 9. SEVERABILITY
In the event that any provision hereof shall be unlawful or held to be unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or render unenforceable any other
provision of this Agreement.
Section 10. NON-WAIVER
No assent, express or implied, to any breach of any one or more of the provisions hereof shall
be deemed or taken to be a waiver of any succeeding or other breach of the same or a different
provision.
Section 11. PROHIBITIONS ON CONTRACTS FOR SERVICES
Growing Gardens certifies that they shall comply with the provisions of section 8-17.5-
101 et seq., C.R.S. Growing Gardens shall not knowingly employ or contract with an illegal
alien to perform work under this contract or enter into a contract with a subcontractor that fails to
certify to Growing Gardens that the subcontractor shall not knowingly employ or contract with
an illegal alien to perform work under this contract.
Growing Gardens represents, warrants, and agrees (i) that it has confirmed the
employment eligibility of all employees who are newly hired for employment to perform work
under this contract through participation in either the E-Verify or the Department Program; (ii)
that Growing Gardens is prohibited from using either the E-Verify Program or the Department
Program procedures to undertake pre employment screening of job applicants while the public
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contract for services is being performed; and (iii) if Growing Gardens obtains actual knowledge
that a subcontractor performing work under the public contract for services knowingly employs
or contracts with an illegal alien, the Growing Gardens shall be required to:
a) Notify the subcontractor and the City within three days that the Growing Gardens has
actual knowledge that the subcontractor is employing or contracting with an illegal alien;
and
b) Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to 8-17.5-102(2)(b)(III)(A) the subcontractor does not stop
employing or contracting with the illegal alien; except that the Growing Gardens shall not
terminate the contract with the subcontractor if during such three days the subcontractor
provides information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien.
Growing Gardens further agrees that it shall comply with all reasonable requests made in
the course of an investigation under section 8-17.5-102(5), C.R.S. by the Colorado Department
of Labor and Employment. If the Growing Gardens fails to comply with any requirement of this
provision or section 8-17.5-101 et seq., C.R.S. the City may terminate this contract for breach
and Growing Gardens shall be liable for actual and consequential damages to the City.
Section 12. INSURANCE
Growing Gardens agrees to procure and maintain in force during the term of this
Agreement, at its own cost, the following minimum coverage's:
A. Workers' Compensation and Employers' Liability
State of Colorado: Statutory
Applicable Federal: Statutory
Employer's Liability: $100,000 Each Accident
$500,000 Disease-Policy Limit
$100,000 Disease-Each Employee
Waiver of Subrogation
B. Commercial General Liability
Bodily Injury & Property Damage General Aggregate Limit $1,000,000
Personal & Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
The policy shall be on an Occurrence Form and include the following coverage's:
Premises Operations; Personal and Advertising Injury; Medical Payments; Liability assumed
under an Insured Contract; Independent Contractors; and Broad Form Property Damage.
Coverage provided should be at least as broad as found in Insurance Services Office (ISO) form
CG0001.
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Prior to the execution of this Agreement by the City, Growing Gardens shall forward
Certificates of Insurance to the City. The insurance required shall be procured and maintained in
full force and effect for the duration of the Agreement. Certificate Holder shall be the City of
Boulder at 1777 Broadway, P.O. Box 791, Boulder, CO 80306.
All insurance policies (except Workers Compensation) shall include City of Boulder
and its elected officials and employees as additional insured's as their interests may appear.
The additional insured endorsement should be at least as broad as ISO form CG2010 for General
Liability coverage and similar forms for Commercial Auto Liability.
The City requires that all policies of insurance be written on a primary basis, non-
contributory with any other insurance coverage's and/or self-insurance carried by the City.
The City reserves the right to reject any insurer it deems not financially acceptable by
insurance industry standards. Property and Liability Insurance Companies shall be licensed to do
business in Colorado and shall have an AM Best rating of not less than A- VI.
Certificates of insurance on all policies shall give the City written notice of not less than
thirty (30) days prior to cancellation or change in coverage.
Notwithstanding any other provision of this Agreement to the contrary, no term or
condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of
any of the immunities, rights, benefits, protection, or other provisions of the Colorado
Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as now or hereafter amended.
The Parties understand and agree that liability for claims for injuries to persons or property
arising out of negligence of the City, its departments, institutions, agencies, boards, officials and
employees is controlled and limited by the provisions of Section 24-10-101 et seq., C.R.S., as
now or hereafter amended.
Section 13. AMENDMENTS/ENTIRE AGREEMENT
This Agreement contains the entire Agreement of the Parties and may not be altered or
amended except by written Agreement signed by both Parties.
DATED this day of )2011.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement effective as of the day
and year first above written.
GROWING GARDENS
By:
Title:
STATE OF COLORADO )
COUNTY OF BOULDER )
Acknowledged before me, a notary public, this day of 20_, by
as
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
CITY OF BOULDER
City Manager
ATTEST:
City Clerk on behalf of the
Director of Finance and Record
Approved as to Form: Copy Received:
City Attorney's Office Kirk Kincannon, Director
Parks and Recreation Department
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EXHIBIT A
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`800 CherTV Ave
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hawthorn gardens - I
1630 Hawthom I
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Valmont Rd a
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401 Canyon Blvd
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b t i j- hickory gardens
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