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HomeMy WebLinkAbout08-20-18 City Commission Packet Materials - C12. License Agreement with Greenspace Landscaping for Library LabyrinthPage 1 of 1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chuck Winn, Assistant City Manager SUBJECT: License Agreement for the Use of City Property for the Installation of a Walking Labyrinth at the Bozeman Public Library. MEETING DATE: August 20, 2018 AGENDA ITEM TYPE: Consent RECOMMENDATION: Ratify Assistant City Manager’s signature on a License Agreement allowing Greenspace Landscaping to install a walking labyrinth and associated landscaping on city-owned property at the Bozeman Public Library BACKGROUND: For more than a year the City has been working with David Kingman on his plans to build a meditation labyrinth on a underutilized section of the Library site on the southwest corner of the property. The project is planned in honor of Mr. Kingman’s late wife and will provide much needed improvements to an area that has been a maintenance challenge since the construction of the Library. The project is designed with drought tolerant landscaping and will be installed on top of the existing grade with little or no excavation. This is particularly desirable as the site contains old railroad infrastructure and is adjacent to the asbestos facility. For those reasons, we believe this project is a good use of the property. The city retains ownership and control of the site and there are no permanent encumbrances of the property. UNRESOLVED ISSUES: None ALTERNATIVES: As identified by the Commission. FISCAL EFFECTS: The entire cost of installation will be paid by private funds. The project is designed to be maintenance free, however, the Library Foundation and/or Mr. Kingman have agreed to fund any required maintenance above and beyond the routine maintenance currently provided to the site by the City. Attachments: Exhibit A: License Agreement Exhibit B: Site Plan/SOW Report compiled on: 8-13-18 212 LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY GREENSPACE LANDSCAPING, INC. This License Agreement (the "Agreement") is an agreement between the City of Bozeman, a self- goveming municipality operating pursuant to its Charter and the laws of the State of Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (he "City") and Greenspace Landscaping, Inc., with a mailing address of34039 East Frontage Road, Bozeman, MT 59715 (hereinafter the "Licensee," and together with the City the "Parties"). The Parties, in consideration of Licensee's promises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: 1. Purpose. The City agrees to authorize Licensee to temporarily access a portion of City of Bozeman Library Property ("Library Property" or "Site"), for purposes of installing a labyrinth. The Board of Directors ofthe Bozeman Library approved a plan to build a labyrinth on the Library grounds. The labyrinth will be a landscaped fifty foot diameter circular surface built of concrete and clay paving stone. The cost of the installation is funded by donations through the Bozeman Public Library Foundation. 2. Description of Site. The Site for which this Agreement applies consists only ofthe area of real Library Property depicted on Attachment I . 3. Title. Licensee hereby acknowledges this license grants a privilege and not an interest in the Library Property and the title ofthe City to the Library Property remains with the City, and Licensee agrees never to deny such title or claim, at any time, or claim any interest or estate of any kind or extent whatsoever in the l-ibrary Property by vinue of this Agreement or Licensee's occupancy or use hereunder. The City may enter the site at any time to assert its real Property interest or for other purposes which do not unreasonably interfere with the activities of the Licensee. Upon termination of this Agreement, title to all permanent improvements on the Library Property made by Licensee shall vest in City, free and clear of all debts, liens and encumbrances. All other improvements of a nonpermanent nature such as fixtures, machinery and furnishings made or installed by Licensee or any of its agents may be removed from the Site at any time unless such removal will damage the realty and/or permanent improvements. 4. Ter run until TUU g m.L This Agreement shall be in effect upon execution by both parties and shall. . 201ei unless revoked or terminated as orovided herein. 213 5. License. The City hereby grants non-exclusive permission, revocable and terminable as provided herein, to Licensee for Licensee's use of the Site, during the term listed above and on the terms and conditions set forth herein, which Licensee promises to comply with and abide by. Such right shall be limited to the right to use the Site solely for the purposes of installing the labyrinth. Licensee agrees to comply with all City ordinances and other rules and regulations regarding permits and approvals related to operations on the Library Property as well as those of any other govemmental entity having jurisdiction. 6. Indemnification and Insurance. a. To the fullest extent permitted by law, Licensee, recognizing it exercises its privileges under this Agreement at its own risk, shall release, and shall protect, defend, indemnify, and hold harmless the City, and their agents, representatives, employees, and officers from and against any and all claims, demands, actions, fees and costs (including attomey's fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City, occasioned by, growing or arising out ofor resulting lrom or in any way related to: (i) the occupation or use of the Site by Licensee; and (ii) the negligent, reckless, or intentional misconduct ofthe Licensee, its officers, employees, or agents. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an indemnitee described in this Section. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights ofthe indemnitee(s) which would otherwise exist as to such indemnitee(s). Licensee's indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Licensee to assert its right to defense or indemnification under this Agreement or under the Licensee's applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attomey fees incurred in asserting its right to indemnification or defense but only ifa court of competent jurisdiction 214 determines the Licensee was obligated to defend the claim(s) or was obligated to indemnif! the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City's performance under this Agreement, the City may elect to represent itselfand incur all costs and expenses of suit. These obligations shall survive termination of this Agreement. b. In addition to and independent from the above, during the lif'e of this Agreement Licensee shall at Licensee's expense maintain those insurances as may be required by City as set forth below through an insurance company or companies duly licensed and authorized to conduct business in Montana which insures the liabilities and obligations specifically assumed by the Licensee in subsection (a) of this Section. The insurance coverage shall not contain any exclusion lor liabilities specifically assumed by the Licensee in subsection (a) ofthis Section. Within ten (10) days following execution ofthis Agreement, Licensee shall provide City with proof of such insurance in the lorm of a certificate of insurance, the insuring agreement and all applicable endorsements demonstrating that such insurance is in full force and eflect and shall provide such proofwhen requested by City thereafter during the term of this Agreement. l-icensee shall notify City sixty (60) days prior to the expiration of any such required insurance coverage and shall ensure such required insurance coverage is timely renewed so that there is no lapse in coverage during the time such insurance must remain in place. Licensee shall notify City within two (2) business days of Licensee's receipt ofnolice that any required insurance coverage will be terminated or Licensee's decision to terminate any required insurance coverage for any reason. The insurance and required endorsements must be in a lbrm suitable to City. c. I-icensee shall obtain the following type of insurance in the amount indicated: Workers' Compensation - not less than statutory limits; and Commercial General Liability - $2,000,000 per occurrence. a 215 For liabilities assumed hereunder, the LIBRARY and City of Bozeman, their officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability policy. 7. Construction and Restrictions. Licensee may, at its sole expense and subject to approval from the City's Representative as listed in Section 11, modify, supplement, replace, and upgrade the Site at reasonable times during the term of this Agreement, so long as such activity is consistent with the permitted uses and in no way interferes with City operations. Any improvements or modifications required for installation or operation of equipment, as well as utility provisions and service, must conform to applicable regulations, specifications, codes and all standard City engineering requirements, in addition to all terms ofthis Agreement. 8. City not Consignee, Exhibitor or Art Dealer; Licensee not Agent. The Licensee recognizes the City in granting the permission to use the Site or in any other manner whatsoever is not acting as an exhibitor, consignee, or art dealer and notwithstanding the requirements of Section 6, above, Licensee shall indemnify, defend, and hold the City harmless from any claim of whatever nature regarding the City acting as a consignee, exhibitor, or art dealer. The Licensee shall inform each artist in writing the City is not acting in such capacity. The Licensee recognizes it, its officers, employees or agents and the artist of the labyrinth are in no way authorized to nor may they act as agents ofthe City and shall inform the artist ofsuch. b. Revocation for City's Convenience. Should conditions arise which, in the sole opinion and discretion olthe City, make it advisable to the City to use the Site for its own purposes, City may terminate this Agreement thereby revoking the license for use of the Site by written notice to [,icensee ("Notice of Termination for City's Convenience"). The termination shall be effective in the manner specified in the Notice of Termination for City's Convenience and shall be without prejudice to any claims the City may otherwise have against Licensee. Upon receipt of the Notice of Termination for City's Convenience, unless othcrwise directed in the Notice, the Licensee shall, within ninety (90) days, make every reasonable effort to remove the labyrinth if so directed by the City's Representative and shall restore the site to its original condition. 10. Termination by Licensee. Licensee may terminate this Agreement with (30) days written notice to the City. Upon such termination, the Licensee shall comply with all reasonable directives of the City's Representative regarding removal of fixtures and improvements and the restoration of thc Site. 9. 216 11. Representatives. a. City's Representative. The City's Representative for the purpose of this Agreement shall be Susan Gregory, Library Director, or her successor or designee. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City's Representative is not available, Licensee may direct its communication or submission to other City personnel or agents and may receive approvals or authorization from such persons. b. Licensee's Representative. The Licensee's Representative for the purpose of this Agreement shall be William Halpin. Whenever direction to or communication with Licensee is required by this Agreement, such direction or communication shall be directed to Licensee's Representative; provided, however, that in exigent circumstances when Licensee's Representative is not available, City may direct its direction or communication to other designated Licensee persormel or agents and may receive approvals or authorization from such persons. 12. Non-discrimination. Licensee shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Licensee shall not refuse employment to a person, bar a person from employment, or discriminate against a person in compensalion or in a term, condition, or privilege of employment, in performance of its acts and obligations under this Agreement, or in selection of sculptures for placement in the Park because ofrace, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability. Licensee shall require these nondiscrimination terms of its contractors and artists installing the Iabyrinth pursuant to this Agreement. 13. Dispute Resolution. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to exccute settlement agreements. Upon mutual agreement ofthe parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. Ifthe parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 14. Survival. Licensee's indemnification obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 217 15. Headings. The headings used in this Agreement are for convenience only and are not be construed as a part ofthe Agreement or as a limitation on the scope ofthe particular sections to which they refer. 16. Waiver. A waiver by City of any default or breach by Licensee ofany covenants, terms, or conditions of this Agreement does not limit City's right to enlorce such covenants, terms, or conditions or to pursue City's rights in the event ofany subsequent default or breach. 17. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 18, Applicable Law. The parties agree that this Agreement is govemed in all respects by the laws of the State of Montana. 19. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 20. Amendments. This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 21. No Third-Party Beneficiary. This Agreement is lor the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 22. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 23. Assignment. Licensee may not assign this Agreement in whole or in part and may not sublet all or any portion of the Site without the prior written consent of the City. No assignment will relieve Licensee of its responsibility for the performance ofthe Agreement (including its duty to defend, indemnify and hold harmless). This license shall not run with the land. 24. Authority. Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 25. Independent Contractor. 1'he parties agree and acknowledge that in the performance of this Agreement, Licensee shall perform its duties and obligations as an independent contractor and not as the agent, representative, subcontractor, or employee ofthe City. The parties further agree that all individuals and companies retained by Licensee shall at all times be considered either an agents, employee, or independent contractors of Licensee and at no time will they be the employees, agent, or representatives of the City. 218 26. Integration. This Agreement and Attachment I hereto shall constitute the entire agreement ofthe parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. ****End of Agreement Except for Signatures**** IN WITNESS WHEREOF, City and Licensee have caused this Agreement to be executed, effective on the date written below, and intend to be legally bound thereby. CITY OF BOZEMAN GREENSPACE LANDSCAPING. INC. nl/ rIll l , I-_yr \-LJ , --, t /firl/\Nt ^ \ AU/u(/ V v- '" -\-- William Halpin, Vice President Dil",8f 7 f te Chuck Winn, Assistant City Manager llDate:1lz ltz 219 220