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HomeMy WebLinkAbout18- License Agreement - Greenspace Landscaping, Inc. - Use of City Property at the Bozeman Public Library 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- governing 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 (the "City") and Greenspace Landscaping, Inc., with a mailing address of 34039 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 of the 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 of the area of real Library Property depicted on Attachment 1. 3. Title. Licensee hereby acknowledges this license grants a privilege and not an interest in the Library Property and the title of the 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 Library Property by virtue 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. Term. This Agreement shall be in effect upon execution by both parties and shall run until 7R0 e , 201g unless revoked or terminated as provided herein. 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 governmental 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 attorney'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 of or resulting from or in any way related to: (i) the occupation or use of the Site by Licensee; and(ii)the negligent,reckless, or intentional misconduct of the 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 of the 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 attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Licensee was obligated to defend the claim(s) or was obligated to indemnify 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 itself and 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 life 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 for liabilities specifically assumed by the Licensee in subsection (a) of this Section. Within ten(10)days following execution of this Agreement,Licensee shall provide City with proof of such insurance in the form of a certificate of insurance, the insuring agreement and all applicable endorsements demonstrating that such insurance is in full force and effect and shall provide such proof when requested by City thereafter during the term of this Agreement. Licensee 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 of notice 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 form suitable to City. c. Licensee 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. 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 of this 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 fiom 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 of the City and shall inform the artist of such. 9. Revocation for City's Convenience. a. Should conditions arise which, in the sole opinion and discretion of the 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 Licensee ("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. b. Upon receipt of the Notice of Termination for City's Convenience, unless otherwise 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 the Site. 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 personnel 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 compensation 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 of race, 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 labyrinth 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 execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. If the 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. 15. Headings. The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular sections to which they refer. 16. Waiver. A waiver by City of any default or breach by Licensee of any covenants, terms,or conditions of this Agreement does not limit City's right to enforce such covenants,terms, or conditions or to pursue City's rights in the event of any 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 governed 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 for 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 of the 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. The 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 of the 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. 26. Integration. This Agreement and Attachment 1 hereto shall constitute the entire agreement of the 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. Chuck Winn,Assistant City Manager William Halpin,Vice President Date: ':� I -7 I ( F Date: 9/7 I /S �z Z� �o � Qm x $ w� F- 41 la- -- `;`: a LLJ V o fa Tg- 12,WO 15, 5 � �n ,'� , �♦ y � '�Il mom - � J i° n ' f >X— �eo