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7.b) Draft Agreement for Butterfly Garden with FriendsLILLESKOGEN PARK BUTTERFLY GARDEN AGREEMENT CITY OF SCANDIA FRIENDS OF SCANDIA PARKS AND TRAILS SCANDIA, MINNESOTA This LILLESKOGEN PARK BUTTERFLY GARDEN AGREE ME is"Agreement"), is entered into as of this _ day of , 2018, by and between **Cit of Scandia, a Minnesota municipal corporation and political subdivision, located at 1727 209th Street North, Scandia, Minnesota 55073, (the "City") the Friends of Scandia Parks and Trails (FSPT). WITNESSETH WHEREAS, the City owns and maintains a municipal park referred to as Lilleskogen Park located at the southwest corner of STH 97 and Oakhill Road; and WHEREAS, the City approved i all'o the Butterfly rden on __ _, 201x; and WHEREAS, the City FSPTe I ' a ready, w'nd enter into an agreement forthe on-going mainter of theNeting first butterfly garden installed at Lilleskogen Park. NOW, THEREFOR - and for other goc acknowledged, tV DEFINITIONS nd the mutual covenants set forth herein, ,ceipt and sufficiency of which is hereby As used in this Agreement, the (following terms have the following meanings: "Butterfly Garden" shall mean the approximate 2,000 s.f. area located at the southeast end of the parking lot.. "Premises" shall mean the site of the Butterfly Garden in Lilleskogen Park, Scandia, Minnesota. "Term" shall mean a calendar year increment of this Agreement. TERM OF AGREEMENT This Agreement shall continue hereafter in perpetuity for additional Terms until such time as the FSPT is disbanded or no longer able to fund any material maintenance obligations under this Agreement. The Term of this Agreement may be altered, changed, extended or otherwise modified as mutually agreed to in writing by all parties to this Agreement. TERMINATION This Agreement may be terminated: At the option of any party, in the event that any materi rtio of the Butterfly Garden shall be condemned, fully or partially destroyed or da by ural disaster orfire, or if insurance proceeds are insufficient to repair the Bu fly Garden after a natural disaster, fire or accident. Termination of this Agreement shall be wit prejudice to any outsta g obligations of the parties accrued hereunder through the eff i date of termination, and s for damages arising out of the event or cause constituting the basis for such ter r n, including, without limitation, in the event of he FSPT's breach, City's right to req e the immediate payment of all material obligati OWNERSH I P AND USE OF PREMISES The Cit shall retaAS ershi of the ark rt u d aich the Butterfly Garden stands Y p p Y p Y and shall declarehip of th Butterfly rden upon its completion. For and in eration of the herei r stated, the FSPT will coordinate the on- going Oenance a But fly Garden. The City an eevs nec Bary to discuss changes to the design of and plantings within the Buen. No party ryake changes to the design or planting without the express writtof all I ties. The Premises shall remain part of a City -owned public park and therefore shall remain available and open to th4 general public during park hours. INSURANCE The City agrees to secure property insurance coverage for the Butterfly Garden and the The City agrees to provide liability and worker's compensation coverage for volunteers pursuant to any City volunteer policy in place at the time that the work is performed. The FSPT agree that they will not use or permit upon said Premises, any person, place, thing, or any activity that will invalidate any policies of insurance now or hereafter carried on said 2 Premises and property. MAINTENANCE OF BUTTERFLY GARDEN GROUNDS AND STRUCTURES The FSPT is responsible for the maintenance for the community garden, including weeding, replacement planting, supplemental planting, watering, spring removal of dead material, and wood chip mulch replacement. Installation of new plant material. • Up to 10 percent of the plants installed may be species thakre not native to MN, but are conducive to butterflies based on listing compiled by t xtension, MN DNR or other recognized authority. • FSPT will follow the initial planting plan for th deNalant sta ' hing short plants along the front edge, medium height plants in the midd e, an s in a back. The City will recognize that the Butterfly Ga and will not have a highly manicured appea FSPT will remove non-native wAN from east Notwithstanding the maintenance d improvements in or t The FSPT shall corf" conditions of the Prem In the necessary.re any rE unsatisfactory c dition unsatisfactory con 'on. action, the FSPT shall maintaining the premise. above, with payment ter of intended to al planting FKake no alterations or capital nt of the City. ity and its agents concerning maintain -T emises to the satisfaction of the City, the City the anup and/or maintenance deemed to be reasonably al acti ken, the City will provide written notification of any SPTallow either party reasonable time to correct the i vent that the City deems it necessary to take such remedial the City for all costs incurred by the City in cleaning and/or City will send a written invoice to FSPT at the address listed nclosed. The City shall be responsible for general maintenance of the park property outside of the perimeter of the Butterfly Garden. COMPLIANCE WITH LAW Each party hereby agrees to comply with all laws, ordinances, rules and regulations of any federal, state, county, municipality or other government authority in connection with the exercise of the rights and performance of the maintenance obligations hereunder. 3 The SVMC and FSPT shall comply with all laws, ordinances, rules and regulations applicable to the maintenance and use of the Butterfly Garden. TERMINATION Both FSPT and City reserve the right to terminate this agreement at any time. Any request for termination shall be submitted in writing to the other party involved in this agreement. Should the City determine the butterfly garden is no longer suitable for this location, FSPT reserves the right to remove and relocate the plant material. Should FSPT request termination of this agreement, FSPT shall have the option to remove the plant materi Is within 30 days of giveing notice after which the City assumes all rights to the pla.4 rial athe future plans for the garden. REPRESENTATIONS AND WARRANTIES The City hereby represents and warrants that: N. 1. It has all necessary rightticen and authoriza n to carry out the terms of this Agreement; 2. It has full ow horit to enter into this A ree nt and to make and perform its p Y g covenants, esentati and undertakings conta ned herein; and 3. The individual w as si d this Agre eo on behalf of the City has been duly a OM do so. The FS7r%rebv repress andT&rrants that: 1. It has alcessary rig P , lice4Ws and authorization to carry out the terms of this Agreement, 2. It has full power authority to enter into this Agreement and to make and perform its covenants, rep entations and undertakings contained herein; and 3. The individual who has signed this Agreement on behalf of the FSPT has been duly authorized to do so. INDEMNIFICATION Each party shall defend, indemnify and hold harmless the other party and its officers, directors, employees and agents from and against any and all costs, claims, damages, losses, liabilities and expenses including, but not limited to, reasonable attorney's fees, arising out of or related to I1 any breach or non-performance by the indemnifying party of any of its maintenance obligations under this Agreement. Furthermore, each party mutually agrees to indemnify and refund to each other all such sums, which the respective party may be obligated or adjudged to pay, including attorney's fees and costs, on such actions, claims, or demands within thirty (30) days after written request for such indemnification. Failure to comply with the terms of indemnification as outlined herein may result in termination of this Agreement at the option of the non-breacjAgg party. Y01*.TOaJi1_11 V]R9 No party shall be liable to the other because of a the extent that such failure is caused by fire, egJ governmental regulations or restrictions, goff stoppage or any other cause or condition, " beyond the reasonable control of such party. Any termination under this se maintenance obligations of t14 termination. RELATIONSHIP OF TIES Nothing herein contai shal partners, and ag t No pa all have the ht, behalf of th therparty, e NOTICES Any notices, requests, Agreement shall be in w g under this Agreement to gther acts of God, I3king, vandalisM, strike, labor r or dissimilar to an f going, k udice to the outstanding the effective date of e any relationship of joint ventures, purport in any manner, to create any obligation on W -wise expressly described in this Agreement. or other communications required or permitted under this been given when delivered personally, two (2) business days afterbeing deposited with a recognized overnight courier service with all charges prepaid or billed to the sender, or three (3)business days after being mailed by certified mail, return receipt requested, addressed to the party being notified at the address of such party first set forth above, or at such other address as such party may hereafter and therefore have designated by notice; provided, that any notice and change of address shall not be effective until its receipt by the party to be charged therewith. GENERAL 5 Neither this Agreement nor any of the terms or conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party to be charged therewith. Any waiver or amendment shall only be applicable in the specific instance, and shall not constitute or be construed as a waiver or amendment in any other subsequent instance. No failure or delay on the part of either party in respect of any enforcement of its maintenance obligations hereunder shall in any manner affect such party's right to seek or effect the enforcement at any other time or in respect of any other r red performance. Neither this Agreement, nor any rights or obligations eund ay be assigned by any party without prior written consent of all other parties. The captions and paragraph headings used in thf'is Agreement are for convenience of reference only, and shall not affect the construction or inrpret on of this Agreement or any of the provisions hereof. IV This Agreement and all mattersisputes relating tore validity, construction, performance or enforcement hereof, shall be overned%,and constru in accordance with the laws of the State of Minnesota. This Agreement sh bindin pon and nure to enefit of the parties hereto and their respective s ors and p rmitted as ns. This Agreer�ll�,be ex uted in any number ounterparts, each of which shall be deemed to be an original hereof, but all of which ogether shall constitute on and the same instru nt. In the event o any dispute under or arising out of this Agreement, the prevailing party in such dispute shall entitled towcover from the non -prevailing party or parties, in addition to any d mages and other#ief that may be awarded, its reasonable costs and expenses, includin easonabI ttorney's fees, incurred in connection with prosecuting or defending the subjec ispute This Agreement constitut a sole and entire agreement and understanding between the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter. This Agreement is intended for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and no other person or entity shall have any right to rely on this Agreement or to claim or derive any benefit here from absent the express written consent of the party to be charged with such reliance or benefit. If any of the provisions of this Agreement are held to be invalid or unenforceable, either in its 0 entirety or by virtue of its scope or application to given circumstances, such provision shall thereupon be deemed modified only to the extent necessary to render same valid, or not applicable to given circumstances, or exercised from this Agreement, as the situation may require; and this Agreement shall be construed and enforced as if such provision had been included herein as so modified in scope or application, or had not been included herein, as the case may be. 7 SIGNATURES IN EXECUTION OF AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement and affixed their seals as of the day and year first set forth above. CITY OF SCANDIA Date: Mayor Date: Witness '% FRIENDS OF SCANDIA PARKS AND Viv t IX 0 Date: Da