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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 AGREEMENT (this"Agreement"), is entered into as of this _ day of , 2018, by and between the City of Scandia, a Minnesota municipal corporation and political subdivision, located at 14727 209th Street North, Scandia, Minnesota 55073, (the "Citi") 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 installation of the Butterfly Garden on __ _, 201x; and WHEREAS, the City and FSPT are ready, willing and able to enter into an agreement for the on-going maintenance of the existing first butterfly garden installed at Lilleskogen Park. NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: DEFINITIONS 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 material portion of the Butterfly Garden shall be condemned, fully or partially destroyed or damaged by natural disaster orfire, or if insurance proceeds are insufficient to repair the Butterfly Garden after a natural disaster, fire or accident. Termination of this Agreement shall be without prejudice to any outstanding obligations of the parties accrued hereunder through the effective date of termination, and any claims for damages arising out of the event or cause constituting the basis for such termination, including, without limitation, in the event of the FSPT's breach, the City's right to require the immediate payment of all material obligations. OWNERSH I P AND USE OF PREMISES The City shall retain ownership of the park property upon which the Butterfly Garden stands and shall declare ownership of the Butterfly Garden upon its completion. For and in consideration of the conditions hereinafter stated, the FSPT will coordinate the on- going maintenance of the Butterfly Garden. The City and FSPT shall meet as necessary to discuss changes to the design of and plantings within the Butterfly Garden. No party make changes to the design or planting without the express written consent of all parties. The Premises shall remain part of a City -owned public park and therefore shall remain available and open to the 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 that are not native to MN, but are conducive to butterflies based on listing compiled by the UMN Extension, MN DNR or other recognized authority. • FSPT will follow the initial planting plan for the garden by establishing short plants along the front edge, medium height plants in the middle, and tall plants in the back. • The City will recognize that the Butterfly Garden was not intended to be a formal planting and will not have a highly manicured appearance. FSPT will remove non-native woody shrubs from east of the garden Notwithstanding the maintenance described above the FSPT shall make no alterations or capital improvements in or to said Premises without prior written consent of the City. The FSPT shall comply with all reasonable requests of the City and its agents concerning conditions of the Premises and its maintenance. In the event that the FSPT fails to maintain the Premises to the satisfaction of the City, the City reserves the right to facilitate the cleanup and/or maintenance deemed to be reasonably necessary. Before any remedial action is taken, the City will provide written notification of any unsatisfactory condition to the FSPT and allow either party reasonable time to correct the unsatisfactory condition. In the event that the City deems it necessary to take such remedial action, the FSPT shall be liable to the City for all costs incurred by the City in cleaning and/or maintaining the premises. The City will send a written invoice to FSPT at the address listed above, with payment terms enclosed. 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 materials within 30 days of giveing notice after which the City assumes all rights to the plant material and the future plans for the garden. REPRESENTATIONS AND WARRANTIES The City hereby represents and warrants that: 1. It has all necessary rights, licenses and authorization to carry out the terms of this Agreement; 2. It has full power and authority to enter into this Agreement and to make and perform its covenants, representations and undertakings contained herein; and 3. The individual who has signed this Agreement on behalf of the City has been duly authorized to do so. The FSPT hereby represents and warrants that: 1. It has all necessary rights, licenses and authorization to carry out the terms of this Agreement; 2. It has full power and authority to enter into this Agreement and to make and perform its covenants, representations 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 Il 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 -breaching party. Y01*.TOaJi1_11 V]R9 No party shall be liable to the other because of any failure to perform under this Agreement to the extent that such failure is caused by fire, earthquake, flood or any other acts of God, governmental regulations or restrictions, governmental taking, vandalism, strike, labor stoppage or any other cause or condition, whether similar or dissimilar to any foregoing, beyond the reasonable control of such party. Any termination under this section shall be withoutprejudice to the outstanding maintenance obligations of the parties accrued hereunder prior to the effective date of termination. RELATIONSHIP OF PARTIES Nothing herein contained shall be deemed to create any relationship of joint ventures, partners, principal and agent,or otherwise between the parties. No party shall have the right, or shall purport in any manner, to create any obligation on behalf of the otherparty, except as otherwise expressly described in this Agreement. NOTICES Any notices, requests, demands or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have 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 required performance. Neither this Agreement, nor any rights or obligations hereunder, may be assigned by any party without prior written consent of all other parties. The captions and paragraph headings used in this Agreement are for convenience of reference only, and shall not affect the construction or interpretation of this Agreement or any of the provisions hereof. This Agreement and all matters or disputes relating to the validity, construction, performance or enforcement hereof, shall be governed by and construed in accordance with the laws of the State of Minnesota. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original hereof, but all of which together shall constitute on and the same instrument. In the event of any dispute under or arising out of this Agreement, the prevailing party in such dispute shall be entitled to recover from the non -prevailing party or parties, in addition to any damages and/or other relief that may be awarded, its reasonable costs and expenses, including reasonable attorney's fees, incurred in connection with prosecuting or defending the subject dispute. This Agreement constitutes the 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 M 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 Mayor Witness FRIENDS OF SCANDIA PARKS AND TRAILS Witness 0 Date: Date: Date: Date: