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License Agreement with Cooperative Community Garden Club for Installation and Operation of Community GardenLICENSE AGREEMENT INSTALLATION AND OPERATION OF COMMUNITY GARDEN FOR ' NSE AGREEMENT FOR INSTALLATI NAND. OPERATION OF This LICE GARDEN is made and entered into this ~ ay of May, 2012 ("Effective COMMUNITY " n the Cit of Meridian, a municipal corporation organized under the laws Date ), by and betwee y of Idaho "Cit " and Meridian Cooperative Community Garden Club, an of the State ( y )~ ' r anized or anization whose address is 2183 E. Clarene, Meridian, Idaho informally o g g ("Licensee' . the Julius M. Kleiner Memorial Park Trust is developing a park on the WHEREAS, rner of Fairview and Ea le Roads, in Meridian, Idaho, identified as Ada County northeast co g 1104336005 which ark is to be named Julius M. Kleiner Memorial Park Parcel no. S p hereinafter "Park" and to be donated by the Trust to the City of Meridian; ( ) EREAS the res ective overning bodies of City and Licensee are mutually WH p g .. ' ed in enhancin the Meridian community's quality of life by providing and supporting interest g ' nin activities and benefits, including educational programming and cultivation community garde g of produce for local food banks; WHEREAS Cit wishes to ro ram approximately one half acre of ground on the Y p g eastern ed e of Park as a community garden (hereinafter "Community Garden"); g WHEREAS at its March 14, 2012 meeting, the Meridian Parks and Recreation ' commended that Cit enter into an agreement with Licensee for management and Commission re Y oversight services related to the Community Garden; and WHEREAS Cit wishes to establish, and to memorialize herein, the respective rights Y . and res onsibilities of City and Licensee with regard to the Community Garden; p NOW THEREFORE, for ood and valuable consideration, the receipt and sufficiency g ich is hereb acknowled ed and a reed, and in consideration of the mutual promises and of wh y g g nts herein contained and in consideration of the recitals above, which are incorporated covena herein, City and Licensee agree as follows: I. License ranted. U on Cit 's acceptance of ownership of Park, City shall, for value g p Y received from Licensee for services related to management and oversight of the Community Garden the recei t of which is hereby acknowledged, and other good and valuable p ., consideration rant to Licensee anon-exclusive license to utilize, maintain, and oversee ~g Communit Garden for the purposes, in the manner, subject to the limitations, and pursuant Y to the terms and conditions set forth in this Agreement. Use of Communi Garden. Licensee's use and occupancy of the Community Garden shall II. ty . be limited to ardening or small-scale crop farming operations by Licensee and/or its g members for the u oses, under the terms of membership, and in accordance with the p~ rovisions of the "Meridian Cooperative Garden Club Bylaws," attached hereto as Exhibit A. p LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 1 OF 9 ' ' anc shall not include the presence of livestock or animals; nor Licensee s use and occup y ' ' Licensee's artici ation in government or other agricultural programs or shall it include p p is water 'include exce t as ex ressly specified herein, any rights to minera , , grants, nor shall it p p ' duct. Licensee shall not use or permit the use of the Community oil, or other extractable pro ose other than ardenin or small-scale crop farming without the express Garden for any pure g g written consent of City. ' .The term of this license shall be from the Effective Date through 11:59 III. Term of license ember 31 2013 unless earlier terminated by either party by the method p.m. on Dec ' 'n. This license shall automatically be renewed from year to year thereafter established herei ' n notice of termination is iven by either party to the other at least thirty (30) unless writte g s before the ex iration of the initial license term or any renewed term thereof. day p ' nd res onsibilities of Licensee. With regard to Licensee's use and occupancy of IV. Rights a p . nit Garden under this A reement, Licensee shall be responsible for, and entitled the Commu y g to, each and all of the following rights and responsibilities. Produce. Licensee shall donate a substantial portion of all produce grown at Community A. Garden to the Meridian Food Bank. B. E ui ment• shed. Licensee may transport to, and store at Park, tools and equipment, • ~ p, ' ' ' Recreation includin a shed as approved by the Director of the Meridian Parks and g De artment "Director" or his designee. City shall allow the placement of such shed in p ( ) Park at a site selected b City in its sole discretion. Licensee shall secure the shed so as Y to revent criminal or destructive conduct in or to same. Licensee shall be solely p res onsible for an theft, vandalism, unlawful entry, arson, or other damages incurred to p Y the shed due to a breach of security. Licensee shall maintain the shed in a safe and sanitar manner and shall repair immediately any unsafe, insanitary, or unsightly Y conditions caused b the shed or items or materials stored therein. Licensee shall provide Y .. a ke to Cit for urposes of accessing the shed. In and for the purpose of maintaining Y Y p .. the Communit Garden, both City and Licensee may access the shed and utilize the Y donated and other tools and equipment stored therein. C. E ui ment. Exce t as otherwise established in this Agreement, any propertyand/or q p p e ui ment urchased or used by Licensee in Licensee's use and occupancy of the qp p Communit Garden under this Agreement, shall remain the property of the Licensee. Y D. Stora e. Licensee ma store roperty andlor equipment in the shed at the Community g Y p Garden for the term of this Agreement, so long as such storage complies with all a licable laws re ulations, and policies. Licensee shall move or remove any such pp ~ g ro ert andlor e ui ment within twenty-four (24) hours of City's request to do so. p p Y q p . Licensee shall be solel responsible for any personal property and equipment stored or . Y used b Licensee u on the Community Garden. Licensee shall not store any hazardous Y p or toxic substances as defined by applicable Federal or State laws and regulations upon Communit Garden without prior written notice to City. Said notice shall identify the Y substance to be used and the manner in which the substance is to be stored. City may LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 2 OF 9 of toxic substances. Licensee's failure to comply with refuse to consent to such storage , ' default b Licensee. Licensee shall indemnify and hold such a decision shall constitute a y , ' n claim liabilit ,loss, cost or expense, including but without City harmless from a y ~ Y rk b ' 'fees resultin from hazardous or toxic substances stored in Pa y limitation, attorneys g ' ve the ri ht to conduct inspections to determine if Licensee is Licensee. City shall ha g ro erl storing chemicals or other hazardous substances. p p Y ' e shall be res onsible for irrigating the Community Garden. City E. Irrigation. License p rden ' n increase or decrease of water usage or application in Community Ga may require a as may be necessary or reasonable under the circumstances. ontrol. burin the rowin season (approximately mid-April through F. Weed and pest c g g g ' Licensee shall be res onsible for weed and pest control within the planting mid-October), P f Communit Garden. Cit shall be responsible for weed and pest control area o y Y bout the remainder of Park and during the non-growing season (approximately throug id-October throu h mid-A ril .Licensee shall not utilize pesticides or herbicides, or m g p) allow such use, in Community Garden without notice to, and prior express written nt from Cit .Said notice shall identify the substance to be used, the area in which conse ~ Y and a lied the substance is to be used, the manner in which the substance is to be stored pp , and lans to dis ose of an excess. City may refuse to consent to such use of toxic p p y It b substances. Licensee's failure to comply with such a decision shall constitute a defau y icensee. All hazardous or toxic materials shall be used strictly in accordance with all L . a licable laws, rules and ordinances. Licensee shall not allow any hazardous or toxic pp substance into the air, round or water except insofar as allowed by said laws and g re ulations. Licensee shall also not cause or knowingly suffer any prohibited conduct as g such term is defined b a licable Federal or State law upon the Community Garden. Y pp Licensee shall indemnify and hold City harmless from any claim, liability, loss, cost or ex ense includin but without limitation, attorney's fees, resulting from hazardous or p g 11 have the toxic substances laced or used on Community Garden by Licensee. City sha p ' t to conduct ins ections to determine if Licensee is properly using and disposing of righ p chemicals and other hazardous substances. . Good husband .Licensee will utilize Community Garden in a manner that will best G rY conserve the inte rit and long-term beneficial use of Park and Community Garden. g Y H. Permits. No rovision of this Agreement shall relieve Licensee of its obligation to p ~ ermits obtain a Cit of Meridian Temporary Use Permit and/or any other applicable p Y re uired b Cit or an other governmental agency, where such requirement applies. q Y Y Y not be Exce t as otherwise allowed by City Code or other law, fees for such permits shall p waived. I. Use of Ci 's name and logo. City hereby allows Licensee to indicate on any ty .. romotional or fundraising materials that the City endorses Licensee s fundraising p activities undertaken in furtherance of its mission. City hereby conveys to Licensee ermission to use Cit 's name for purposes of advertising, marketing, and public P Y information, without violation of City's rights of privacy or any other rights City may LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 3 OF 9 ' reement rovided that Licensee shall not use City's logo for any possess under this Ag , p . 'bout the ex ress written permission of the Mayor's Executive Assistant. purpose wit p • • ' With the exce tion of activities directly related to gardening, J. Alterations, waste, signs. p ' e shall not make or ermit to be made, alterations on or to the Community License ~ p Garden or to Park, or any portion or component thereof, whether temporary or nt without first obtainin City's written consent. Any and all additions to, or permane g ' uni Garden shall become at once a part of the real property and alterations of, Comm ty 11 belon to Cit .Licensee shall not commit, permit nor suffer any damage to or sha g Y e u on or in Communit Garden, the premises of Park, or any of the improvements avast p Y r a urtenances situated or laced thereon by or on behalf of City or City's agents or ° pp p 11 not ' Exce t as ex ressl allowed by City in writing, Community Garden sha invitees. p p Y ure and Licensee shall not install or erect thereon signs, posts, poles, fencing, or feat , other improvements or structures. able use. Licensee shall em loy best efforts to ensure that its use of Community K. Reason p Garden land facilities amenities, and infrastructure is appropriate and reasonable. > > Where Licensee's use of same causes damage, Licensee shall reimburse City for the cost r ro ortionate cost of necessar repairs and/or replacement. Licensee shall exercise op p Y . best efforts to see that any and all of Licensee's uses of Community Garden are in com liance with all laws and with City's policies regarding use of City parksand/or p .. facilities includin but not limited to, such reasonable policies as maybe adopted or g~ enacted by Director. ' a Source of Contact for Licensee. Licensee shall provide City the name, a-mail L. Prim rY dress and tele hone number of the designated representative of Licensee (hereinafter ad p . "Licensee Contact" who shall serve as the primary contact between City and Licensee for all matters re arding the day-to-day scheduling, use, and maintenance of Community g Garden. M. Amendment of B laws. Licensee shall notify City within seven (7) days of amendment • ~ Y ent shall of Licensee s bylaws. Upon material amendment of such bylaws, this Agreem be voidable, at City's option. N. Liens. Licensee shall kee Park and Community Garden free from any liens arising out p of an work erformed for, materials furnished to, or obligations incurred by Licensee. Y p Licensee shall not ermit nor suffer any lien, judgment or encumbrance to be entered p a ainst or filed u on Community Garden or any improvements or fixtures thereon. g p Licensee hereb covenants to satisfy any such lien, judgment or encumbrance at • ~ Y it a ainst Licensee s sole and separate expense, and in all respects fully to indemnify C y g all dama es le al costs and charges, including attorney's fees reasonably incurred, in any g ~ g suit involvin an liens, claims, judgments or encumbrances cause or suffered by g Y Licensee with respect to the premises or any part thereof. 0. Surrender of ossession. Licensee agrees that upon termination or expiration of this P A reement for an reason, Licensee shall surrender Community Garden to City in the g Y LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 4 OF 9 same condition as on the Effective Date, reasonable wear and tear, act of God, act of nature or lama e b weather excepted. Licensee agrees to surrender possession and g Y f occu anc of the Community Garden and Park premises peaceably at the termination o p Y this Agreement and any renewal or extension thereof. P. Indemnification. Licensee specifically indemnifies City and holds City harmless from an loss, liability, claim, judgment, or action for damages or injury to Licensee, to Y Licensee's personal property or equipment, and to Licensee's employees, agents, or volunteers arisin out of or resulting from the condition of Community Garden or any g lack of maintenance or repair thereon, and not caused by or arising out of the tortious conduct of Cit or its em loyees. Licensee further agrees to indemnify and hold City Y p .. . harmless from any loss, liability, claim or action from damages or injuries to persons or ro ert in an wa arisin out of or resulting from the use of Community Garden by p p Y Y Y g . Licensee or b Licensee's em loyees, agents, volunteers, and invitees and not caused by Y p or arising out of the tortious conduct of City or its employees. . Worker's com ensation insurance. In the event Licensee hires any person to work on Q p or at the Community Garden, any and all workers shall be covered by worker s com ensation insurance, if applicable. In such event, Licensee shall provide to City a P certificate of insurance. R. Risk; insurance. Licensee may, at Licensee's option, maintain property or crop insurance on Communit Garden. City may, but shall not be obligated to, maintain Y . ro ert insurance on Community Garden. Licensee shall bear the risk of any theft, P p Y . vandalism unlawful entry, or other damages incurred to or in Community Garden. Licensee shall maintain Community Garden in a safe and sanitary condition and shall re air immediatel an unsafe or insanitary conditions caused by the Community Garden, p Y Y shed, or items, matter, or materials stored or located therein. S. Taxes. Licensee shall be solely responsible for the payment of taxes owed for any income realized as the result of activities undertaken pursuant or related to the Community Garden or to this Agreement. Admission. With Cit 's rior written consent, Licensee shall have right to assess and T. Y p collect reasonable fees from persons participating in activities conducted at Community Garden b Licensee. Licensee shall not charge any fee for public admission to Y Community Garden without the prior written consent of City. . Ri hts and res onsibilities of City. With regard to Licensee's use of the Community V g p Garden under this Agreement, City shall be responsible for the following. A Fence. Cit shall install a artial perimeter fence around Community Garden. Such ' y p the fence shall not exclude access to Community Garden by Licensee or any member of public. LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 5 OF 9 B. Irrigation infrastructure. City shall install irrigation infrastructure in Community Garden. for Licensee's use in watering the vegetation therein. C. Utilities. City shall pay for any power, water, or other utilities utilized or provided at Community Garden. D. Assessments; property taxes. City shall pay the regular assessments and property taxes, if any, due and owing on Community Garden andlor Park. E. Landscape maintenance. City shall be responsible for tree, turf, and landscape maintenance; mowing; custodial services; and hardscape cleaning and maintenance at Community Garden. Licensee shall not mow, spray, prune, or otherwise alter or maintain any natural or hardscape portion of Park. F. Scheduling. City shall be responsible for scheduling any and all uses of Community Garden and Park, including any and all uses thereof by Licensee. The parties hereto expressly acknowledge that Park is a public space, the management and scheduling of which shall at all times be within the sole purview of City. City shall have the right to use or allow the use of Park for any and all purposes and under any and all conditions, so long as such use does not conflict or interfere with scheduled use by Licensee. G. No right to exclude conveyed. Any exclusive use granted to Licensee by this Agreement shall include neither the right to exclude any law-abiding person from Community Garden, where such person is not interfering with Licensee's reserved use thereof, nor the right to interfere with any person's concurrent, lawful use of Community Garden or Park where such concurrent use does not conflict or interfere with Licensee's use. Except as otherwise set forth herein, Licensee shall be on an equal footing with the general public regarding its use of Community Garden and of Park, which shall include, but shall not be limited to, reservation requirements for Park facilities and payment of reservation and other applicable fees. Licensee shall exercise any exclusive use granted by this Agreement only in accordance with the terms of this Agreement and in accordance with any and all applicable laws and City policies. The parties hereto expressly acknowledge that Park is a public space, the management and scheduling of which shall at all times be within the sole purview of City. City shall have the right to use or allow the use of Park for any and all purposes and under any and all conditions H. Alterations. Upon thirty (30) days notice to Licensee in the manner established herein, City shall have the right to make alterations to Community Garden and/or to construct or locate landscaping, fixtures, structures, andlor any other improvements in or upon Community Garden or Park, except that City may undertake such alterations, construction, or improvements on an emergency or immediate basis without notice to Licensee where such action is necessary to protect the health, safety, andlor welfare of the public, or where such alterations, construction, or improvements will not unreasonably affect Licensee's use of Community Garden as set forth in this Agreement. LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 6 OF 9 I. Right of entry. City and City's contractors, employees, agents, and invitees, shall be authorized to, at all times, to enter the Community Garden and all storage areas for the purposes of inspection for compliance with the terms of this Agreement and for the exercise of City's rights hereunder, the posting of notices, and for all other lawful purposes. The parties shall supply each other with keys and any other instruments necessary to allow mutual entry onto the Community Garden and all storage areas. VI. General provisions. A. Acceptance as is. Licensee acknowledges that Licensee has inspected the Community Garden and does hereby accept the Community Garden as being in good and satisfactory order, condition, and repair. It is understood and agreed that City makes no warranty or promise as to the condition, safety, .usefulness or habitability of the Community Garden, and Licensee accept the Community Garden "as is." B. No agency. It is understood and agreed Licensee shall not be considered an agent of City in any manner or for any purpose whatsoever in Licensee's use and occupancy of Community Garden and/or any activity undertaken with regard to Community Garden, to Park, or to this Agreement. Neither Licensee nor any officer, employee or agent thereof shall be deemed an employee of City. Licensee shall have no authority or responsibility to exercise any rights or power vested in City. The selection and designation of the ersonnel of City in the performance of this agreement shall be made by City. p C. Breach; cure; termination. If Licensee is in breach or default of any of the terms, covenants or conditions of this Agreement and Licensee fails or refuses to cure such breach or default within three (3) days of written notice thereof, this Agreement, and all rights of Licensee in and to Community Garden, at City's option, maybe deemed terminated and forfeited without further notice or demand. In the event of any default or breach of this Agreement and Licensee's failure or refusal to cure as hereinbefore provided, City may enter into and upon the Community Garden, take possession thereof and expel Licensee therefrom, with or without process of law, and without being guilty of trespass, and without prejudice to any and all other rights and remedies City may have. In the event of termination of this Agreement, Licensee shall forfeit any right to harvest produce planted and any right to the proceeds thereof. Licensee shall be liable for any lama es and an costs, includin le al expenses and attorneys' fees, incurred by City in g Y g g recovering the Community Garden hereunder. In the event of termination, City shall provide Licensee with thirty (3 0) days to, at the time and manner as may reasonably be required by City, remove its tools, equipment, and shed from Park. If any tools, equipment, or the shed remain in Park following this period, such items shall be deemed abandoned and shall be owned by City. D. No waiver. City's waiver on one or more occasion of any breach or default of any term, covenant or condition of this Agreement shall not be construed as a waiver of any subsequent breach or default of the same or a different term, covenant or condition, nor shall such waiver operate to prejudice, waive, or affect any right or remedy City may LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 7 OF 9 ' reement with res ect to such subsequent default or breach by have under this Ag p Licensee. ' B the rantin of this lease, City does not in any way bar, obligate, E. No obligation. y g g ' r conve an warrant with regard to any action relating to development or limit, o y y y operation of Community Garden or Park. ' it for an reason whatsoever, cannot deliver possession of the said F. Possession. If C y, y ' rden to Licensee at the commencement of the said term, as hereinbefore Community Ga ' 'lease shall be voidable, and City shall not be liable to Licensee for any loss specified, this or damage resulting therefrom. . Licensee shall be liable to City for all damages and costs, including legal G. Attorney fees and attorne s' fees suffered or incurred by City in the enforcement of any of expenses y the terms, covenants or conditions of this Agreement. H. No assi nment. Licensee shall not assign, sublet, subcontract, or transfer its rights or g res onsibilities hereunder without the express written consent of City. Should Licensee p cease to exist as an or anization, this Agreement and all rights granted to Licensee g hereunder shall be void. Annual review. Between November 1 and December 31 of each year, Licensee and City I. shall to ether review the ear to address any problems which may have arisen and to g y ,.. discuss ossible Chan es to improve matters regarding the parties point use of p g Community Gar en. J. Conflict resolution. If either party believes that the other party is not fulfilling its obli ations as established b this Agreement, the complaining party shall give written g y ~ ' ' hin notice of its com laint to the other party. The party receiving the complaint shall, wit p fifteen 15 calendar da s, correct the situation and confirm the correction in writing, or O Y rej ect the complaint. K. Notices. All notices to be rovided under this Agreement shall be in writing and p addressed as follows: Licensee: Meridian Cooperative Garden Club Attn: Katie Gonzalez 2183 E. Clarene Meridian, Idaho 83646 City: City of Meridian Director, Parks and Recreation Department 33 East Broadway Meridian, Idaho 83642 LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 8 OF 9 ' in writin and either ersonally delivered or sent by U.S. mail, postage Notices shall be g p ' re uested to the art to be notified at the address specified above. prepaid, return receipt q p Y ' hall be deemed to have been given upon deposit in the U.S. mail, or upon Notice s ersonal delivery to the party above specified. p ' i A reement was ne otiated in Idaho, is entered into and is intended J. Choice of law. Th s g g ed in the State of Idaho. The Parties agree that the laws of Idaho shall to be perform govern the interpretation of this Agreement. K. Ci Council a royal required. This lease shall not be effective for any purpose ~ AA d b the whatsoever until it is a roved by the resolution of the City Council and execute y pp Mayor. ire a reement. This A reement contains the entire agreement of the parties and L. Ent g g . su ersedes an and all other agreements, leases, or understandings, oral or written, p Y whether revious to the execution hereof or contemporaneous herewith. p M. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of hereof as if the exhibits were set forth in their entirety herein. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their dul authorized officers to be effective as of the day and year first above written. y LICENSEE: ~o. -Katie Gonza z President, Meri Coop tive Garden Club CITY OF MERIDIAN: / ~_ BY: Tammy ~IVeerd, Mayor 0~~~~D A UC~ST o~ ~9 ~~~ ~~ City of E IDIAN lDAN st: ~~,~,, a~ ee o man, City Clerk ~~r f1p TRBA~~~~ LICENSE AGREEMENT WITH MERIDIAN COOPERATIVE GARDEN CLUB FOR COMMUNITY GARDEN PAGE 9 OF 9