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License and Indemnity Agreement with CESCO for Mini Heavy Equipment Rodeo Public Works Week ExpoTO: Mayor Tammy de Weerd Members of the City Council FROM: Austin Petersen, FIT — Transportation and Utility Coordinator Ashley Newbry, EIT — Staff Engineer DATE: May 14, 2014 SUBJECT: MINI HEAVY EQUIPMENT RODEO AGREEMENT WITH CESCO FOR PUBLIC WORKS WEEK EXPO 2014 I. RECOMMENDED ACTION A. Move to: 1. Approve the License and Indemnity Agreement with CESCO for the Mini Heavy Equipment Rodeo 2. Authorize the Mayor to sign the agreement. II. DEPARTMENT CONTACT PERSONS Austin Petersen, PW W Expo Chair 489-0352 Ashley Newbry, PWW Expo Sub -Chair 489-0385 Kyle Radek, Asst. City Engineer 489-0343 Warren Stewart, PW Engineering Manager 489-0350 Tom Barry, Director of Public Works 489-0372 III. DESCRIPTION A. Background For the past two years the Mini Heavy Equipment Rodeo has been a focal point of the Public Works Week Expo. This year, we are working primarily with CESCO to keep the tradition alive by having a Mini Heavy Equipment Rodeo at the Expo. Page 1 of 2 IV. IMPACT A. Strategic Impact: The City Hall east parking lot will be closed for the expo and the mini heavy equipment rodeo. The rodeo will take place in the center of the parking lot, and will be roped off using traffic cones and caution tape. The equipment will be live and operational, so it can be quickly moved, if necessary. B. Fiscal Impact: License and Indemnity Agreement $0.00 V. ALTERNATIVES A. The City could choose not to sign the License and Indemnity Agreement with CESCO; this will prevent the Mini Heavy Equipment Rodeo at City Hall. VI. TIME CONSTRAINTS Council's approval will allow for the timely return of the signed license agreement to CESCO. This will allow CESCO to prepare properly for the Mini Heavy Equipment Rodeo. VII. LIST OF ATTACHMENTS A. License and Indemnity Agreement (Rodeo) Approved for Council Agenda: Page 2 of 2 50 Date LICENSE AND INDEMNITY AGREEMENT with CESCO for the 2014 PUBLIC WORKS WEEK MINI HEAVY EQUIPMENT RODEO This LICENSE AND INDEMNITY AGREEMENT is made this _ day of, 2014 ("Effective Date"), by and between Contractor's Equipment Supply Co, dba CESCO, whose address is 2000 E. Overland Road, Meridian, Idaho (hereinafter "Licensee"), and the City of Meridian, Idaho, a municipal corporation organized under the laws of the State of Idaho (hereinafter "City"), whose address is 33 E. Broadway Ave., Meridian, Idaho. WHEREAS, City is hosting an event at the Meridian City Hall Plaza on June 4, 2014 to celebrate Public Works Week; and WHEREAS, as part of the Public Works Week celebration, Licensee is sponsoring a mini heavy equipment rodeo,activity in the City Hall east parking lot (referred to herein as the "Property"); and WHEREAS, the City of Meridian is willing to allow Licensee a limited license to use Property for this purpose; NOW THEREFORE, in consideration of the recitals and mutual covenants, agreements, and inducements contained herein, the parties hereby agree as follows: I. SCOPE OF LICENSE GRANTED BY CITY. A. Scope of use. Licensee's use and occupancy of the Property shall be limited to activities associated with the mini heavy equipment rodeo, specific activities include the following: B. Participant Waiver and Release Required. Licensee shall have each participant execute the "Release and Waiver of Liability Agreement" in form and content substantially similar to that set forth in Exhibit "A" attached hereto and incorporated herein. C. Term of license. The term of this Agreement shall be from 4 p.m, to 7 p.m. on June 4, 2014, along with sufficient time to set up and tear down immediately before and after the time period set forth herein. H. INDEMNIFICATION; INSURANCE. A. Indemnification. In consideration of Licensee's fee -free access to and use of Property, Licensee shall, and hereby does, indemnify and save and hold harmless City from and for any and all losses; claims; actions; judgments for damages; injury to its members, agents, invitees, volunteers, contractors, officials, officers, guests, employees, other persons, or property; and/or losses and expenses caused or incurred by Licensee and not caused by or arising out of the tortious conduct of City of Meridian. Licensee acknowledges that accessing or using Property LICENSE AND IDEARUTYAGREEMENT Pagel of 5 carries risks, some of which are unknown, and assumes these and any and all other known and unknown risks and hazards of such activity and any activity related thereto. Licensee forever waives and releases, on behalf of itself, its members, its agents, its employees, and their heirs, executors, administrators, assigns, and/or personal representatives, any and all claims and/or rights for damages Licensee and its members, agents, invitees, volunteers, contractors, officials, officers, guests, employees now has or may hereafter have against the City of Meridian and/or its employees, elected officials, agents, guests, and/or business invitees, suffered in connection with or arising out of Licensee's access to and use of City facilities and/or any activity related thereto and not caused by or arising out of the tortious conduct of the City of Meridian or its employees. B. No coverage provided. Licensee acknowledges that the City of Meridian shall not provide for Licensee or for its members, agents, invitees, volunteers, contractors, officials, officers, guests, employees, any insurance or coverage of any kind, whether financial, medical, property, or otherwise, for any accidents, injuries, deaths, illnesses, losses, or damages that result during or arise out of Licensee's actions or omissions hereunder and/or any activity related thereto. C. Licensee to maintain insurance. Licensee shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, and upon each and every occasion on which Licensee uses the Property hereunder, liability insurance in which the City of Meridian shall be named additional insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless City, and if City becomes liable for an amount in excess of the insurance limits herein provided, Licensee covenants and agrees to indemnify and save and hold harmless City from and for any and all such losses, claims, actions, or judgments for damages or liability to persons or property. Licensee shall provide City with a Certificate of Insurance or other proof of insurance evidencing Licensee's compliance with the requirements of this paragraph and shall file such proof of insurance with the City Clerk. In the event the insurance minimums of the Idaho Tort Claims Act are changed, Licensee shall immediately submit proof of compliance with the changed limits. D. Waiver. Licensee and its members, agents, invitees, volunteers, contractors, officials, officers, guests, employees waive any and all claims and recourse against City, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to Licensee's use of City's Property, whether such loss or damage may be attributable to known or unknown conditions, except for liability caused by or arising out of the tortious conduct of the City of Meridian or its employees. E. As -is condition. The City makes no warranty or promise as to the condition, safety, usefulness, or habitability of the premises of the Property; Licensee accepts same as -is, both at the effective date of this agreement and at the time and for the purpose of each event and activity specified herein. F. Good faith. Licensee will utilize the Property in a manner that will best conserve the current condition of the Property. LICENSE AND IDEAINITYAGREEMENT Page 2 of 5 III. GENERAL PROVISIONS. A. Alterations, improvement to real property. Licensee shall not make, or permit to be made, alterations to or improvements to Property without first obtaining City's written consent. B. Relationship of Parties. Licensee and its members, agents, invitees, volunteers, contractors, officials, officers, guests, and employees are not independent contractors nor employees, agents, joint venturers, or partners of City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Licensee and City or any official, agent, or employee of City; or between any of Licensee's members, agents, invitees, volunteers, contractors, officials, officers, guests, employees, and the City or any official, agent, or employee of City. C. Termination, If, through any cause, Licensee fails to comply with the terms of this Agreement, violates any of the covenants, agreements, and/or stipulations of this Agreement, or of any other applicable law, ordinance, regulation, or policy, and/or engages in fraud, dishonesty, or any other act of misconduct in the performance of this Agreement, City may immediately terminate this Agreement without the necessity of providing written notice to Licensee of such termination. Notice of for -cause termination shall be effective immediately upon verbal notification 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 have under this Agreement with respect to such subsequent default or breach by Licensee. E. Notices. Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed communicated when mailed by United States Mail, certified, return receipt requested, addressed as follows: City: City of Meridian Public Works Department Attn: David Allison 33 E. Broadway Avenue Meridian, Idaho 83642 Licensee: CESCO 2000 E. Overland Road Boise, Idaho 83642 Either party may change its address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. F. Compliance; no discrimination. In undertaking activities under or related to this Agreement, Licensee shall comply in all respects with all applicable laws, ordinances, regulations, policies, agreements, and requirements, including, but not limited to, the CUP, and further shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. LICENSE AND IDEMNITPAGREEMENT Page 3 of 5 G. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. H. Advice of attorney. Each party warrants and represents that in executing this Agreement, it has received independent legal advice from its attorney and/or has received the opportunity to seek such advice. I. Applicable law. The laws of the State of Idaho shall govern the validity, interpretation, performance and enforcement of this Agreement. Venue shall be in the courts of Ada County, Idaho. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers to be effective as of the day and year first above written. LICENSEE CESCO Mark C. Canfield President CITY OF MERIDIAN: Tammy de rd, Mayor LICENSE AND IDE DVITYAGREEIIENT Page 4 of 2000 E. Overland Rd. Mardian, ID 83842 2082888-3337 I fax 2082888-3088 w .oescoequipxom Meridian • Jerome Liability Release Form Name of Business or Organization: Contractors Equipment Supply Comoanv (CESCO) and The City of Meridian Activity or Event: City of Meridian Public Works Exposition Equipment Rodeo Participant's Name (Printed) I understand that participation in the above Activity or Event may be hazardous for the above-named participant. In signing below, I assume risk of harm or injury which may occur to the participant as a result of participating in the above-named event or activity. I hereby release CESCO and the City of Meridian, and its officers, employees, or agents from any liability, costs and damages resulting this individual's participation. If the participant is a minor: I agree that the minor has my consent to participate in the event or activity. I also give my consent for the business or organization to seek emergency treatment for the minor if necessary, and I agree to accept financial responsibility for the costs related to this emergency treatment. Participant's signature / Date Name of Parent or Guardian Signature of Parent/Guardian / Date