25F - AGMT - NATIVE PLANT NURSERY

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DO NOT RECORD j. BTN will maintain the nursery facilities in a safe and clean condition, order and repair, including paying at its own cost and expense for custodial services. 4. City Responsibilities. a. City shall pay for all utility services furnished to the nursery for the use, operation and maintenance of the nursery during the Term of this Agreement, or any extension thereof, including paying for all charges for heat, gas/water, trash, electricity charges used during the term of this agreement. BTN will be responsible for payment of other utilities not listed herein, including payment of telephone and cable charges. b. City will be responsible for the maintenance of all Park areas excluding the nursery as set forth in Section c. In the event of damage, destruction or vandalism by third parties of any of the premises, the City will contribute to the repair and restoration as provided in section 9 of this agreement. 5. BTN's Equipment and Personal Property. BTN shall hold title only to BTN's equipment or personal property, but not plant material, placed on the Facilities by BTN. All of BTN's equipment or personal property shall remain the property of BTN and are not fixtures. BTN has the right to remove all of BTN's equipment or personal property at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a professional and careful manner, without interference or damage to any other equipment, structures or operations on the Premises, including the use of the Premises by City or any of City's, assignees, licensees or lessees. 6. Facility Alterations. BTN agrees all changes or modifications to any of the Premises require prior written approval of the Executive Director of Parks, Recreation and Community Services. All requests for such changes or modifications shall be submitted by BTN to City by utilizing its current Field/Facility Modification Request process, and City reserves the right to approve or deny such requests. A copy of the City's current Field/Facility Modification Request process form is attached hereto as Exhibit 2. 7. Indemnification, Defense Hold Harmless. BTN shall protect, defend, indemnify and save and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with BTN's performance of this Agreement or BTN's failure to comply with any of BTN's obligations contained in the Agreement by BTN, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of 25F-5