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HomeMy WebLinkAboutKona Food Truck Luaus OEEP 2015WIN—— I THIS OUTDOOR ENrERTAINMENT EVENT AGREEM[ENT ("Agreement") is made and entered into on this day of _!3�U_—, 2015, by and between the CITY OF CA -PE CANAVERAL, a Florida Municipal Corporation ("City"), and DOUG TROVILLION, an individual, d/b/a Kona Food Truck Luaus ("Contractor"). WITNESSETH: WHEREAS, Contractor oversees the operation of several Food Truck Events conducted in and around Brevard County; and WHEREAS, Contractor has been successful in bringing communities together to celebrate quality gout -met foods sold at Food Truck Events and in providing a place where communities can congregate; and WHERE AS, the City of Cape Canaveral desires to permit Contractor to organize and oversee a monthly Food Truck Event in Cape Canaveral on City property in order to provide a community gathering place and a cultural attraction for residents and visitors of the City; and WHEREAS, section 10-46 of the City Code authorizes the City to enter into contracts for the conduct of outdoor entertainment events that promote economic development or a cultural attraction or event for residents and visitors of the City; and W)REREAS, the City Council believes that a monthly Food Truck Event conducted on City property in a central location will attract residents and visitors and will mutually benefit the well -.being of the residents, visitors and the City alike; and WHEREAS, Contractor represents and warrants that it has the personnel, tools, materials and experience to put on a quality Food Truck Event as set, forth herein. NOW THEREFORE, in consideration of the provisions contained in this Agreement, and other good and valuable consideration in which the parties acknowledge, the parties agree as follows - 1.0 Incorporation of Recitals: The f6regoing recitals are true and correct and by this reference are fully incorporated into this Agreement, a) "Advertise" shall mean the act. of publicly announcing or calling attention to the Food Truck Event and may include, but not be limited to, the distribution of handbills or inass mailing, the use of outdoor advertising and announcements by billboard, poster, radio, television or newspapers. b) "Agreemera" shall rnean this Cape Canaveral Food TruckEvent Outdoor Entertainment Event Agreement and a.11 exhibits and addendums hereto between the City and Contractor, Page I of 9 c) "City" shall mean the City of Cape Canaveral, a Florida Municipal Corporation, its employees, agents and contractors. d) "City Council" shall mean the City Council of the City of Cape Canaveral, Florida. e) "City Manager" shall mean the City Manager of the City of Cape Canaveral, Florida, or the City Manager's designee, f) "Food Truck Event" shall mean the monthly, open-air event, known as the "Cape Canaveral Street Eats", located at the City's Recreation Cornplex and conducted by Contractor in cooperation with the City pursuant to the terms and conditions set forth in this Agreement, The Food Truck Event shall be planned, promoted, managed and operated by Contractor pursuant to this Agreement. g) "Leisure Services Director" shall mean the City of Cape Canaveral's Leisure Services Director or designee, h) "Contractor" shall mean Doug Trovillion, an individual, d/b/a "Kona Food Truck Luaus," and his employees, agents and contractors, i) "Recreation Complex" shall mean the City's real property located at 7300 N. Atlantic Avenue in Cape Canaveral, J) "Public Records" is as described in Chapter 119, Florida Statutes, as may be amended. I Iffur related to the Food Truck Event. 31 Location and Hours of Operation. The Food Truck Event shall be permitted to operate at the Recreation Complex one (1) day a, month, said day being inutually agreed upon by both parties hereto, between the hours of 5:00 PM and 9:00 PM. Set up and tear down activity related to the Food Truck Event shall be permitted for two (2) hours prior to the start and one (1) hour following the conclusion of each Food Truck Event. The City reserves the right to cancel the Food Truck Event for any particular month in the event the City requires the Recreation Complex for the operation of another special event. The City shall provide written notice of any such cancellation to Contractor in writing at least ten (10) days in advance. 12 Consideration. in consideration of Contractor's use of City property and the City pen-nitting of the Food Truck Event, Contractor agrees to pay the City fifty dollars ($50) for each truck participating in each respective Food Truck Event. The Contractor's own food truck shall not be counted as part of the overall fees due to the City. Each month following the conclusion of the Food Truck Event, Contractor shall provide the City with a roster of each vendor that participated in that month's Food Truck Event, the booth rental fee for each vendor and the City's share of the booth rental fees, Payment shall become due and owing to the City no later than seven (7) days following each Food Truck Event. The City reserves the right to cancel any Food Truck Event without notice to Contractor for nonpayment. Contractor shaH not be subject to the outdoor entertainment permit fee. Page 2 of 9 3.3 Vendor Booths,- �Ue Plan. The Food Truck Event shall be set up in the Recreation Complex area according to the site plan attached hereto as Exhibit "A", fully incorporated herein by this reference. Conti -actor shall be responsible for providing any staging materials necessary to effectively produce the Food Truck Event including, but not limited to, tables, chairs and tents, 3A Vendors. Contractor shall be responsible for retaining reputable vendors for the Food Tru Event. Vendors shall generally be chosen on a "first corne, first served" basis. In no event sh any vendor be discriminated against based on race, gender, age, religion, national orig' ethnicity, marital status, pregnancy, disability, veteran status and/or any other legally protect.] characteristic. If more than the maximum number of vendors desire to participate in the Fo Truck Event in any given month, Contractor shall establish a waiting list and shall schedule t vendors to participate in the Food Truck Event using a rotating schedule. 3.5 Authorized Vendors., 3.5.1 Food Truck Vendors shall possess all Federal, State and Local permits required to conduct a cominercial food truck operation. 3.53 The City shall not be responsible for and makes no express or implied warranties of fitness or merchantability as to the items sold at the Food Truck Event. 3.6 Clean -zip. Contractor shall be responsible for the coordination of clean-up and disposal of debris at. the Recreation Complex grounds and its immediate vicinity caused by the Food Tru Event.. The Leisure Services Director and Contractor shall perform a walk-through of Recreation Complex grounds prior to the commencement of the first Food Track Event in ord to inspect. its condition and any clean-up activity shall return the Recreation Complex to i original or better condition. I 3.7 Event &affing. Contractor shall hire and schedule all personnel/labor deemed necessary to run the operation of the Food Truck Event, including labor for set tip, tear -down, clean -Lip staff and security personnel in addition to the police and fire personnel possibly required by the City. 3.8 Advertising. Contractor shall advertise tile Food Truck Event as is customary to promote other events similar in size and scope. 3.9 Contraclors. Contractor may employ as many contractors or assistants as it deems appropriate and necessary to perfonn its respective services required hereunder. However, Contractor shall be solely responsible for the payment of its respective contractors or assistants, including responsibility for their acts and omissions, wages, fees, applicable income taxes, applicable workers' compensation insurance and expenses. 3. 1 O.Permits. Conti -actor shall obtain all Local, State, and Federal permits necessary to hold the Food Truck Event. The City agrees to cooperate with the issuance of all permits, and will use its best and reasonable efforts to support any permit application submitted in furtherance of this Agreement. 3.1 ]City Outdoor Entertainment Fvent Ordinance. Contractor acknowledges and understands that the City's Outdoor Entertainment Event Ordinance stiall apply to the conduct of the Food Truck Event. unless otherwise modified by the terms of this Agreement. Contractor shall submit one (1) Z�C Outdoor- Entertainment Event Permit Application which, following review and approval by the City Manager, shall authorize the Food Truck Event to be conducted monthly for a period of one (1) year from date of issuance or until tennination of this Agreement, whichever occurs first, The City reserves the right to amend or modify the terms and conditions of the Outdoor Entertainment Event Permit at any time if the City believes that such amendment or modification is in the best interests of the health, safety and welfare of the citizens of the City and patrons of the Food Truck Event. 4�O Duty to Cooperate; Further Assurances. From and after the Effective Date of this Agreement, the parties hereto shall have a duty to cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. In furtherance thereof, Contractor agrees to keep the Leisure Services Director fully informed of its respective perfon-nance hereunder and its respective responsibilities to manage, promote and operate the Food Truck Event so that the City can reasonably satisfy its obligations under this Agreement and reasonably address those issues which the City believes should be addressed in the interests of the public health, safety and welfare related to the Food Truck Event. 5.0 Dispute Resolution. Disputes regarding any terms or conditions of this Agreement which cannot be resolved within a reasonable time by the Leisure Services Director and Contractor shall be decided by the City Manager at such time at least one party declares an impasse in writing to the City Manager, Upon impasse, the City Manager shall promptly decide the impasse issue in writing mid shall distribute the written decision to the Leisure Services Director and to Contractor's representative. All such decisions shall be final. 6.0 D �s u� a sat n the availability of materials and labor, the cost thereo permits and the steps necessary to complete tile servjee ts unto the City that it has the competence and abilities to carefully, professionally and faithfully complete the services in the manner and within the time limits set forth herein. Contractor will perform the services with due and reasonable diligence consistent with sound professional and labor practices. 7.0 No Assignment. This Agreement shall not be assigned or transferred without the express written consent of the City, 8.0 Third Party lughts. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behal f of any third parties. 9.0 Legal Representation. The parties acknowledge that Anthony A. Garganese, Esquire, of Brown, Garganese, Weiss & D'Agresta, P.A., and the other attorneys therein, have acted as counsel for City in connection with this Agreement and the transactians contemplated herein, and have not given legal advice to any party hereto other than City. 10.0Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. I LOGoverning Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive State court jurisdiction shall be in the trial courts located in Brevard County, Florida, and exclusive Federal court jurisdiction shaH be in Orlando, Florida, any objections as to jurisdiction or venue in such courts being expressly waived. zm� 12.OAtterney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties al] reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post -judgment collection proceedings, 13.ONon-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 14.ONotices. Any notice, in writing and shall be deetned given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City: City Manager City of Cape Canaveral P.O. Box 326 Cape Canaveral, Florida 32920 PH: (321) 868-1220 To Contractor: Doug Trovillion d/b/a Kona Food Truck Luaus P.O. Box 1420 Winter I -lark, FL 32790 Pit: (321) 229-25 85 15.000unterpazIs. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original; but such Counterparts shall together constitute but one and the same instrument, 16.OPubflc Records, In accordance with section 119.0701, Florida Statutes, Contractor agrees that, all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical forni, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided. by the City Pursuant to this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Contractor agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Contractor also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Contractor shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, Contractor shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Contractor upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically inUSt be provided to the City in a format that is compatible with the information technology systems of the City, If'Contractor does not comply with a public records request, the City shall have the right to enforce the provisions of this Paragraph. In the event that Contractor fails to comply with the provisions of this Paragraph, and the ,�ity is,required to enforce the provisions of this Paragraph, or the City suffers a third party award of Page 5 of 9 attorney's fees and/or damages for violating the provisions of Chapter 119, Florida Statutes due to Contractor's failure to comply with the provisions of this Paragraph, the City shall be entitled to collect from Conti -actor prevailing party attorney's fees and costs, and any damages incurred by tile City, for enforcing this Paragraph against Contractor, And, if applicable, the City shall also be entitled to reimbursement of any and all attorney's fees and damages which the City was required to pay a third party because of Contractor's failure to comply with the provisions of this Paragraph, This Paragraph shall survive the termination of this Agreement, 17.0interpretation. The parties have participated in the drafting of all parts of this Agreement, and have each had an opportunity to review this Agreement with legal counsel. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. I&OIndependent Contractor. Contractor shall be considered an independent contractor under this Agreement. 19.OEntire Agreement, This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 20.OSovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under State or Federal law. As such, the City shall not be liable under this Agreernent.for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any clairn or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000,00), or any claim ot-judgment, or portion thereof, which, when totaled with all other claims orjudgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the stun of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement, 21.OGeneral Liability Insurance. For all services performed hereunder, Contractor shall purchase and maintain, at its own expense, such general liability insurance, to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the services performed under this Agreement, The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence cotribined single limiit for bodily injury liability, property damage liability, with no deductible. .All insurance coverage shall be with insurer(s) approved by the City's risk manager and licensed by the State of Florida to engage in the business of writing of insurance, The City shall be narned on the foregoing insurance policies as "additional insured". Contractor shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in eflect pursuant hereto, the expiration dates of such policies and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. Contractor shall also provide copies of all policies, along with the insurance certi f icates and endorsements to the City no later than thirty (30) days before the Food Truck Event, If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by Contractor in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify Contractor in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. For all services performed pursuant to this Agreement and during the Food Truck Event, Contractor shall continuously maintain such insurance in the amounts, type and quality as required by this paragraph. 22.01ndernuffication and Hold Harmless, For all services performed pursuant to this Agreement, Contractor a,4recs, to the fullest extent permitted by law, to indemnil�y mid hold harmless the City and its Page 6 of 9 employees, officers and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liabilit*includin adminn-istrative, trial, post judgment and appellate proceedings), directly or indirectly arising 6m the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from their respective: (i) performance of services pursuant to this Agreement; (ii) failure to property train employees under their control or direction; (iii) failure to remit any Local, State, and Federal taxes due by them as a result of the Food Truck Event; and (iv) failure to properly plan, promote, manage and operate the Food Truck Event. The indemnification provided above shall obligate the in . demnifying party to defend at its own expense or to provide for such defense at the sole o 23.OStandard of Care. in performiqq its services hereunder, C ordinarily exercised, under similar circurnstances by reputable members of its profession practicing in the same or similar locality. 24-OContractor's Signatory. The undersigned person executing this Agreement on behalf of each party hereby represents and warrants that he/she has the full authority to sign this Agreement and to fully bind their principal to the ternis and conditions set forth in this Agreement. 25.OEffective Date. This, Agreement shall become effective upon full execution by both parties hereto. The Agreement shall not be effective against any party until said date, 26.OTerni. This Agreement, with the exception of the indemnification and insurance provisions, which shall survive termination of this Agreement, shall terminate one (1) year from the Effective Date. The City and Contractor may mutually agree to extend the term of this Agreementfor additional one-year periods. Any such extension shall only be by written addendum to this Agreement. 2TOTermination. This Agreement rnay be terminated by either party hereto for any reason and without penalty upon 30 days written notice to the other party, M WITNESS WHERFOF, the parties hereto have executed this agreement on the day and year first written above. Page 7 of 9 [EXECUTION PAGE FOLLOWS] R�l THE CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation. By: David L. Greene,di anag-1 AITEST: T City Clerk By: -�-PZ _!�.gel!. Apper, P14 61 STATE OF FLORIDA COUNTY OF BREVARD Tte foregoing instrument was acknowledged before me this day of tA, 2011, by' as of DO'UG _dN, _anindivi� TROVILLI ual d/b/a`lkon �Food �Tru__ck_'_L_ua_u's, who is - produced personally known to me or -ifi ' ident on. (NOTARY SEAL) Leann T Dillon (Notary Public Si 'nature) State of Florida My COMMISSION # FF77762 Page 8 of 9 Exp0o; Jentlaw 23, 2018 'AJ (DOL/ (Print Narne) Notary Public, State of t Commission No.: '-2- , -/ 4,,,7 2 My Commission Expires:_,(/ ll�