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HomeMy WebLinkAboutHendry - Farmers Market 2-23-12 CAPE CANAVERAL FARMERS MARKET OUTDOOR ENTERTAINMENT EVENT AGREEMENT THIS OUTDOOR ENTERTAINMENT EVENT AGRE ( "Agreement ") is made and entered into on this 23rd day of February , 201 , y and between the CITY OF CAPE CANAVERAL, a Florida Municipal Corporation ( "City"), and RICHARD HENDRY, an individual, d/b /a Brevard Farmers Markets ( "Contractor "). WITNESSETH: WHEREAS, Contractor oversees the operation of several Farmers Markets conducted in and around Brevard County; and 1 WHEREAS, Contractor has been successful in bringing communities together to celebrate the quality homegrown goods and other items sold at Farmers Markets and in providing a place where communities can congregate; and 1 1 WHEREAS, the City of Cape Canaveral desires to permit Contractor to organize and oversee a weekly Farmers Market 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 Y h' 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 WHEREAS, the City Council believes that a weekly Farmers Market conducted on City property in a central location will attract residents and visitors and will mutually benefit the wellbeing 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 Farmers Market 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 foregoing recitals are true and correct and by this reference are fully incorporated into this Agreement. 2.0 Definitions: a) "Advertise" shall mean the act of publicly announcing or calling attention to the Farmers Market and may include, but not be limited to, the distribution of 1 handbills or mass mailing, the use of outdoor advertising and announcements by billboard, poster, radio, television or newspapers. Page 1 of 9 1 b) "Agreement" shall mean this Cape Canaveral Farmers Market Outdoor Entertainment Event Agreement and all exhibits and addendums hereto between the City and Contractor. 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, 1 Florida, or the City Manager's designee. f) "Farmers Market" shall mean the weekly, open -air event, known as the "Cape Canaveral Farmers Market," located at the City's Recreation Complex and conducted by Contractor in cooperation with the City pursuant to the terms and 1 conditions set forth in this Agreement. The Farmers Market shall be planned, promoted, managed and operated by Contractor pursuant to this Agreement. 1 g) "Leisure Services Director" shall mean the City of Cape Canaveral's Leisure 1 Services Director or designee. h) "Contractor" shall mean Richard Hendry, an individual, d/b /a "Brevard Farmers Markets," and his employees, agents, and contractors. 1 i) "Recreation Complex" shall mean the City's real property located at 7300 N. Atlantic Avenue in Cape Canaveral. 1 1 j) "Public Records" is as described in Chapter 119, Florida Statutes, as may be amended. 3.0 Terms and Conditions of Farmers Market. Contractor agrees to Advertise, produce, plan, promote, manage and operate the Farmers Market in cooperation with the City and under the special operating conditions set forth herein. In furtherance thereof, Contractor agrees to keep the Leisure Services Director fully informed of its plan to promote, manage, and operate the Farmers Market so the City can reasonably satisfy its obligations under this Agreement and reasonably address issues of public health, safety, and welfare related to the Farmers Market. 3.1 Location and Hours of Operation. The Farmers Market shall be permitted to operate 1 at the Recreation Complex one (1) day each week, said day being mutually agreed upon by both parties hereto, between the hours of 9:00 AM and 4:00 PM. Set up and tear down activity related to the Farmers Market shall be permitted for two (2) hours prior to the start and two (2) hours following the conclusion of each Farmers Market. The City reserves the right to cancel the Farmers Market for any particular week in I 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. Page 2 of 9 i 1 3.2 Consideration. In consideration of Contractor's use of City property and the City permitting of the Farmer's Market, Contractor agrees to pay the City thirty percent (30%) of all booth rental fees imposed by Contractor upon the Farmers Market vendor participants. Each week following the conclusion of the Farmers Market, 1 Contractor shall provide the City with a roster of each vendor that participated in that week's Farmers Market, 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 Farmers Market. The City reserves the right to cancel any Farmers Market without notice to Contractor for nonpayment. Contractor shall not be subject to the outdoor entertainment permit fee. i 1 3.3 Vendor Booths; Site Plan. The Farmers Market shall be limited to a maximum of 13 vendor booths approximately ten feet by ten feet (10' x 10') in size, which shall be set up at the Recreation Complex according to the site plan attached hereto as Exhibit "A," fully incorporated herein by this reference. Contractor shall be responsible for providing any staging materials necessary to effectively produce the Farmers Market including, but not limited to, tables, chairs, and tents. 3.4 Vendors. Contractor shall be responsible for retaining reputable vendors for the Farmers Market. Vendors shall generally be chosen on a "first come, first served" basis. In no event shall any vendor be discriminated against based on race, gender, age, religion, national origin, ethnicity, marital status, pregnancy, disability, veteran status, and/or any other legally protected characteristic. If more than the maximum number of vendors desire to participate in the Farmers Market in any given week, Contractor shall establish a waiting list and shall schedule the vendors to participate in the Fanners Market using a rotating schedule. 3.5 Authorized Vendor Merchandise. 3.5.1 Farmers Market merchandise shall consist of quality homegrown products, including, but not limited to, fresh produce, flowers, plants, baked goods, honey, maple syrup, jam, jelly, herbs, and handmade soap and body care items. Vendors shall only sell items they themselves have grown, produced, or processed. Merchandise may also include original handmade arts and crafts items. Manufactured, mass - produced, wholesale, rummage, second -hand or thrift -type merchandise shall be strictly prohibited. 3.5.2 Any dispute which may arise between the parties regarding whether certain merchandise is authorized to be sold at the Farmers Market shall be subject to the Dispute Resolution procedure set forth in section 5.0 of this Agreement. 3.5.3 The City shall not be responsible for and makes no express or implied warranties of fitness or merchantability as to the merchandise sold at the 1 Farmers Market. Page 3 of 9 3.6 Clean up. Contractor shall be responsible for the coordination of clean up and disposal of any debris at the Recreation Complex grounds and its immediate vicinity caused by the Farmers Market. The Leisure Services Director and Contractor shall perform a walk - through of the Recreation Complex grounds prior to the commencement of each Farmers Market in order to inspect its condition and any clean up activity shall return the Recreation Complex to its original or better condition. 3.7 Event Staffing. Contractor shall hire and schedule all personnel/labor deemed necessary to run the operation of the Farmers Market, including labor for setup, tear - down, clean-up staff and security personnel in addition to the police and fire personnel possibly required by the City. 3.8 Advertising. Contractor shall advertise the Farmers Market as is customary to promote other events similar in size and scope. 3.9 Contractors. Contractor may employ as many contractors or assistants as it deems appropriate and necessary to perform its respective services required hereunder. However, Contractor shall be solely responsible for the payment of their respective contractors or assistants, including responsibility for their acts and omissions, wages, fees, applicable income taxes, applicable worker's compensation insurance, and expenses. 3.10Permits. Contractor shall obtain all local, state, and federal permits necessary to hold the Farmers Market. 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. 3.11 City Outdoor Entertainment Event Ordinance. Contractor acknowledges and understands that the City's Outdoor Entertainment Event Ordinance shall apply to the conduct of the Fanners Market unless otherwise modified by the terms of this Agreement. Contractor shall submit one (1) outdoor entertainment event permit application which, following review and approval by the City Manager, shall authorize the Farmers Market to be conducted weekly for a period of one (1) year from date of issuance or until termination 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 Farmers Market. 4.0 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 performance hereunder and its respective responsibilities to manage, promote, and operate the Fanners Market so that the City can reasonably satisfy its obligations under this Agreement and reasonably address those issues which the City believes should be Page 4 of 9 addressed in the interests of the public health, safety, and welfare related to the Farmers Market. 5.0 Dispute Resolution. Disputes regarding any terms or conditions of this Agreement which can not 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 and shall distribute the written decision to the Leisure Services Director and to Contractor's representative. All such decisions shall be final. 6.0 Due Diligence. Contractor acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, and the steps necessary to complete the services within the time set forth herein. Contractor warrants 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 Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf 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 transactions 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. 11.0Governing 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 shall be in Orlando, Florida, any objections as to jurisdiction or venue in such courts being expressly waived. 12.0Attornev'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 all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. Page5of9 1 13.0Non- 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. 14.0Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed 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 -1230 To Contractor: Richard Hendry d/b /a Brevard Farmers Markets 2391 Sarno Rd. Melbourne, FL 32935 PH: (321) 917 -0721 15.0Counterparts. 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. 16.0Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or videotape, photograph, or other writing of Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, Contractor shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during normal business hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 17.0lnterpretation. 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. 18.0lndependent Contractor. Contractor shall be considered an independent contractor under this Agreement. Page 6 of 9 1 19.0Entire 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. 20.0Soverei2n 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 Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 21.0General 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 combined single limit 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 named 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 effect 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 certificates and endorsements to the City no later than thirty (30) days before Farmers Market. 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 Farmers Market, Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 22.0lndemnification and Hold Harmless. For all services performed pursuant to this Agreement, Contractor agrees, to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from 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 properly train employees Page7of9 1 under their control or direction; (iii) failure to remit any local, state, and federal taxes due by them as a result of the Farmers Market; and (iv) failure to properly plan, promote, manage, and operate the Farmers Market. The indemnification provided above shall obligate the indemnifying party to defend at its own expense or to provide for such defense, at the sole option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may result from the services under this Agreement whether the services be performed by the indemnifying party or anyone directly or indirectly employed or hired by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are reasonable. This paragraph shall survive termination of this Agreement. 23.0Standard of Care. In performing its services hereunder, Contractor shall use the degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. 24.0Contractor'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 terms and conditions set forth in this Agreement. 25.0Effective Date. This Agreement shall become effective upon full execution by both parties hereto and upon the City Council's adoption of Ordinance 15 -2011. The Agreement shall not be effective against any party until said date. 26.0Term. 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 Agreement for additional one -year periods. Any such extension shall only be by written addendum to this Agreement. 27.0Termination. This Agreement may be terminated by either party hereto for any reason and without penalty upon 30 days written notice to the other party. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first written above. [EXECUTION PAGE FOLLOWS] Page 8 of 9 li 1 CITY: THE CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation. By 6 7 1 - 1". .r... David L. Greene, City Manager Date: SIX 3 / / 2 - ATTEST: By: C lux �� Dips gela Apper , ity Clerk CONTRACTOR: RICHARD HENDRY, an individual, d/b /a Brevard Farmers Markets. Richard Hendry Date: 2 — 2 / Z- 1 STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument s acknowledged before me this Z 3 day of fi k - 44-7,e // , 204, by , cNAB5h 1 Q - )a/i/ , as , / of RICHARD HENDRY, an individu d/b /a Brevard Fa Markets, who is personally known to me or produced FLeA / / ›.4- /).-, 2" e S as idntification. (NOTARY SEAL) 4FAPP Q- /`t (Notary Publi • ig atom) Ar , ,,.ayP�,, , MIA GOFORTH 1 2227/7' 7e/ , 7 Z / 4 9 e `o . Notary Public - State of Florida (Print Name) L © �� • ' • i My Comm. Expires May 16, 2013 � Notary Public, State of s;"., -- . v ;= Commission # DD 853695 — f ''''E,pp",° Bonded Through National Notary Assn. ■ Commission No , 3 , 9 S My Commission Expires: 57/6 / 2 i 3 Page 9 of 9 ii