8 - Farmer's Market Agreement Earth Learning revised AFARMER'S MARKET AGREEMENT
This Agreement is entered into on this ____ day of ____________, between the City of South Miami, a municipal corporation ("City") and Earth Learning, Inc.
(“Earth Learning”), collectively referred to as the Parties ("Parties")
WHEREAS, the City is desirous of having an open air farmer's market ("Market"); and
WHEREAS, the City desires
to engage and retain the services of EARTH LEARNING to develop, establish, and manage the Market at City Hall, 6130 Sunset Drive, South Miami, FL 33143;
THEREFORE the parties hereby
agree to the following terms and conditions:
EARTH LEARNING shall develop, produce, and manage the Market and recruiting vendors.
The Market days shall be Saturday and Sunday of
each week and the Market’s hours of operation shall be from 9:00 a.m. until 2:00 p.m. The Market shall commence setting up for business no earlier than 7:00 a.m. and the entire Market,
including, but not limited to, all merchandise, tables, chairs, tents and debris shall be removed from the Market location no later than 3:00 p.m. of each market day. EARTH LEARNING
shall leave the site and the Market area in clean condition and the market site shall be returned to its original condition as it was found at7:00 a.m. of that same day.
EARTH LEARNING
may shall either provide port-a-toilets, or use the bathrooms at City Hall, provided it makes arrangements, a week in advance of such use, with the City Manager and pay for the cost
of the maintenance of the bathrooms at City Hall and it shall hire an off duty City police officer to patrol the inside of City Hall during such use or find some other alternative means
of providing such facilities. If EARTH LEARNING chooses not to pay for the cost of using the City Hall bathrooms, these facilities shall be off limits to the Market, its vendors and
customers. If the Market chooses to provide for the temporary installation of port-a-toilets, the location shall be designated by the City Manager and the port-a-toilets shall be in
place and operational by 7:00 a.m. on Saturday and the port-a-toilets shall be removed on Sunday by 3:00 p.m.
EARTH LEARNING shall pay the City $25.00 each month to reimburse the
City for the use of the City’s electricity, water, and associated administrative overhead. shall, at its expense, install a permanent power pole in order to provide electricity to the
Market and the number of power poles and their locations shall be approved by the City Manager. The installation of the power pole shall comply with all city, county and state codes.
The electrical service shall be ordered by and billed directly to EARTH LEARNING.
EARTH LEARNING shall comply with the City’s insurance requirements that are enumerated on the attached
Exhibit A and it shall sign the City’s indemnification agreement in the same form as is required for special events. EARTH LEARNING shall comply with all safety requirements that are
dictated by the City Manager or the City’s Human Resource Director.
EARTH LEARNING may place two temporary signs advertising the market provided the signs and their placement are approved
by the City Manager, the City's Planning and Zoning Department and its Public Works Departments. The signs shall be provided by EARTH LEARNING at its own expense and shall be set in
place by the operator every week during market hours provided the location and the manner of their placement does not harm City property and provided it is approved by the City's Planning
and Zoning Department and its Public Works Departments. The signs shall not be erected unless their temporary installation can be accomplished without causing the City to incur any direct
expense.
EARTH LEARNING shall provide the City with ten (10) spots for citizens and/or employees for any training conducted by EARTH LEARNING, assuming that it has 35 or more slots available.
The City resolves to provide advertising and to support the Market in the following manner, provided it does not cause the City to make any direct payment to anyone and provided the
indirect cost to the City is de minimus:
The City shall allow the installation of a banner, advertising the market, to span Sunset Drive east of US 1 for a period of one month, during
the summer, commencing on June 1 and one month, during the fall, commencing on November 1, provided the location and the manner of placement of the banner is approved by the City Manager,
the City's Planning and Zoning Department and its Public Works Departments. The City shall also allow the installation of a banner over Sunset Drive at 5995 Sunset Drive during the
period February 16th through March 2 in order to promote the Market. EARTH LEARNING shall provide the banner and reimburse the City for the staff costs for erecting and taking down
the banners.
The City shall list the weekly market on the calendar of events on the City's webpage.
From June 1, 20121 through September October 301, 20121, during market hours, the
market may close the driveway/parking area that runs from the street entrance to City Hall, nearest the library, to the rear of City Hall and that is between City Hall and the library,
for placement of market stall (“the Summer Market Site”). The Summer Market Site is limited to the driveway and parking area, as defined by the hash marked area depicted in the sketch
of an aerial view of City Hall that is attached as Exhibit B-1 to this Agreement. This space shall not include the driveway and parking spaces on the library side of this parking area.
From June 1, 2012 through September 30, 2012,June 1, 2011 through October 31, 2011, the City shall forgive lost revenue on the nine parking meters located in the Summer Market Site
for the time on Saturdays when the market occupies the driveway and parking spaces in question.
EARTH LEARNING shall erect a wooden barricade, to the satisfaction of the City Manager,
to block traffic from entering the Summer Market Site, at either end of the driveway/parking area occupied by the Market. Neither the market nor the barricade shall block, to any degree,
the passage of vehicles moving along the library side of the parking area from the rear of City Hall to Sunset Drive.
From OctoberNovember 1, 2011 through May 31, 20121, the market
shall only occupy the driveway and parking spaces adjacent to side entrance to City Hall and the front entrance to the Sylva Martin Building that face Sunset Drive (“Winter Market Site”).
The Winter Market Site is marked with hash marks on Exhibit B-2. EARTH LEARNING shall erect a wooden barricade, to the satisfaction of the City Manager, at either end of the driveway
and parking area designated for the Winter Market Site as marked on Exhibit B-2.
City shall provide the Market with the following:
Pre-approved permit(s) for large tents, if needed;
Access
to external water and electricity, provided it does not require any modifications to the existing locations;
At the City's discretion it may provide certain marketing and/or advertising.
Rec
ycling and garbage bins and access to dumpster, should the dumpster become overflowed due to the Market's use it is the responsibility of EARTH LEARNING to acquire additional
dumpsters to satisfy the additional utilization.
Market Management: The management of the Market is the responsibility of EARTH LEARNING who shall employ a Market Manager who will be responsible for the day-to-day operation of the
Market. EARTH LEARNING is responsible for monitoring the Market Manager's performance and has sole discretion in the hiring, retention, and termination the Market Manager. EARTH LEARNING
is responsible for all actions taken and decisions made by the Market Manager.
Vendors: EARTH LEARNING mayshall provide the following vendors, which shall include locally produced sustainably-grown
fruits, vegetables, and value-added food products (at least 2 year-round, with additional value-added food products during the vegetable growing season):
Prepared food vendors (minimum
of four [4])
Local artisans and sustainably-produced crafts (minimum of six [6])
Native and edible plant supplies and services (minimum of one [1])
Green/appropriate technology vendors
(minimum of one [1])
Community-based/educational organizations (minimum of two [2])
City Green Task Force presence (at the discretion of the City; one [1] tent)
City residents: back
yard fruits and vegetables, local food vendors, neighborhood initiatives (one [1] tent at no cost to the city)
Permitted market items: Fresh produce, plant items, flowers, baked goods,
jellies, jams, preserves, and other non commercial food items, described below, may be sold. Cooking and food preparation (as described below as "Prepared foods") will be allowed on-site
but must conform to all applicable laws and regulations. Artisan crafts (as described below) and green products and services may be allowed at the sole discretion of EARTH LEARNING.
Displays of public interest, such as nutritional, health or consumer information, may be displayed at the sole discretion of EARTH LEARNING.
Fruits, vegetables, mushrooms, flowers,
value-added:
Very local (25 miles), organically grown;
Local (150 miles), organically grown;
Southeast U.S., organically grown;
Local (150 miles) conventionally grown (non GMO).
Artisan
Crafts:
Local, hand-made with sustainably harvested raw materials;
Other locals hand-made items with sustainably harvested raw materials;
Prepared foods:
Use local, organically-grown
produce, meats, and dairy products (non-factory farmed);
Use organically-grown produce, meats, and dairy products (non-factory-farmed);
Use conventional produce meats, and dairy products
(non-factory-farmed).
Procedure: All policies and procedures will be submitted to and approved by the City Manager fifteen (15) days prior to the Market's commencement. Any modifications
to the policies must be submitted to and approved by the City Manager fifteen (15) days prior to its effect. All Market Vendor Agreements shall conform to this Agreement whenever possible.
Market
fees: The fees are set forth in the fee schedule that has been marked as Appendix 1 and attached to this Agreement.
Sales tax collection: EARTH LEARNING shall ensure that all vendors
conducting business in the Market are informed that the vendors are responsible for their own sales tax collection and submission to the State of Florida.
Display prices, licenses, product
inspections, weights, measures, and pesticides rules: EARTH LEARNING is solely responsible for developing and writing policies related to display of prices, licenses, products inspection
certificates, weights, measures, and pesticide disclosures. EARTH LEARNING shall provide each vendor with a copy of the policies prior to the vendor commencing work
at the Market. Vendors are required and responsible for obtaining and properly displaying all permits required by Federal, State, County, and City laws. EARTH LEARNING is required to
ensure that all vendors are properly licensed, and all information properly displayed as required by law.
Reporting of accident: EARTH LEARNING shall develop and apply a Standard Operating
Procedure requiring vendors to report any and all injury or damage that occurs at the Market to the Market Manager. The Market Manager shall compile an accident report log and submit
a copy of the log to the City Manager's Office within 3 working days after an injury or damage has occurred. If no incidents or accidents occurred a negative report shall be delivered
to the City Manager’s office three (3) days following the end of each Market weekend. Each log must be signed by the Market Manager stipulating that he/she reviewed the log.
Prohibited
activities: Any activity not specifically authorized by this agreement is not authorized. Should EARTH LEARNING wish to add an activity that is not specifically included in this agreement,
then a letter describing the activity must be submitted to the City Manager for approval. The City Manager is the sole authorized representative of the City that may approve or deny
any additional activity for the Market.
Violations by vendors: It shall be the responsibility of EARTH LEARNING to address any and all violations of this agreement by vendors. It is
the sole responsibility of EARTH LEARNING to deal with vendor(s) who are in violation of EARTH LEARNING policies and procedures. EARTH LEARNING is responsible for enforcing the Market
rules and it is the responsibility of EARTH LEARNING to ensure that vendors abide by the approved rules.
Live animals: The sale of live animals is expressly prohibited. Animals may be
brought to the market on occasion for educational purposes and any pet that is brought to the market must be on a leash or properly carried in a specialized pet container or transporter.
Vendor
parking: All vendor trucks and/or trailers must be unloaded and parked off-site before the Market opens. Vendors are responsible for finding and paying for their own parking.
Investments
in infrastructure: The City, at its sole discretion, may develop the Market as a premier South Florida green event and destination. EARTH LEARNING shall diligently seek to develop
a Market infrastructure with outside funding. EARTH LEARNING shall collaborate with the City to find investors for needed Market infrastructure including a stage, bathroom facilities,
utilities hook-up and large tents for vendors.
Programming: EARTH LEARNING, in collaboration with the City and the Green Task Force, will develop programming in order to build community
awareness by engaging audiences in workshops, dialog, healing arts, and participatory activities. EARTH LEARNING will meet with the Green Task Force regularly for coordination. EARTH
LEARNING understands that the Green Task Force is an advisory committee and that it does not have any authority to approve or deny any modification to this agreement.
Advertising: EARTH
LEARNING will explore the development of an online social networking site with the City in order to build further community awareness of the Market as well as other potential EARTH LEARNING
/City collaborative initiatives.
Agreement Termination: Either party may terminate this agreement with 60 days written notice.
Notice: Any notice, demand, offer or other written instrument
required or permitted to be given, made or sent (hereinafter referred to as “Notice”) shall be in writing, signed by the party giving or making it and shall be sent by facsimile transmission,
e-mail, courier, Federal Express, and any other means that provides for proof of delivery. The Notice shall be sent to the facsimile telephone number, e-mail address, street address
or post office box as set forth herein below and hereinafter referred to as a “Party’s Address” for the purposes of this paragraph. Refusal to accept delivery or failure to pick-up
a Notice within ten (10) after the first notification by the delivery service is sent (“First Notification”),
shall be construed as receipt of same. The parties shall have the right to change the place to which the Notice shall be sent to them by giving Notice as required for all other Notices
and sent to all of the parties to this Agreement. The date of delivery of the Notice, the date of refusal to accept delivery or the date following 10 days from the date of First Notification
shall be deemed to be the date of the offer, demand, notice or other writing for the purpose of enforcing this Agreement and it shall be effective from that date.
To City: Hector Mirabile,
Ph. D.
(or the then current manager)
6130 Sunset Drive
South Miami, FL 33143-5093
With a copy to: Thomas F. Pepe, Esq.
(or the ten current City Attorney)
6130 Sunset Drive
South
Miami, FL 33143-5093
Maria M. Menendez, CMC
(or the then current City Clerk)
6130 Sunset Drive
South Miami, FL 33143-5093
To Earth Learning, Inc.: [Insert Name and address]
Amendment:
No amendment or modification of this Agreement shall be valid unless in writing and duly executed by the parties affected by the amendment or modification.
Waiver: Any waiver of any
breach of any provision of this Agreement or changes to this agreement by either party must be made in written form, signed by both parties, and shall not be considered as or constitute
a continuing waiver of any other breach of the same or similar matter or any other provision of this Agreement.
Severability: In the event that any portion of this Agreement is illegal
or unenforceable, it shall affect no other provisions of this Agreement, and the remainder of this Agreement shall be valid and enforceable in accordance with its terms.
Assignment:
Neither this Agreement nor any rights under this Agreement may be assigned by either party.
Record Keeping: EARTH LEARNING shall maintain accurate and complete records detailing all
parking fees collected, parking violations issued, parking enforcement, staff hours and claims arising out of its performance of this Agreement including the basis therefore and the
amount thereof. EARTH LEARNING shall provide copies of all such records to the CITY at the end of each fiscal year and shall allow the CITY and its representatives to examine, review
and audit any and all such records, books, and other documents upon request at any time during the period commencing with the execution of this Agreement and ending two (2) years following
the expiration or termination of this Agreement.
Time of the Essence: Time shall be of the essence with regard to all action to be taken under the terms of this Agreement and no extension
of time shall be allowed unless the extension of time is provided for in a writing signed by the City.
No Remedy Exclusive: No remedy conferred upon or reserved to any party hereto,
or existing at law or in equity, shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time
as often as may be deemed expedient. In order to entitle any party to exercise any remedy reserved to it in this Agreement, or existing in law or in equity, it shall not be necessary
to give notice, other than such notice as maybe herein expressly required.
Restriction on Modification: This agreement contains the entire agreement of the parties and no modification
or amendment of any terms or provisions of this agreement shall be valid or binding unless it complies with this paragraph. This agreement in general and this paragraph in particular,
shall not be modified, amended or waived except in writing signed by both parties. This agreement shall be binding upon the heirs, guardians, personal representatives and assigns of
both of the parties.
Waiver: No act or omission or verbal representation or statement shall be treated as an expressed or implied waiver and all waivers shall be in writing signed by
the party who is alleged to have waived any of the terms and/or conditions of this Agreement. This Agreement contains the entire understanding of the parties and no modification or amendment
of any terms or provisions of this Agreement shall be valid or binding unless it complies with this paragraph. This Agreement in general and this paragraph in particular, shall not
be modified, amended or waived except in writing signed by both parties. The waiver of any breach or default of any of the terms of this Agreement shall not act as a waiver of any subsequent
breach or default.
Waiver of Jury Trial: The parties to this Agreement knowingly, irrevocably voluntarily and intentionally waive any right either may have to a trial by jury in State
or Federal Court proceedings in respect to any action, proceeding, lawsuit or counterclaim arising out of this Agreement.
Law to be Applied and Venue: This agreement shall be subject
to and shall be construed under the laws of the State of Florida and in the event that this agreement is enforced, it shall be enforced by a court of competent jurisdiction in Miami-Dade
County, Florida.
Validity of Executed Copies: This agreement may be executed in several counterparts, each of which may be construed as an original.
Rules of Interpretation: Throughout
this agreement the male pronoun may be substituted for female and neuter and the singular words substituted for plural and plural words substituted for singular wherever applicable.
Restriction
on Corporate Purchase of Stock: EARTH LEARNING shall not have a right to change its majority stock owners without the approval of the City or the termination of this Agreement.
Third
Parties: Nothing contained herein shall indicate intent to benefit any third persons who are not signatories to this Agreement.
Severability: If any provision of this agreement is
illegal, invalid or against public policy, the remainder of this agreement shall not be affected thereby and shall remain in full force and effect.
Limitation on Headings: Any heading
preceding the text of the paragraphs of this agreement are inserted solely for the convenience of reference and shall not constitute a part of this agreement nor shall they affect its
meaning, construction or effect.
Attorney's Fees: In the event that any legal action or arbitration is necessary to enforce any of the provisions of this agreement, then and in that
event, the prevailing party shall have the right to recover reasonable attorney`s fees and costs incurred and said fee shall be assessed against the non-prevailing party. Attorney`s
fees shall be determined by the judge who has jurisdiction over the arbitration or litigation and shall be taxed at a post trial motion. The term legal action shall include all appellate
review.
Effective Date: The parties agree that this Agreement shall take effect on the date first above written.
IN WITNESS WHEREOF, the parties have hereinafter set their hand and seals on the date set forth herein below, in three (3) counterparts, each of which shall, without proof or accounting
for the other counterpart, be deemed an original Contract.
EARTH LEARNING, INC.
WITNESSES
Signature:
Name:
Title:
ATTEST:
OWNER: CITY OF SOUTH
MIAMI
Signature:
Signature:
Maria M. Menendez, CMC
Hector Mirabile, PhD
City Clerk
City Manager
READ AND APPROVED AS TO FORM
LANGUAGE, LEGALITY AND EXECUTION
THEREOF:
Signature: __________________________
Thomas Pepe, Esq.
City Attorney