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HomeMy WebLinkAboutItem 06.lMay 28, 2015 Item No. APPROVAL OF VENDING AGREEMENT WITH JONNYPOPS Proposed Action Staff recommends adoption of the following motion: Move to approve JonnyPops mobile ice cream vending at Antlers Park. Overview Staff has been working with JonnyPops to offer a mobile ice cream vending option at Antlers Park each Saturday & Sunday from June 13, 2015 – August 30, 2015, from 11am – 5pm, weather permitting. JonnyPops has been vending for customers for four years, and worked at over two thousand different events throughout the metro area. JonnyPops flavors will include strawberry, raspberry/ blueberry, chocolate/ coffee, coconut/ pineapple, and are 1 for $3 or 2 for $5. Primary Issues to Consider None Supporting Information JonnyPops Agreement _________________________ Brett Altergott Parks & Recreation Director 181943v1 1 AGREEMENT AGREEMENT made this 1st day of June, 2015, by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation ("City") and JONNY POPS LLC, a Minnesota limited liability company ("Vendor"). IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES AGREE AS FOLLOWS: 1.CONTRACT DOCUMENTS. The Contract consists of the following documents: A. This Agreement; B. Vendor’s Proposal: Mobile Food and Beverage Vending Antlers Park (“Proposal”); C. Vendor’s Operational Plan, Antlers Park, including attachments. In the event of conflict among the provisions of the Contract Documents, the order in which they are listed above shall control in resolving any such conflicts, with Contract Document "A” having the first priority and Contract Document "C" having the last priority. 2.LEASE. The City leases to Vendor on a non-exclusive basis property at Antlers Park to use the property in accordance with the Contract Documents during June, July, and August of 2015. Vendor leases the property on an “AS IS” basis. Vendor agrees to keep the property neat and orderly and to pick up and litter and to prevent any waste, loss or damage to the property. 3.COMPENSATION. Vendor shall pay the City 10% of Vendor’s gross receipts from sales. Vendor shall maintain complete and accurate records of its receipts and shall provide the City a copy of the records monthly with its payment to the City. Vendor shall make payment to the City on a monthly basis. 4. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, Vendor shall obtain all necessary permits and shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of authorized sales including any rules concerning the use of City property that the City may from time to time impose. 5. STANDARD OF CARE. Vendor shall exercise the same degrees of care, skill, and diligence in the performance of the services as is ordinarily possessed and exercised by a Vendor under similar circumstances. Vendor shall keep the City property free of all refuse, garbage, litter and abandoned property. Vendor shall repair or replace any City property damaged by vendor, its employees or customers. 6. INDEMNIFICATION. Vendor shall indemnify and hold harmless the City, its officers, agents, and employees, of and from any and all claims, demands, actions, causes of action, including costs and attorney's fees, arising out of or by reason of the execution or performance of the work or services provided for herein and further agrees to defend at its sole cost and expense any 181943v1 2 action or proceeding commenced for the purpose of asserting any claim of whatsoever character arising hereunder. 7. INSURANCE. Vendor shall secure and maintain such insurance as will protect Vendor from claims under the Worker's Compensation Acts, automobile liability, and from claims for bodily injury, death, or property damage which may arise from the performance of services under this Agreement. Such insurance shall be written for amounts not less than: Commercial General Liability $1,000,000 each occurrence/aggregate The City shall be named as an additional insured on a primary and noncontributory basis on the commercial general liability policy. Before commencing work, Vendor shall provide the City a certificate of insurance evidencing the required insurance coverage in a form acceptable to City. 8. INDEPENDENT. Vendor is not an employee of the City and is free to contract with others. Vendor shall be responsible for selecting the means and methods of performing the work. Vendor shall furnish any and all supplies, equipment, and incidentals necessary for Vendor's performance under this Agreement. City and Vendor agree that Vendor shall not at any time or in any manner represent that Vendor or any of Vendor's agents or employees are in any manner agents or employees of the City. Vendor shall be exclusively responsible under this Agreement for Vendor's own FICA payments, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. 9. ASSIGNMENT. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. 10. WAIVER. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 11. ENTIRE AGREEMENT. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 12. CONTROLLING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Dakota County. 13. COPYRIGHT. Vendor shall defend actions or claims charging infringement of any copyright or patent by reason of the use or adoption of any designs, drawings or specifications supplied by it, and it shall hold harmless the City from loss or damage resulting there from. 181943v1 3 14. PATENTED DEVICES, MATERIALS AND PROCESSES. If the contract requires, or Vendor desires, the use of any design, devise, material or process covered by letters, patent or copyright, trademark or trade name, Vendor shall provide for such use by suitable legal agreement with the patentee or owner and a copy of said agreement shall be filed with the City. If no such agreement is made or filed as noted, Vendor shall indemnify and hold harmless the City from any and all claims for infringement by reason of the use of any such patented designed, device, material or process, or any trademark or trade name or copyright in connection with the services agreed to be performed under the contract, and shall indemnify and defend the City for any costs, liability, expenses and attorney's fees that result from any such infringement. 15. RECORDS. Vendor shall maintain complete and accurate records of time and expense involved in the performance of services. 16. MINNESOTA GOVERNMENT DATA PRACTICES ACT. Vendor must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by Vendor pursuant to this Agreement. Vendor is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes §13.08, as if it were a government entity. In the event Vendor receives a request to release data, Vendor must immediately notify City. City will give Vendor instructions concerning the release of the data to the requesting party before the data is released. Vendor agrees to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from Vendor’s officers’, agents’, city’s, partners’, employees’, volunteers’ or assignees’ unlawful disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. 17. TERMINATION OF THE AGREEMENT. The City may terminate this Agreement or any part thereof at any time, upon written notice to Vendor, effective upon delivery including delivery by facsimile or email. Dated: __________________, 2015. CITY OF LAKEVILLE BY: _______________________________________ Matt Little, Mayor AND Charlene Friedges, City Clerk Dated: __________________, 2015. JONNY POPS, LLC BY: Name:_______________________________ Title:_______________________ EXHIBIT "A"