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HomeMy WebLinkAbout2011-353 ED - Luna Pops, LLC for PFAP facility use NORTH CAROLINA Equipment Installation Agreement ORANGE COUNTY This Equipment Installation Agreement (hereinafter "Agreement") for the installation of equipment in and on the premises of the Piedmont Foods and Agricultural Processing Center (hereinafter "PFAPC") is made and entered into this 03 day of November, 2011, between Luna Pops LLC (hereinafter"User") and Orange County (hereinafter the "County"). THAT WHEREAS the County owns certain property known as the Piedmont Foods and Agricultural Processing Center located in Hillsborough, North Carolina and operates said property for governmental services; and WHEREAS the PFAPC contains a commercial food preparation and processing equipment and space; and WHEREAS the County and User entered into a User Agreement dated 06 day of October, 2011, (hereinafter the"User Agreement"), for the use of the PFAPC; and WHEREAS the County's currently installed equipment is inadequate to fully serve the needs of User; and WHEREAS User desires to install equipment within the PFAPC for the specific purpose of furthering User's food preparation and processing. NOW, THEREFORE,the parties hereby agree as follows: 1. Obligations of the County. a) Allow User to install equipment needed to further User's needs in food preparation and processing. b) Provide heating, air conditioning, and general utilities. c) Provide adequate access to the PFAPC facility to allow User to install approved equipment in an approved location. Installation time at the discretion of the PFAPC manager. 2. Obligations of User. a) User shall document fully herein in Section 5 all equipment (hereinafter the "Equipment")to be installed by User. b) User shall abide by the PFAPC manager's determination of an acceptable time and location to install approved equipment. c) User is solely responsible for all costs, fees, and expenses associated with the installation and un-installation of the Equipment and/or the costs, fees and expenses associated with the installation or un-installation of any other equipment that may be affected by the Equipment. 1 d) User is solely responsible for all maintenance, operations and repair of the Equipment and all costs associated therewith. e) User shall be responsible for ensuring that the equipment is properly secured, stored, locked or inaccessible to other users of the PFAPC when not being used by the User. f) Upon the termination of this Agreement and/or the User Agreement, User shall remove all installed Equipment at User's cost within ten (10) days of the date of the termination of this Agreement and/or the User Agreement. The Equipment shall not be used, engaged, turned on, or otherwise accessed for any purpose other than un- installation after the termination of this Agreement or the User Agreement. g) Ensure that the Equipment does not impact other areas of the PFAPC facilities and if User is notified of such effects, promptly correct same. h) Reimburse County promptly for any damage caused to PFAPC facilities or equipment, including but not limited to furniture, kitchen furnishings and/or utilities, computers and other equipment, where such damage is caused by User, its Equipment, agents or employees or third parties. 3. Facility Use Guidelines. By this Agreement, the County authorizes the use of the PFAPC by User only to the extent permitted by this Agreement and by the User Agreement. The County does not incur any liability to User or any member of the public for permitting use of County property under this agreement and User agrees to defend, indemnify and hold harmless the County from and against any and all claims related to User's use of PFAPC facilities. User will abide by County policies while on County property. Smoking is prohibited; no visitor shall be permitted under any circumstances to use tobacco products in or on the grounds of any County property. The use of open flames, gambling and alcoholic beverages are also prohibited. Absolutely no weapons of any kind are allowed on the premises. 4. Insurance Requirements. User shall at all times maintain liability insurance as provided in the User Agreement. 5. Equipment. Only the following Equipment is approved for installation: A) Fisher 1000 (FP 1000)popsicle chilling unit a. Approved location : Mixed Use Room,Northern wall B) DZTR15 a. Approved location : West outside of building C) None 2 a. Approved location : NA D) None a. Approved location : NA 6. Indemnification and Release. User shall indemnify, defend and hold harmless County, its agents, and employees, from and against all claims, actions, demands, costs, injuries (including death), damages, losses and/or expenses of any kind whatsoever, in whole or in part, resulting from or connected with any acts of User, its agents or employees or third parties using the equipment without authorization, and/or the installation, un-installation, maintenance, repair or operation of the Equipment and from the omission or commission of any act, lawful or unlawful, by User, its agents and/or employees, and/or third parties using the equipment without authorization, including but not limited to court costs, insurance and attorney and/or legal fees incurred by County in connection with the defense of said matters. In exchange for good and valuable consideration, the receipt of which is hereby acknowledged, User hereby forever releases, discharges, acquits and forgives County, its agents and employees, from any and all claims, actions, suits, demands, agreements, liabilities,judgments, and proceedings both at law and in equity which User now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting from: The acts of User, its agents or employees related to the performance of this Agreement or the User Agreement and/or the installation, un-installation, maintenance, repair or operation of the Equipment. This General Release shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. 7. Rental Rate and Administrative Fees. A fee of seventy five dollars ($75)per month shall apply for the placement of the Equipment. User shall pay such fee monthly. A fee of thirty five dollars ($35)per month shall apply for the estimated energy and/or utility usage of the Equipment. User shall pay such fee monthly. All other standard fees and costs shall apply. Failure to un-install and remove the Equipment according to the provisions of this Agreement shall result in a one-time rental fee of one thousand dollars ($1000). If,thirty(30) days after termination of this agreement, User has not removed and un-installed the Equipment the 3 Equipment becomes the property of County and County may dispose of the Equipment by any lawful method. 8. Termination and Renewal. This Agreement may be terminated by mutual written agreement of the Parties hereto. At any time, County may terminate this agreement immediately and without prior notice if County determines in its sole discretion that the health, safety or well-being of County employees, guests, customers, or invitees or the operations of the PFAPC are jeopardized by the installation, un-installation, operation, maintenance or presence of User's Equipment at the PFAPC. 9. Contract Modifications. This contract may be amended only by written amendments duly executed by and between both parties. 10. North Carolina Law. North Carolina law will govern the interpretation and construction of the Contract. 11. Entire Agreement and Conflict. This Agreement constitutes and expresses the entire agreement and understanding between the parties concerning the subject matter of this contract. This document and any other document incorporated in this Agreement by reference supersede all prior and contemporaneous discussions, promises, representations, agreements and understandings relative to the subject matter of this Agreement. This Agreement does not terminate or supersede the User Agreement. Should any term or provision of this Agreement conflict with the provisions of the User Agreement the terms and provisions of the User Agreement shall control. 12. Severability. If any provision of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. SIGNATURE PAGE TO FOLLOW 4 Signers for User and the County certify that they are authorized to enter this Agreement. ORANG O NT USE By: R: B Y• Coun Printed Name and Pitle PIEDMONT FOOD &AGRICULTURAL PROCESSING CENTER By: Matthew oybal, Mana This instrument h een aPTr9yed as to technical content. Steve rantley, Department Di t r / This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act./ ' ef,24 4'.W Office of the Finance Director This in ent has been approved as to form and legal sufficiency. Office of the 41niy Attorney 5