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HomeMy WebLinkAbout2011-388 ED - Fickle Creek Farm for Piedmont Food and Agriculture Processing Center facility use Piedmont Food & Agricultural Processing Center User Services ContraCt This person or organization joins this Agreement as User of the Piedmont Food& Agricultural Processing Center commercial kitchen faci ity. Full Legal Name of User:Fickle Creek Farm Legal Status of User(Check One): ❑Individual ee"Partnership ❑Corporation ❑Limited Liability Company ❑Other Name Authorized Representative:Ben Ber mann Title:Farm Manager Mailing Address:4122 Buckhorn Rd,Efland,NC Email:ficklecreek@gmail.com 27243 Telephone:414-304-6287 Fax:None This User Services Agreement made and entered into this the 15"'day of December 2011, ("Effective Date") between the User(identified above) and Piedmont Food&Agricultural Processing Center(also referred to here as"PFAP"). User and PFAP agree to the following terms: 1. SERVICES.PFAP will provide User with nonexclusive access to and use of PFAP's commercial food production facility("Kitchen"), subject to the terms of this Agreement. a. Facility. The Kitchen is a shared-use facility, equipped with commercial culinary equipment and other food preparation equipment. PFAP shall maintain the facility in a sanitary and orderly state and ensure that all equipment available to the User operates to all applicable federal, state and local health and safety standards. b. Business Services. PFAP Center may also provide the User with,but is not liable for Business Services, including but not limited to: advice on business development,product development,packaging and label design; business plan development,training in safety and sanitation; marketing support activities,and/or assistance with food safety regulation compliance and accessing small business financing. c. User Prerequisites. All Users of PFAP will have completed the following activities and provided appropriate documentation to the PFAP Manager before the User may enter and use the Kitchen: (1) Completed application form and paid all associated fees and deposits (2) Completed Initial Consultation, (3) Completed the PFAP Orientation; (4) Provided Proof of Product Liability Insurance, as detailed in Section 4(c), below; (5) Obtained and provided to the PFAP Manager any required oversight documentation. d. Authorized Food Products. User must obtain specific authprization from PFAP prior to producing each food product. e. Scheduling of Use. PFAP shall control the times and manner of all Users' access to and use of the Kitchen. User shall request use of the Kitchen in advance. PFAP will make its best efforts to create a schedule for use of the Kitchen that accommodates all Users' reasonable 1 requests. Scheduling is available onafizstcome,first served basis,mun amended 6mthe 2. PAYMENT TERMS. User will pay PEAP rent for each hour(or part thereof)the User occupies the Kitchen and/or for the Business Services described in Section l of this Agreement according to the following terms: a. Fee Schedule.The fees for various uses of the Kitchen and/or equipment are set out in the Fee Structure,attached to this Agreement and incorporated bsneinaa6|{P9CNDIX^D. The Fee Schedule is subject to change at any time, and PFAP will make reasonable efforts to notify Users io advance of the changes. b. Payment Terms—New 0me/c Each User will pay for use of the Kitchen on a^"ney-om-you- go,`basis for the initial three(3)months of using the facility. PFAP will provide User with a bill after each use. Payment is due upon receipt. Storage fees are to be paid up-front by all Users each month. User may not use the Kitchen or Business Services until all outstanding bills are paid. u. Pmm'mmmnkl[mrmmm—Gowd Payment History. After three (3)months of on-time payments, PFAP will bill User for facility and storage use atthe end nf each calendar month. Payment is due within seven (7)business days of receipt. If User pays any bill late, PFAP may require User to pay under New User payment Terms. A Late Payment Fee may be charged for payments made more than 7 days after receipt ofinvoice. 3. USER DUTIES. User agrees to assume the following duties in its use of the Kitchen under this Agreement: u. Rental and Use Policies. User acknowledges that User has received and read the Standard Operating Procedures("SO/s'`)^ a copy of which is attached tothis Agreement and incorporated herein am APPENDIX C. PP/&P reserves the right to amend the S(7/sotany time upon written notice to User to be posted at the entrance of the building. lf User violates the S(}fs, PFApomuy impose ufInc upon User and upon repeated violation PFAPmay in its discretion terminate Agreement. User agrees to comply with all of the rules and obligations set forth inthe Standard Operating Procedures as currently stated and as modified at any time in the future. b. Contact Information.User promises that the identification,address and contact information stated at the beginning of this document is current and correct. User agrees to keep PF/tP informed of any changes io User's legal identity,address orother contact information. c. Security. PFAP is equipped with both open use and individual locked storage areas. User agrees that PPAP aumuommx no responsibility for the security of any equipment or supplies the User brings for their use in the facility. Copies orcombinations for all |nmko must be provided 0o the Manager before their use. lfany additional locked storage in brought into the facility hy the User, User shall supply o duplicate key tothe Manager. The Manager may access any space at any time for regulatory, safety, or maintenance reasons. User may not duplicate the keys provided for any storage areas. 2 d. Food and Equipment Safety and Sanitation. All Users and their employees are required to successfully complete the PFAP Orientation before they may use the Kitchen. At least one (1) User with current Serve Safe certification must be present at all times applicable based on the product being produced, as directed by the Manager. Use of all equipment requires special training and authorization from the Manager. Each person using the facility must receive specific authorization before using the Facility and certain equipment.Use of equipment can be revoked, or denied by the Manager at any time. e. Housekeeping Policies.User policies include but are not limited to the following: (1) Users will provide their own oven mitts, cooking items, ingredients, utensils, small wares and other special items necessary to their specific production needs. (2) No equipment or items owned by PFAP shall ever leave the premises. (3) Users will strictly follow the Cleaning Guidelines in the SOPS provided by PFAP before, during and after each use of the facility. (4) Users must perform and fill in the"Shift Log" before,during,and after each kitchen use, and leave them in the designated area. (5) All production and packaging of food products must take place within designated approved food production locations within the facility (6) If User fails to leave the facility in the proper condition,User will receive a warning and be responsible to pay the actual cost of cleaning the facility as determined by PFAP. Upon a second such failure,User shall pay a fine(set out in the Standard Operating Procedures)and actual cleaning costs.Upon a third such failure,this Agreement shall be terminated. f. Assignment.Except for User's properly trained and authorized employees, User may not transfer or assign User's privileges under this Agreement to any third party. This includes the disclosure of the User's security codes or keys. The User shall not grant access or allow a third party to operate in or enter the kitchen any time. Violation of this duty is grounds for immediate termination of this Agreement and the immediate discharge of that User from the kitchen. g. Signs and Advertising.No signs or advertising matter shall be painted or attached in any way on the PFAP premises. 4. HEALTH AND SAFETY RESPONSIBILITIES. To ensure the safety of all persons associated with the PFAP facility,User shall also comply with the following duties: a. Worker Safety. User is exclusively responsible for ensuring that User and its employees observe proper safety procedures while using the Kitchen.All User employees must have registered with the Manager and provided contact information in case of emergencies before being authorized to work at PFAP.No children under 16 are allowed in the kitchens when any food processing is taking place, or without the express permission of the Manager. b. Right of Inspection. PFAP staff retain the right to enter and inspect operations at any time during use.The Department of Environmental Health of Orange County as well as the Food &Drug Administration or their designees shall have the right to inspect without prior notice at any time deemed necessary by their 3 c. Product Liabiity Insurance.Each User will maintain a minimum coverage of$2,000,000 of general liability and product liability insurance, with Piedmont Food&Agricultural Processing Center named as"added named insured"on each policy. Users must provide proof of insurance to the PFAP Manager before User may enter and use the facility. S. LIMITATION OF LIABILITY. No section of the Agreement is intended to create a waiver of Orange County's rights or privileges as a sovereign entity. User agrees that any and all claims involving PFAP are strictly subject to the following limitations: a. Business Services. All Business Services provided by PFAP and/or any officers, staff, or other agents of PFAP and/or Orange County are provided solely for the purpose of assisting User in the operation of its business. Orange County makes no representations, warranties or guarantees that the business services provided will result in the success of the User. User understands and acknowledges that User is solely and completely at freedom to accept or reject any business services, and that the principal(s) or owner(s) alone are in control of the User and its success or failure. User acknowledges and agrees that Orange County and any officers, staff, trustees or other agents of Orange County are not liable to the User, or its principal(s) or owners(s) for any damages resulting from the use of or reliance upon the business services provided by PFAP. b. Liability. PFAP and/or Orange County shall not be liable for any damage to either person or property sustained by the tenant or by any third party arising in any way out of the User's use, operation, occupancy of PFAP premises, or sale or distributing of any product manufactured on the premises. The Users covenant and agree to indemnify, defend, and hold harmless PFAP and Orange County, and its employees from all claims, costs, and liability arising from or in connection with damages, injuries to persons (including death), or property in, upon, or about the PFAP premises, or any portions thereof, or resulting from the sale, distribution,and use of any product manufactured by the User on the PFAP premises. c. Indemnity. User agrees to defend, indemnify and hold harmless PFAP and Orange County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to claims, costs, and liability arising from or in connection with damages, injuries to persons (including death), or property in, upon, or about the PFAP premises, or any portions thereof, or resulting from the sale, distribution, and use of any product manufactured by the User on the PFAP premises, except to the extent same are caused by the negligence or willful misconduct of PFAP and/or Orange County. It is the intent of this provision to require User to indemnify Orange County and PFAP to the fullest extent permitted under North Carolina law. 6. CONFIDENTIALITY. User and PFAP agree and acknowledge as follows: a. Confidential Information. The Kitchen is a shared-use facility, and may be occupied and used simultaneously by similarly situated third-party Users("Others"). The Parties further acknowledge and agree that the conduct of User's business and the production of User's food products may involve the use of recipes,techniques, sources of ingredients,financial and business records and other information that is owned and used exclusively by the User that constitute trade secrets or proprietary knowledge that must remain confidential for the protection of User's business("Confidential Information"). User acknowledges and agrees 4 that Others may also have Confidential Information that applies to the conduct of their own business. User and PFAP acknowledge and agree that User's Confidential Information may be disclosed to PFAP for the purpose of providing product authorization,training, or Business Services to User. Provided however, Confidential Information does not include information that is already known to PFAP,to the public or any third party beyond User's control, or obtained by User from an independent source or otherwise developed independently from the User. This agreement does not cover any disclosure required by applicable law or regulation. b. Permitted Disclosure. (1) PFAP is required to report to its grantors and sponsors on the economic impact of the services it provides. Users agree to provide an estimated sales value (wholesale and/or retail)all of the goods they produce each time they use the Facility. PFAP will treat this as Confidential Information and will provide only aggregate information in its reports. (2) In the course of dealing with PFAP and its officers and employees under this Agreement,User shall take care to inform PFAP whenever User is disclosing Confidential Information to PFAP. PFAP shall make all reasonable efforts to prevent disclosure of User's Confidential Information to any third party. c. Protecting Confidential Information. In the course of using the Facility, User shall make reasonable efforts to not give User's Confidential Information to Others or any third party. User shall also respect that Others using the Facility may be applying their Confidential Information and shall take care not to discover Other's Confidential Information. Any spying or deliberate intrusion into Others' Confidential Information is grounds for terminating this Agreement. PFAP is not responsible for the misuse of Confidential Information by Others. d. Public Records.Notwithstanding the foregoing, User acknowledges that the Agreement and any information obtained pursuant to the Agreement or use of the Kitchen or Business Services may be deemed public records and subject to disclosure in whole or in part under the North Carolina Public Records Law. PFAP and/or Orange County will provide User with prompt notice of any intended public records disclosures, and an appropriate opportunity to seek protection for User's confidential and proprietary information consistent with all applicable laws and regulations. 7. TERMINATION. This Agreement shall continue indefinitely unless terminated as provided in this Section. User's obligations pursuant to Section 6 (Confidentiality) of this Agreement and any financial obligation to PFAP shall survive the termination of this Agreement. a. Voluntary Termination. This Agreement may be terminated at any time upon mutual agreement of PFAP and the User. User may terminate this Agreement at any time upon written notice to PFAP. b. Breach or Default.User must correct any violation, breach, or failure to keep or perform any conditions of this Agreement or the SOPs within three (3)days after receiving written notice of such from the Manager of PFAP. If more than three (3) days pass without any corrective 5 action taken by the User,PFAP may, in its sole discretion,terminate this Agreement. This Agreement may also be terminated as provided in Section 3 of this Agreement. c. User Property. Upon termination, User shall remove all of User's property from the Facility. If User's property is not promptly removed,PFAP may enter,take possession of and remove User's property. User shall be liable to PFAP for a reasonable storage cost for any property removed in this way. 8. MISCELLANEOUS PROVISIONS. a. Jurisdiction and Venue.Any disputes regarding this Agreement shall be resolved in the courts of Orange County,North Carolina,and according to the laws of North Carolina. b. Relationship of Parties. This Agreement shall not be construed to form a partnership or any other business association between the Parties other than independent parties to contract. User, its officers, agents and employees are not employees or agents of PFAP. c. Entire Agreement. This Agreement with the Appendices represents the entire and integrated agreement between the County and the Userr and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. d. Waiver. Failure of PFAP and/or Orange County to require compliance by User with any provisions of this Agreement or the waiver by the PFAP and/or Orange County of any breach of this Agreement or PFAP policies shall not constitute a waiver of any claim for damages by PFAP and/or the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. e. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable,the remainder of this Agreement shall be valid and binding upon the Parties. 9. ENJOYMENT. This shared-use commercial kitchen is a unique facility meant to be useful to and enjoyed by its Users. The kitchen has been furnished to accommodate a wide variety of start- up food businesses. It is necessary that all Users work collectively to make this shared-use space work for all. Cooperation will benefit everyone and will allow harmony in the entire space. It is the desire of PFAP to aid the many persons that may desire to start their business and provide a clean and workable space for all parties. We wish each User's business the greatest success with their product and with their business. May each grow and prosper and become a part of our community. SIGNATURES ON FOLLOWING PAGE 6 This Agreement is executed all as of the day and year first above written, by the duly authorized representative of each party. ORANGET '0�6 USER: Fickle Creek Farm By: 4--/-l"-_/3_ By: I& County Managf( &_=� A, 6a,9C-,MAmMZN,,A,0 aAr JE-1,U Printed Name and Title PIEDMONT FOOD&AGRICULTURAL PROCESSING CENTER By: Matthew Ri(5NI,Manager" This instrument has bee pprov as to technical content. C__�Oljo I ��12t Steve Brant ey,Department_bire`ct4 This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. (144� V�, 41"-- Office of the Finance Director This inorurnent has been approved as to form and legal sufficiency. Office of thi',tounty Attorney I V 7 . _ 0 3V ORANGE COUNTY-CONTRACT CONTROL SHEET Routing Order: (1)Department,(2)IT,(3)Risk Management,(4)Financial Services,(5)Attorney,(6)Manager,(7)Clerk This Document shall accompany all contracts and shall be submitted for signature in the Routing Order specified above. If the Manager determines the contract is not appropriate for Manager approval the Manager shall submit the contract for BOCC approval. Contracts for BOCC approval must be submitted through,and complete,the routing process prior to agenda review. Contracts for legal review should be completed through the legal review process prior to being routed for signature. Department Party/Vendor Name: Fickle Creek Farm Party/Vendor Contact Person: Ben Bergmann Contact Phone:919-304-6287 Party/Vendor Address:4122 Buckhom Road City Efland State:NC Zip:27243 Department:Economic Development/PFAP Amount: Purpose:Use of facility Budget Code(s): Vendor# (N/A if new vendor) Vendor is a BOCC consultant? Yes r-1 NoN Contract Type:(Check one)New Z Renewal❑ Amendment ❑ Effective Date 12/01/2011 Approved by Board Yes❑Noz Agenda Date:NA Title of Contract:User Services Contract If this is a Grant Agreement,pre-application has been approved by the Board of Commissioners Yes❑NoZ. If submitted for bid were bids/RFPs received Yes❑No❑ Bid/RFP number This contract has been reviewed and approved by the Department Director as to technical content: Department Director's Signature: Date: IT Dire or (Applicable only to hardwarelsoftware purchases or related services)This contract has been reviewed and approved by the Information Technology Director as to technical content and information technology specifications: IT Director's Signature: , r4 Date: Risk Management include the following coverages: 0�(CV Ruto; ❑ WC; ❑ Professional; ❑ Property; ❑ OR No Insurance Required El. Hold Contract pending receipt of Certificate of Insurance.EgC_4Vith incorporation of Insurance provisions as shown,this contract is approved by the Risk Manager: Risk Manager's Signature: 4=f:,A Date: 1 )-%P Financial Services This Contract is condition Ed ypon appropriation by the Board of Commissioners Yes❑NOX A budget amendment is necessary before approval Yes❑No If budget amendment is necessary,please attach to this form. This instrument has been pre-audited in the manner required by the Locral Government Budget and Fiscal C I Act: Financial Services Director's Signature: A o OdA,.A, Date: /0 it County Attorney Approval by Board ❑ (Contracts over $90,000.00 for goods or services, $250,000.00 for construction, or any BOCC consultant contract). Approval by Manager (All other contracts). This contract has been reviewed and approved by the Attorney as to legal form and sufficiency: Attorney's Signature County Manager This contract has been reviewed and is approved by the Count"(Manager Yes on This contract has been reviewed and is ub e B CC consideration Yesouer_r� Manager's Signature: Date: Clerk to the Board Approved by BOCC on the day of 20 . Submitted for Chair signature on the_day of 20 Clerk's Signature: Date: Revised April 2010 NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC. CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(les)must be endorsed.If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). INSURED BEN A BERGMANN CERTIFICATE ORANGE COUNTY NC PFAP NAMEAND DBA FICKLE CREEK FARM HOLDER 500 VALLEY FORGE ROAD ADDRESS 4122 BUCKHORN ROAD HILLSBOROUGH NC 27278 EFLAND NC 27243 pfap@CO.orange.nc.us COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. X TYPE OF INSURANCE ADDLSUBR POLICY NUMBER POLICY EFF PNOULIICY EXP LIMITS ® COMMERCIAL GENERAL LIABILITY x SMP 0124556 3/28/2011 3/28/2012 GENERAL AGGREGATE $1,000,000 -OCCURRENCE AGGREGATE COMP/OPS $1,000,000 GEN'L AGGREGATE APPLIES PER POLICY PERSONAL 6 ADV INJURY $1,000,000 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED n $100 000 E MED EXP(Any one person) $5,000 ❑ EACH OCCURRENCE $ BUSINESSOWNERS AGGREGATE AUTOMOBILE LIABILITY (Ech accident) LIMIT $ ❑ SCHEDULED AUTOS BODILY INJURY(Per person) $ ❑ HIRED AUTOS BODILY INJURY(PeraccldeM) $ ❑ NON-OWNED AUTOS PROPERTY er accident) GE $ ❑ GARAGE LIABILITY ❑ (Other) EACH OCCURRENCE $ ❑ EXCESS LIABILITY— AGGREGATE $ OCCURRENCE WCSTAMORYUMITS ❑ WORKERS COMPENSATION N/A E.L.EACH ACCIDENT $ AND EMPLOYERS'LIABILITY E.L.DISEASE-EA EMPLOYEE $ POLICY APPLIES TO THE WORKERS COMPENSATION LAW IN THE STATE OF NC E.L.DISEASE-POLICY LIMIT $ OTHER: DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES: CANCELLATION _ AUTHORIZED REPRESENTATIVE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. DATE 12/15/2011 COI 0910