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HomeMy WebLinkAboutPepsi Americas-Beverages Agreement-08.20.2007 8 )oo ? afilik-ei 00°7 64-1 AMENDMENT TO BEVERAGES AGREEMENT This Amendment to Beverages Agreement(the"Amendment")is entered into as of August ,P D ,2007, by and between the City of Waterloo,Iowa("Lessor")and Pepsi Americas (hereinafter"Lessee"). RECITALS A. Lessor and Lessee are parties to a certain Beverages Agreement dated October 6, 2003, as previously amended(the "Agreement"). The Agreement establishes the terms of the parties' relationship with each other and their respective rights and duties in relation to the provision of beverage services by Lessee. B. The parties desire to amend the Agreement on the terms set forth herein to extend the term and make other modifications. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises exchanged herein and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Section 1. Section 1 is hereby amended to delete paragraphs (a), (b), and(c) therefrom and to substitute in lieu thereof the following new paragraphs: a. Lessor agrees to permit Lessee to use those portions of the following premises that are specifically set aside by Lessor for Lessee to provide beverage services beginning, the September 1, 2007, and ending on August 31, 2008. Said premises are as follows: Young Arena, 125 Commercial Street Byrnes Park, generally at Fletcher and Campbell Avenues Gates Pool, generally at E. Donald&Mildred Streets Byrnes Tennis Center, Campbell Avenue Youth Baseball Complex, generally at Park Road and Burton Avenue b. During the term of this Agreement,Lessee shall have the exclusive business at each of the above facilities. c. No less than ninety(90) days prior to the end of the term of this Agreement, the parties shall begin to negotiate in good faith to extend the term for an additional one year. If such negotiations are not successful,Lessor may solicit proposals from other companies. 2. Section 2. Section 2 is hereby amended to strike from paragraph(b) thereof "Lessor shall be named as an additional insured(City of Waterloo, Iowa, and Young Arena) . . ." and to substitute therefor"Lessor shall be named as an additional insured . . . ." Section 2 is further amended to add the following new sentence to the end thereof: "Naming Lessor as an additional insured shall not constitute a waiver of Lessor's governmental immunity under Iowa Code Chapter 670." 3. Section 3. The contact person for Lessee as stated in section 3 is amended to substitute Larry Schroeder for Ken Schuler. 4. Section 9. Section 9 is hereby amended to strike paragraphs(b)and(c)in their entirety. No substitution is made for said paragraphs. 5. Section 18. Section 18 is hereby amended to delete the last sentence thereof and the table appearing therein and to substitute in their place the following new sentence and table: . . . During the term of this Agreement,the following prices per case of product shall apply: Package Cost 20 ounce carbonated soft drinks $17.75 20 ounce non-carbonated soft drinks $17.75 20 ounce Gatorade $20.75 20 ounce Water $13.75 16.9 ounce Propel $20.75 16 ounce Dole Juice $19.75 12 ounce cans $ 7.35 8.4 ounce Mt. Dew Amp $30.75 8.3 ounce Adrenaline Rush $30.75 6. Section 19. A new section 19 is hereby added to the Agreement as follows: 19. VENDING MACHINES. Lessee shall supply vending machines to the premises of Lessor as follows: Young Arena: 1 snack machine and 1 bottle drop machine Byrnes Park Swimming Pool: 2 snack machines and 2 bottle drop machines Gates Park Swimming Pool: 1 snack machine and 2 bottle drop machines 2 Lessor shall not pay Lessee any rental charge for vending machines. Lessor shall be responsible for filling all vending machines. Lessor shall be entitled to keep all revenue from vending machines. Lessee shall promptly provide all necessary repairs and maintenance for the vending machines. 7. Due Authorization. Lessor and Lessee each represents and warrants to the other: (i)that all requisite action on its part to duly and validly authorize and approve the terms of this Amendment to ensure the enforceability of said terms has been taken, and(ii)that the person or persons signing this Amendment on its behalf is/are duly authorized to execute and deliver this Amendment on behalf of the representing party. 8. No Partnership or Joint Venture. Nothing in this Amendment or the Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between Lessor or Lessee nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 9. Entire Agreement; Scope. This Amendment and the Agreement constitute the entire agreement between the parties pertaining to the subject matter hereof. Except as amended herein,the Agreement shall continue in full force and effect without modification. 10. Severability. In the event any provision of this Amendment or the Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Amendment and the Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Amendment or the Agreement is invalid, illegal, or unenforceable as written,but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 11. Binding Effect. The provisions of this Amendment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 12. Headings and Captions. The title or captions of paragraphs in this Amendment and the Agreement are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting or applying this Amendment or the Agreement, and such • titles or captions do not define, limit, extend, explain, or describe the scope or extent of this Amendment or the Agreement or any of its terms or conditions. 13. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [signatures on next page] 3 IN WITNESS WHEREOF,the parties have executed this Amendment to Beverages Agreement as of the date first written above. LESSOR LESSEE City of Waterloo,Iowa Pepsi Americas By: / By: Timothy J. Hurle , ayor Title: Attest: �CX Nancy Eck City Clerk 4 N i