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HomeMy WebLinkAboutPepsi-Co-Beverages Agreement-10.20.2008 BEVERAGES AGREEMENT This Beverages Agreement(the"Agreement")is entered into as of September 1,2008,by and between the City of Waterloo,Iowa(the"City")and Pepsi-Cola General Bottlers of Iowa,Inc.,d/b/a PepsiAmericas ("Pepsi"). RECITALS A. Pepsi is a distributor of non-alcoholic drinks, except for hot-brewed coffee, hot- brewed tea, and milk (the "Beverages"). The Beverages include those drinks identified in this Agreement and such drinks as Pepsi may distribute in the future, including but not limited to carbonated and non-carbonated soft drinks,juices, juice-containing drinks, teas, sports or isotonic drinks, bottled waters, and bottled coffees. B. The parties desire to appoint Pepsi as the sole and exclusive distributor of Beverages at the City locations identified herein, on the terms and conditions set forth in this Agreement. NOW,THERFORE,in consideration of the mutual covenants contained herein and for other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. TERM, LOCATIONS, AND EXCLUSIVE RIGHTS. a. City agrees to permit Pepsi to use those portions of the following premises that are specifically set aside by City for Pepsi to provide beverage services beginning,the September 1, 2008, and ending on August 31, 2013. Said premises (the "Locations") are as follows: Young Arena, 125 Commercial Street Byrnes Pool 801 Campbell Avenue Gates Pool, 750 E. Donald Byrnes Tennis Center, 1110 Campbell Avenue Youth Baseball Complex, 539 Burton Avenue Neither the identification of the Locations nor any other term or provision of this Agreement shall be deemed to create in Pepsi any interest in real property owned by City. City shall be responsible for expenses of all utilities at the Locations. b. During the term of this Agreement, Pepsi shall have the sole and exclusive right to supply, distribute and advertise Beverages at each of the Locations. City agrees that no Beverages or Beverage-related items,including but not limited to cups or premium items,other than the Brands shall be made available,advertised,or otherwise promoted at the Locations. If any other person or entity attempts, without Pepsi's express consent, to associate Beverages with City that compete with or are the same as or similar to the Brands("Competitive Products")or to suggest that Competitive Products are endorsed by or associated with City by referring directly or indirectly to City, then City agrees to cooperate with Pepsi's efforts to oppose such activities. c. City agrees to inform and require each food provider,caterer or concessionaire that operates or will operate at the Locations during the term of this Agreement to honor Pepsi's rights of exclusive distribution, sale, advertising and promotion of Beverages. d. 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 three years. If such negotiations are not successful, City may solicit proposals from other companies. 2. PRICING OF BEVERAGES. All Pepsi Beverage products(the"Brands") sold or given away at the Locations shall be purchased from Pepsi's route delivery truck. Product delivery shall be at least twice per week. In the event product is needed after normal working hours or on weekends, Pepsi's answering service shall assist City. During the initial year of this Agreement,the following prices per case of product shall apply to the Brands: Package Cost Units/case 20 ounce carbonated soft drinks $18.65 24 20 ounce non-carbonated soft drinks $18.65 24 20 ounce Gatorade $20.75 24 20 ounce Aquafina $13.00 24 16.9 ounce Propel $20.75 24 15.2 ounce Dole juice $11.00 12 The above prices do not include applicable bottle deposits. At its option, Pepsi may increase the prices on the Brands by a maximum of five percent (5%)per contract year. 3. DISPENSING EQUIPMENT. At its own expense, Pepsi shall provide to City all equipment necessary to dispense the Brands at the Locations. City agrees that the Brands shall be the only products dispensed from such equipment. Pepsi will care for and maintain the equipment at its own expense. Pepsi shall retain ownership of the equipment. 4. PAYMENT BY PEPSI. Pepsi shall pay City the sum of$12,000.00 each year during the term of this Agreement. The first payment shall be made concurrently with execution of this Agreement,and each subsequent payment shall be made annually in advance on or before September 1 for the ensuing contract year. 5. VENDING MACHINES. Pepsi shall supply vending machines to the premises of City 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 Pepsi shall retain ownership of the machines,and City shall not pay Pepsi any rental charge for same. City shall be responsible for filling all machines and shall be entitled to keep all revenue from machine sales. Pepsi shall promptly provide all necessary repairs and maintenance to keep the vending machines in operating condition. 6. CARE AND MAINTENANCE OF LOCATIONS. Pepsi takes any and all premises of City that are within the scope of this Agreement in their present condition and, if applicable, shall maintain the area occupied by Pepsi equipment or machines in safe,serviceable,and good condition. Pepsi shall not permit or allow said premises to be damaged or depreciated in value by any act of anyone, including but not limited to the negligence of Pepsi, its agents or employees. 7. INSURANCE AND INDEMNITY. a. During the term of this Agreement,Pepsi shall,at its own expense,maintain in force and effect casualty and general commercial liability insurance in amounts not less than Five Million Dollars($5,000,000.00)for any one person injured and Five Million Dollars($5,000,000.00) for any one accident, and with limits of One Million Dollars ($1,000,000.00)for property damage. Such insurance shall cover liability arising from premises operations, independent contractors, personal injury,products,and completed operations and liability assumed under an insured contract, including but not limited to the activities of Pepsi,its employees and agents. Certificates or copies of said policies, showing City as an additional insured, and providing for thirty (30) days' advance notice to City before cancellation, shall be delivered to City concurrently with execution of this Agreement. A renewal certificate shall be provided to City prior to expiration of any policy. Any liability shall be first assumed by Pepsi's insurance up to the limits of coverage as set forth herein. City may at its own expense procure and maintain additional insurance. Naming City as an additional insured shall not constitute a waiver of City's governmental immunity under Iowa Code Chapter 670. b. Except as to any negligence of City,Pepsi shall protect,indemnify,and hold harmless City from and against any and all claims, demands, causes of action, suits or liabilities whatsoever which may arise out of this Agreement, or the acts or omissions of Pepsi in respect of this Agreement. 8. SECURITY INTEREST. Pepsi hereby grants to City a security interest in all personal property of Pepsi at any Location, to secure Pepsi's performance hereunder. 9. LIENS. Neither Pepsi nor anyone claiming by, through, or under Pepsi, shall have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever upon any of the Locations or upon any building or improvement thereon,and that no contractor,subcontractor, or any part thereof, shall at any time be or become entitled to any lien thereon. 10. ASSIGNMENT. Any assignment of this Agreement by Pepsi, in whole or in part, without City's prior written consent, shall, at the option of City, immediately terminate this Agreement,and Pepsi shall immediately surrender the premises and abide by all other provisions of this Agreement which may apply at that time. This Agreement does not give Pepsi any interest in the 3 subject premises that is capable of being subleased,assigned,mortgaged,or otherwise disposed of to another party. 11. TOBACCO AND SMOKE FREE LOCATIONS. Pepsi acknowledges that the Locations are smoke-free areas and that Young Arena is a tobacco-free facility, s thereof may cause the offender to be punished accordingly as well as place Pepsin default ofthisnAgreement if any agent, employee, or other person under Pepsi's control violates said restrictions. Accordingly, Pepsi shall make every effort to prevent any use of tobacco, including the chewing or smoking thereof, in any of the Locations at which Pepsi shall provide services pursuant to this Agreement. 12. DEFAULT AND REMEDIES. a. B Pe si. Except as set forth elsewhere in this Agreement,in the event Pepsi breaches any of its duties hereunder, City shall have the right to terminate this Agreement thirty(30) days after delivery of written notice to Pepsi that specifies the default, if such default remains uncured within said 30-day period. Any sums due and owing but unpaid shall accrue interest at the rate of twelve percent (12%)per annum. b. By City. In the event City breaches any of its duties hereunder, Pepsi shall have the right to terminate this Agreement thirty(30)days after delivery of written notice to City that specifies the default, if such default remains uncured within said 30-day period. Furthermore, if Pepsi has made its annual payment for the contract year in which termination occurs, City shall be liable to return to Pepsi the sum of$1,000.00 per month for each month remaining in the contract year, up to a maximum of$6,000.00. Any sums due and owing but unpaid shall accrue interest at the rate of twelve percent (12%)per annum. c. No waiver of any default shall constitute a waiver of any other or subsequent default. The rights and remedies set forth herein are intended to be cumulative, and none of them exclusive of the others or exclusive or any rights or remedies available under applicable law. 13. NOTICES. Any notice under this Agreement shall be in writing and shall be delivered in person or by first class U.S. mail, postage prepaid, addressed as follows: CITY PEPSI Chris Dolan Dan Rousselow Young Arena Pepsi Americas 125 Commercial Street 1424 Burton Avenue Waterloo, IA 50701 Waterloo, IA 50703 Delivery of notice shall be deemed to occur(i) on the date of delivery when delivered in person, (ii) two (2) business days following the date of deposit if mailed by first class U.S.,postage prepaid. Each party may change its address for notices by giving notice in the manner provided for in this Section. 4 14. DUE AUTHORIZATION. Each party 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 Agreement to ensure the enforceability of said terms has been taken, and (ii) that the person or persons signing this Agreement on its behalf is/are duly authorized to execute and deliver this Agreement on behalf of the representing party. 15. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture,partnership, agency, employment, or any other relationship between the parties nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 16. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, superseding all prior or contemporaneous understandings or agreements, whether oral or written. No modification of this Agreement shall be effective unless in a written instrument signed by both parties. 17. SEVERABILITY. In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this 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 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. 18. BINDING EFFECT. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 19. HEADINGS AND CAPTIONS. The title or captions of paragraphs in this Agreement are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting or applying this Agreement, and such titles or captions do not define, limit, extend, explain, or describe the scope or extent of this Agreement or any of its terms or conditions. 20. COUNTERPARTS. This Agreement 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. IN WITNESS WHEREOF, the parties have executed this Beverages Agreement by their duly authorized representatives as of the date first set forth above. [signatures on next page] 5 CITY OF WATERLOO, IOWA PEPSI-COLA GENERAL BOTTLERS OF IOWA, INC., d/b/a PEPSIAMERICAS By. -� Timothy J. H , Mayor By: Oef-/..7 0 Title: � 5 5. Attest: �c� ,tct /O ' (,),7 ` r,�Uc3 Nancy Ecke 'ty Clerk 6