Loading...
Beverage, Vending & Advertising Rights (7/20/2020 - 7/20/2023) AGREEMENT FOR BEVERAGE,VENDING AND ADVERTISING RIGHTS This Agreement for Beverage, Vending, and Advertising Rights ("Agreement") is entered into this 20th day of July 2020, by and between the City of Salina, Kansas (the "City")and Pepsi- Cola Bottling Company of Salina, Inc., a Kansas corporation ("Contractor"). Recitals A. The City owns and operates through its Parks and Recreation Department certain facilities described in Exhibit A attached hereto (the "Facilities"), which are designed to host athletic and other recreational events and activities attended by the general public. B. In order to better serve the needs of the general public attending events and activities at the Facilities, the City desires to grant certain exclusive rights to Contractor in exchange for compensation, services, and advertising rights. The parties, in consideration of the mutual promises set forth in this Agreement,agree and covenant: 1. Grant of Exclusive Rights. The City grants Contractor the exclusive rights to: (a) supply for concession operations within the Facilities all beverage items, including but not limited to carbonated soft drinks, energy drinks, bottled water, ice tea drinks, coffee drinks, sports drinks, juices, milk or dairy products, or any other non-alcoholic beverage item (the "Concession Services"); and (b)place and operate automatic vending machines in and around the Facilities for purposes of selling snack and beverage items (the "Vending Services"). 2. Term. The term of this Agreement shall be for a period of three (3) years commencing July 20, 2020 and expiring July 20, 2023, subject to the terms and conditions of this Agreement. 3. Equipment; Personnel. The Contractor will provide, at no cost to the City or any concessionaire, all of the equipment, including coolers, vending machines, and fountain and dispensing equipment, necessary to provide the Concession Services and Vending Services at the Facilities (the "Equipment"); provided, however, that the Equipment shall not be deemed to include any ice-making equipment. The Equipment shall be furnished in a new or like-new condition. The Contractor shall remain the owner of all Equipment and shall be solely responsible for all maintenance and repairs. The Contractor shall provide trained personnel to properly service the Equipment and shall provide regular service visits to inspect the Equipment and address any needed repairs or maintenance. 4. Vending Services. In connection with the Vending Services,the Contractor agrees as follows: 4.1. Locations. The Contractor shall place vending machines at such locations in and around the Facilities as designated and mutually agreed by the parties, from time to time. The City shall have the right to authorize the placement of vending machines at City-owned 1 4 properties other than the Facilities, but such authorization shall not be deemed to grant the Contractor any exclusive rights, unless otherwise agreed by the parties in writing. 4.2. Products; Stocking. The Contractor shall carry a full line of quality, name brand foods and drinks, and shall stock products with a proven sales history, with such stocking frequency as volume indicates;provided,however,that the City shall make the final determination as to which products are to be sold. The Contractor shall be solely responsible for all costs and expenses of stocking products in the vending machines. 4.3. Cashless Vending. Cashless vending shall be available for all vending machines, including counters and meters that track all sales for individual machines. 4.4. Reporting. Detailed sales reports shall be provided to the City on a monthly basis, at the time of remittance of the City's share of vending revenues. The reports shall include meter readings, dollar amounts collected, and percentages for each vending machine. 5. Concession Services. In connection with the Concession Services,the Contractor agrees as follows: 5.1. Delivery of Product. Upon request by the City, the Contractor agrees to deliver beverage products to concession stands within the Facilities. Bottled beverages shall be delivered sufficiently in advance of the applicable event to allow the beverages to become chilled. 5.2. Products. The Contractor will supply all available beverage products in its distribution system; provided, however, that the City or the City's concessionaire shall make the final determination as to which products are to be sold at a particular facility or event. 5.3. Concession Trailers.The Contractor agrees to supply concession trailers for outside concessions for all athletic tournaments or other comparable events at the Facilities, as requested by the City. 5.4. Wholesale Pricing. The Contractor will supply products for the Concession L, y Services at the following prices: Package Wholesale Price Unit Price Soft drink $27.86 per case 24 pack $1.16 per unit Gatorade 20 oz. Bottles $25.96 per case 24 pack $1.08 per unit Klarbrunn 20 oz. Bottled Water $13.74 per case 24 pack $0.57 per unit UBR 24 oz. Bottled Water $15.14 per case 24 pack $0.63 per unit Dole Juice 15.2 oz. $15.60 per case 12 pack $1.30 per unit Vita Ice 17 oz. $8.40 per case 12 pack $0.70 per unit 5 gal BIB National Pricing $83.25 per box 3 gal BIB National Pricing $51.66 per box The City and the Contractor each reserve the right to annually negotiate wholesale price adjustments to be effective as of any July 20 anniversary date of this Agreement, commencing 2 with the July 20, 2021 anniversary; provided, however, the Contractor's wholesale prices to the City shall not exceed the Contractor's regularly published wholesale prices. 6. City's Grant of Advertising Rights. 6.1. Concession Stand Advertising. The Contractor will supply all menu boards and have the right to install, change and maintain advertising in the concession stands at the Facilities with prior written approval from the City. 6.2. Field House Advertising. The Contractor shall have the right to place one 4' X 3' sign at a mutually agreed location in the Salina Field House. The Contractor shall be responsible for the cost of creating, producing, and installing the sign. 6.3. Golf Card Advertising. The Contractor shall have the right to place an advertisement on the score cards for the Salina Municipal Golf Course, which advertisement shall be mutually agreed upon by the parties. The City agrees that the Contractor shall be the exclusive non-alcoholic beverage advertiser on the score cards. 7. Compensation to City. 7.1. Vending Compensation. In consideration of the City's grant of the right to perform the Vending Services, the Contractor shall pay the City twenty five percent (25%) of all revenues earned from the Vending Services at the Facilities; provided, however, that the Contractor shall not be required to pay the City any commission on sandwiches sold from the vending machines. The Contractor shall make payment to the City on or before the tenth (10th) day of each calendar month attributable to the City's share of all revenues from the immediately preceding calendar month. 7.2. Other Compensation. In consideration of the other rights granted to the Contractor under this Agreement, and during the term of this Agreement,the Contractor shall pay the City the sum of $3,000.00 per year for Concession Stand Advertising and Fieldhouse Advertising. Contractor will be billed separately $250 from the Municipal Golf Course in regards to section 6.3 of the contract. This shall be paid in advance on or before August 1st of each year, commencing on August 1, 2020. 7.3. Rebates. In addition, the Contractor agrees to pay to the City, either quarterly or annually at the City's election,the following rebates: a. A $3.00 rebate on each 24-pack drink case sold at the Facilities (exclusive of Snack Express vending sales); b. A $1.50 rebate on each 12-pack drink case sold at the Facilities (exclusive of Snack Express vending sales); and c. A $0.50 rebate on each 20 oz. 24 pack of water sold at the Facilities. 3 7.4. In-Kind Contribution. The Contractor agrees to annually supply to the City ten (10) cases of product for the First Tee golf tournament. 8. Default. If either party fails to comply with any term of this Agreement within ten (10) days after written notice to comply has been mailed by the non-defaulting party to the defaulting party, such failure shall be deemed an immediate breach of this Agreement ("Event of Default"). 9. Remedies. Upon the occurrence of an Event of Default, the non-defaulting party shall have the following rights and remedies, in addition to any other rights and remedies provided under this Agreement or by law: 9.1. Termination. The non-defaulting party shall have the right to terminate this Agreement or terminate the defaulting party's rights under this Agreement. 9.2. Other Remedies. The non-defaulting party may pursue any available remedy at law or in equity (including specific performance) by suit, action, mandamus or other proceeding to enforce and compel the performance of the duties and obligations set forth in this Agreement, to enforce or preserve any other rights or interests of the non-defaulting party under this Agreement or otherwise existing at law or in equity and to recover any damages incurred by the non-defaulting party resulting from such Event of Default. 10. Insurance Requirements. 10.1. Types and Amount of Coverage. The Contractor agrees to obtain insurance coverage as specified in Exhibit B, attached hereto, and shall not make any material modification or change from these specifications without the prior approval of the City. If the Contractor subcontracts any of its obligations under this Agreement, the Contractor shall require each such subcontractor to obtain insurance coverage as specified in Exhibit B. Failure of the Contractor or its subcontractors to comply with these requirements shall not be construed as a waiver of these requirements or provisions and shall not relieve the Contractor of liability. 10.2. Rating. All insurance policies shall be issued by insurance companies rated no less than A-VII in the most recent"Bests"insurance guide,and admitted in the State of Kansas. Except as otherwise specified in Exhibit B,all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. 10.3. Certificate of Insurance. The parties acknowledge that the Contractor has provided the City with a certificate of insurance listing the City as the Certificate Holder and evidencing compliance with the insurance requirements in this Agreement. The City reserves the right to require complete certified copies of all insurance policies procured by the Contractor pursuant to this Agreement, including any and all endorsements affecting the coverage required hereunder. 11. Indemnification. To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the City, its agents, representatives, officers, officials and employees from and against all claims, damages, losses and expenses(including but not limited to 4 attorney fees and court costs) attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property, including loss of use resulting therefrom,to the extent that such claims, damages, losses, and expenses relate to, arise out of, or are alleged to have resulted from the wrongful acts, negligent acts, errors, omissions, or defective work or services of the Contractor, its employees, agents, or any tier of subcontractors in the performance of this Agreement. 12. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested,or by generally recognized,prepaid,commercial courier or overnight air courier service. Notice shall be considered given when received on the date appearing on the return receipt,but if the receipt is not returned within five (5)days, then three (3) days after mailed, if sent by registered or certified mail or commercial courier service; or the next business day, if sent by overnight air courier service. Notices shall be addressed as appears below for each party,provided that if any party gives notice of a change of name or address,notices to the giver of that notice shall thereafter be given as demanded in that notice. City: City Clerk Attn: Chris Cotten, Direction of Parks and Recreation P.O. Box 736 Salina, KS 67402-0736 Contractor: Pepsi-Cola Bottling Company of Salina, Inc. 604 N. 9th Street Salina, KS 67401 13. Assignment.The City's willingness to enter this Agreement and the public interest served thereby is unique to the Contractor; therefore, this Agreement is non-assignable by the Contractor. 14. Relationship. It is expressly understood that the Contractor in performing services under this Agreement, does so as an independent contractor. The City shall neither have nor exercise any control or direction over the methods by which the Contractor performs its responsibilities under this Agreement. The sole interest and responsibility of the City is to see that the services covered by this Agreement are performed and rendered in a competent, efficient, and satisfactory manner. The Contractor shall be exclusively responsible for all taxes, withholding payments, employment-based benefits, deferred compensation plans, including but not limited to its workers compensation and social security obligations,and the filing of all necessary documents, forms, or returns pertinent to the foregoing. 15. Subcontracting. The Contractor shall not subcontract any work or services under this Agreement without the City's prior written consent. 16. Compliance with Applicable Law. The Contractor shall comply with all applicable federal, state, and local law in the performance of this Agreement. 5 17. Equal Opportunity. In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code,the Contractor and its subcontractors, if any, agree that: (1) The Contractor shall observe the provisions of the Kansas act against discrimination and Chapter 13 of the Salina Code and in doing so shall not discriminate against any person in the performance of work under this Agreement because of race, sex, religion, age, color, national origin, ancestry or disability; (2) The Contractor shall include in all solicitations, or advertisements for employees, the phrase "equal opportunity employer," or a similar phrase to be approved by the City's human relations director; (3) If the Contractor fails to comply with the manner in which the Contractor reports to the Kansas human rights commission in accordance with the provisions of K.S.A. 44-1031 and amendments thereto, the Contractor shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City; (4) If the Contractor is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas act against discrimination under a decision or order of the Salina human relations commission or the Kansas human rights commission which has become final, the Contractor shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City; (5) The Contractor shall not discriminate against any employee or applicant for employment in the performance of this Agreement because of race, sex, religion, age, color, national origin, ancestry or disability; and (6) The Contractor shall include similar provisions in any subcontract under this Agreement. 18. Administration of Agreement. All references in this Agreement requiring the City's participation or approval shall mean the participation or approval of the City Manager or his designee, unless otherwise provided herein. 19. Attorney Fees. If any suit or action is instituted by either party hereunder, including all appeals,the prevailing party in such suit or action shall be entitled to recover reasonable attorney fees and expenses from the non-prevailing party, in addition to any other amounts to which it may be entitled. 20. Applicable Law; Venue. This Agreement and its validity, construction and performance shall be governed by the laws of Kansas. In the event of any legal action to enforce or interpret this Agreement,the sole and exclusive venue shall be in the Saline County, Kansas District Court. 21. Interpretation. This Agreement shall be interpreted according to its fair meaning, and not in favor of or against any party. 6 22. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and signed by the parties. Should the end of a time period fall on a legal holiday that termination time shall extend to 5:00 p.m.of the next full business day. 23. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid,or illegal. 24. Authority and Consent to Transaction. Each party represents to the other that the person executing this Agreement has full and legal authority to bind such party to the terms of this Agreement, and that the execution and delivery of this Agreement have been duly and validly authorized by the governing body of each party. 25. Persons Bound. This Agreement shall extend to and bind the heirs, executors, administrators,trustees, successors and authorized assigns of the parties hereto. 26. Counterparts. This Agreement may be executed in any number of counterparts,each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 27. Amendments. Neither this Agreement nor any of its terms may be changed or modified, waived, or terminated except by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change, waiver, or termination is sought. 28. Waiver. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 29. Conflict Resolution. No interpretation of this Agreement shall be allowed to find the City has agreed to binding arbitration. 30. No Third Party Beneficiaries. Solely the parties to this Agreement shall have rights and may make claims under this Agreement. There are no intended third party beneficiaries under this Agreement,and no third parties shall have any rights or make any claims hereunder. 31. Typewritten or Handwritten Provisions.Typewritten or handwritten provisions inserted or attached,and initialed by all parties, shall supersede all conflicting printed provisions. 32. Headings. The headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the interpretation of any provision hereof. 33. Merger Clause. These terms are intended by the parties as a complete, conclusive and final expression of all the conditions of their Agreement. No other promises, statements, 7 warranties,agreements or understandings,oral or written,made before or at the signing thereof, shall be binding unless in writing and signed by all parties and attached hereto. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their authorized representatives. CITY OF SAL ,• , • AS By: L��II�� M' hael Ow. chrage, City Manager Form: Legal Counsel PEPSI-COLA BOTTLING COMPANY OF SALINA,INC. By: gL v, AML r ka (name) yvta r[Le•1 Art, /Jit_G A4,- r (title) 8 EXHIBIT A DESCRIPTION OF FACILITIES 1. Bill Burke Park 2. Salina Field House 3. Salina Soccer Complex 4. Salina Municipal Golf Course 5. East Crawford Recreation Area 9 EXHIBIT B INSURANCE REQUIREMENTS (Contractor Services) Pursuant to Section 10 of the Agreement,the Contractor shall obtain,pay for, and maintain— and shall require each of its authorized subcontractors to obtain and maintain—for the duration of the Agreement, policies of insurance meeting the following requirements: 1. General Requirements. A. Additional Insured. With the exception of the workers' compensation and professional liability policies to be obtained by the Contractor hereunder, all policies shall name the City of Salina ("City"), its agents, representatives, officers, officials, and employees as additional insured(s). Insurance for the additional insured shall extend to Products/Completed Operations and be as broad as the insurance for the named insured, including defense expense coverage, and, with respect to the commercial general liability policy required hereunder, shall be endorsed to apply as primary and non-contributory insurance before any other insurance or self- insurance, including any deductible, maintained by, or provided to, the additional insured(s). B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver of subrogation in favor of the City, its agents, representatives, officers, officials, and employees. C. Claims Made Policies. If coverage is written on a claims-made basis for any of the policies required by this Agreement,the Contractor must maintain the coverage for a minimum of two (2) years from the date of final completion of all work under the Agreement. D. Premium and Deductible Expenses. The Contractor shall be responsible for all premiums and retention or deductible expense for any and all policies required by this Agreement. 2. Specific Coverage Requirements. A. Commercial General Liability ("CGL"). The Contractor shall maintain CGL coverage written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Products and Completed Operations, Contractual Liability, Independent Contractors and Advertising Injury. The policy limits shall not be less than the following: • Each occurrence $1,000,000 • General aggregate $2,000,000 • Personal and Advertising Liability $1,000,000 The policy shall contain an endorsement that modifies the general aggregate to apply separately to each project. The Contractor shall maintain the Products and Completed Operations liability coverage for a period of at least two (2) years after completion of all work under the Contract. 10 B. Business Automobile Liability ("BAL"). The Contractor shall maintain BAL coverage written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by the Contractor and include automobiles not owned by but used on behalf of the Contractor. The BAL policy limits shall not be less than the following: • Combined single limit $1,000,000 C. Workers' Compensation/Employer's Liability. The Contractor shall maintain workers' compensation and employer's liability coverage with policy limits not less than the following: • Workers' Compensation (Coverage Part A) o Statutory • Employer's Liability (Coverage Part B) o $100,000 each accident o $500,000 disease—policy limit o $100,000 disease—each employee 11