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BEVERAGE AGREEMENT (10 YEAR) BEVERAGE AGREEMENT BETWEEN THE CITY, COCA-COLA ENTERPRISES, INC. AND TARPON SPRINGS COCA-COLA BOTTLING COMPANY SECTION 1. SECTION 2. SECTION 3. SECTION 4. SECTION 5. SECTION 6. SECTION 7. SECTION 8. SECTION 9. SECTION 10. SECTION 11. SECTION 12. SECTION 13. SECTION 14. SECTION 15. SECTION 16. SECTION 17. SECTION 18. SECTION 19. SECTION 20. SECTION 21. SECTION 22. SECTION 23. SECTION 24. SECTION 25. SECTION 26. SECTION 27. SECTION 28. SECTION 29. SECTION 30. SECTION 31. SECTION 32. SECTION 33. SECTION 34. SECTION 35. SECTION 36. SECTION 37. tiJ TABLE OF CONTENTS BOTTLER EXCLUSIVE RIGHTS TERM ANNUAL FEE/BOTTLER SUPPORT TERRITORY EXCLUSIVITY CATEGORY EXCLUSIVITY ACCESS TO CITY MARKS AND LOGOS SIGNAGE REQUIREMENTS AND LOCATIONS POINTS OF SALE SAMPLING/PROMOTIONAL OPPORTUNITIES EMPLOYEE RECOGNITION PROGRAMS VISITOR VENDING PROMOTIONS CAP IT AL IMPROVEMENTS FUND-RAISING PROMOTIONS CO-SPONSORED LEAGUE SUPPORT BEACHSIDE VEND FRONTS RECYCLING PROMOTION PRIORITIES HOLD HARMLESS AGREEMENT WORKERS ' COMPENSATION AGREEMENT INSURANCE CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS MAINTENANCE OF VENDING MACHINES AND OTHER EQUIPMENT TERMINATION UPON DEF AUL T COMPLIACNE WITH LAWS REMOV AL OF VENDING MACHINES AND OTHER EQUIPMENT AND LOSS RIGHTS AFTER TERMINATION ASSIGNING AS BREACH WAIVER OF CLAIM AGAINST CITY TERMS BINDING ON SUCCESSORS CONFLICT OF INTEREST PHOTOGRAPHY NON-DISCLOSURE RELEASES ALCHOLIC BEVERAGES CUMULA TIVE REMEDIES WAIVER OF BREACH FORCE MAJEURE- UNAVOIDABLE DELAYS TAXES NOTICE SECTION 38. SECTION 39. SECTION 40. SECTION 41. SECTION 42. SECTION 43. SECTION 44. SECTION 45. SECTION 46. SECTION 47. SECTION 48. SECTION 49. ATTACHMENT "A" ATTACHMENT "B" ATTACHMENT "C" ATTACHMENT "D" ATTACHMENT "E" ATTACHMENT "F" ATTACHMENT "G" ATTACHMENT "H" A TT ACHMENT "I" IJO ATTORNEY'S FEE HOLDOVER CONTROLLING LAW AND VENUE SECTION TITLES TIME OF ESSENCE SURVIVAL OF INDEMNITIES NON-LIABILITY OF CITY OFFICIAL, EMPLOYERS OR AGENTS AGREEMENT IN WRITING PARTIAL INVALIDITY AGREEMENT IN COUNTERPARTS ENTIRETY PROHIBITION ON DOUBLE FUNDING RECOMMENDED BEVERAGE PLACEMENTS CONCESSION AREAS OWNED AND OPERATED BY THE CITY CASH VALUE SUPPORT SUMMARY CITY OF CLEARWATER CO-SPONSORED LEAGUES SPECIAL EVENTS AND LEASED PROPERTIES VENDING RATES AND COMMISSION REVENUE INCENTIVE SCHEDULE FULL SERVICE VENDING COMMISSION SAMPLE BEACH VEND FRONT 2 BEVERAGE AGREEMENT BETWEEN THE CITY, COCA-COLA ENTERPRISES INC., AND TARPON SPRINGS COCA-COLA BOTTLING COMPANY THIS AGREEMENT ("Agreement") is made and entered into effective June 1, 2001, by and between the City of Clearwater, Florida, a municipal corporation of the state of Florida (herein referred to as "City"), Coca-Cola Enterprises Inc. ("CCE") Florida Division, 100 Tampa Oaks Blvd., Suite 350, Tampa, FL, and Tarpon Springs Coca-Cola Bottling Bottler ("Tarpon Springs"), a corporation. At times herein, CCE and Tarpon Springs are referred to collectively as "Bottler")Bottler. WHEREAS, City has a substantial financial investment in the development of its area; and City currently operates and maintains 1069 acres of parks and recreation areas; and City is responsible for libraries, police and fire stations, and other facilities; and City wishes to provide its citizens with quality maintenance, security and timely replacement of recreation amenities; and Bottler wishes to establish a beverage marketing alliance with City for the sale of beverages and the sponsorship of amenities and improvements. NOW, THEREFORE, for and in consideration of the promises and covenants hereinafter contained and intending to be legally bound, the parties covenant and agree as follows: SECTION 1. BOTTLER EXCLUSIVITY RIGHTS City, in consideration of the Agreement hereinafter stated, grants to Bottler for the purposes stated herein, rights and privileges to certain Territory Exclusivity (defined below), Category Exclusivity (defined below), use of City logo and marks, signage, access to points of sale, access to special City held events, and provisions of exclusive vending locations on City property as further described herein. A. Bottler designates CCE's St. Petersburg Cold Drink Manager for all operational issues and Area Channel Manager for all administrative issues who shall represent it and be Bottler's sole contact and representative in all consultations with City during the performance and implementation of this Agreement throughout the entire term of the Agreement (the Bottler may assign a qualified designee to represent it and must notify the City of any changes prior to the implementation). B. City hereby designates the City Manager - or his/her appointee - who shall represent it and be its sole contact and agent in all consultations with Bottler during the performance and implementation of this Agreement throughout the entire term of the Agreement (excepting city officials such 3 IJ>!J as the City Attorney, Parks and Recreation Director, or other officials as designated by the City Manager). C. Both parties recognize that position and/or job titles may change during the term of this agreement. SECTION 2. TERM Subject to Section 3, Subsection C.2.c, the term of this Agreement ("Term") shall be for 10 years from the date of this Agreement, unless sooner terminated as herein provided. As used herein, the term "Agreement Year" shall mean each 12 month period during the Term, commencing on the date of this Agreement SECTION 3. ANNUAL FEE/BOTTLER SUPPORT A. Commissions City shall earn commissions (the "Commissions") on all full-service Beverage vending sales hereunder based on the commission rates and vend prices set forth in Attachment F. Commissions will be paid on net revenues collected by the Bottler. Commissions will be paid as set forth in Subpart C, below. B. Incentive Revenues City shall earn "Incentive Revenues" as set forth in Attachment G based on the total volume of physical cases of Bottler Bottle/Can Products (defined below) which are either: (i) purchased by City for sale at the City Properties; or (ii) vended through Bottler's full service venders as set forth below.. Incentive Revenues will be paid as set forth in Subpart C, below. C. Payment of Commissions and Incentive Revenues Commissions and Incentive Revenues shall be earned over the year and paid subject to the following conditions: 1. A~reement Years One throueh Five (a.) Years One and Two The amount of Commissions and Incentive Revenues paid for Agreement Year One and for Agreement Year Two will be fixed at $154,990 per year, payable to City in arrears in equal quarterly installments throughout Agreement Years One and Two, respectively (the "Year One Fixed Payment" and the "Year Two Fixed Payment"). Within thirty (30) days from the end of Agreement Year One, the Year One Fixed Payment will be reconciled against the actual amounts earned by City in Agreement Year One. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such 4 (}tJ reconciliation reveals an overpayment, amount ofthe shortfall (the "Year One. Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Three as set forth in Subsection C.l.b, below. Similarly, within thirty (30) days from the end of Agreement Year Two, the Year Two Fixed Payment will be reconciled against the actual amounts earned by City in Agreement Year Two. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Two Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Four as set forth in Subsection C.l.b, below. (b.) Years Three and Four The amount of Commissions and Incentive Revenue paid for Agreement Year Three shall be referred to as the "Year Three Payment" and shall equal the sum of: (a) $154,990, less (b) the amount of any Year One Shortfall, if any. Payment of the Year Three Payment shall be made in arrears in equal quarterly installments during Agreement Year Three. Within thirty (30) days from the end of Agreement Year Three, the amount of the Year Three Payment shall be reconciled against the actual amounts earned by City during Agreement Year Three. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Three Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Five as set forth in Subsection C.l.c, below. Similarly, the amount of Commissions and Incentive Revenue paid for Agreement Year Four shall be referred to as the "Year Four Payment" and shall equal the sum of: (a) $154,990, less (b) the amount of any Year Two Shortfall, if any. Payment of the Year Four Payment shall be made in arrears in equal quarterly installments during Agreement Year Four. Within thirty (30) days from the end of Agreement year Four, the amount of the Year Four Payment shall be reconciled against the actual amounts earned by City during Agreement Year Four. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Four Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Five as set forth in Subsection C.1.c, below. (c.) Year Five The amount of Commissions and Incentive Revenue paid to City for Agreement Year Five (the "Year Five Payment") shall not be 5 fP fixed in advance, but shall instead equal the sum of: (a) the amount of Commissions and Incentive Revenue actually earned by City in Agreement Year Five, less (b) the amount ofthe Year Three Shortfall, if any, less (c) the amount of the Year Four Shortfall, if any. Payment of the Year Five Payment shall be made on or about thirty (30) days from the end of Agreement Year Five. In the event that the amount of the Year Five payment, calculated as set forth above, is negative (a "Year Five Shortfall"), the Year Five Shortfall shall be reconciled in Agreement Year Ten as set forth in Subsection C.2.c, below. 2. Aereement Years Six throu1!h Ten (a.) Years Six and Seven The amount of Commissions and Incentive Revenues paid for Agreement Year Six and for Agreement Year Seven will be fixed at $154,990 per year, payable to City in arrears in equal quarterly installments throughout Agreement Years Six and Seven, respectively (the "Year Six Fixed Payment" and the "Year Seven Fixed Payment"). Within thirty (30) days from the end of Agreement Year Six, the Year Six Fixed Payment will be reconciled against the actual amounts earned by City in Agreement Y ear Six. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Six Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Eight as set forth in Subsection C.2.b, below. Similarly, within thirty (30) days from the end of Agreement Year Seven, the Year Seven Fixed Payment will be reconciled against the actual amounts earned by City in Agreement Year Seven. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Seven Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Nine as set forth in Subsection C.2.b, below. (b). Years Eieht and Nine The amount of Commissions and Incentive Revenue paid for Agreement Year Eight shall be referred to as the "Year Eight Payment" and shall equal the sum of: (a) $154,990, less (b) the amount of any Year Six Shortfall, if any. Payment of the Year Eight Payment shall be made in arrears in equal quarterly installments during Agreement Year Eight. Thereafter, the amount of the Year Eight Payment shall be reconciled against the actual amounts earned by City during Agreement Year Eight. If such 6 P'O reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Eight Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Ten as set forth in Subsection C.2.c, below. Similarly, the amount of Commissions and Incentive Revenue paid for Agreement Year Nine shall be referred to as the "Year Nine Payment" and shall equal the sum of: (a) $154,990, less (b) the amount of any Year Seven Shortfall, if any. Payment of the Year Nine Payment shall be made in equal quarterly installments during Agreement Year Nine. Thereafter, the amount of the Year Nine Payment shall be reconciled against the actual amounts earned by City during Agreement Year Nine. If such reconciliation reveals an underpayment, any additional payments earned will be paid to City forthwith. If such reconciliation reveals an overpayment, amount of the shortfall (the "Year Nine Shortfall") shall be deducted from subsequent amounts earned in Agreement Year Ten as set forth in Subsection C.2.c, below. (c.) Year Ten The amount of Commissions and Incentive Revenue paid to City for Agreement Year Ten (the "Year Ten Payment") shall not be fixed in advance, but shall instead equal the sum of: (a) the amount of Commissions and Incentive Revenue actually earned by City in Agreement Year Ten, less (b) the amount of the Year Eight Shortfall, if any, less ( c) the amount of the Year Nine Shortfall, if any, less (d) the amount of the Year Five Shortfall, if any. Payment of the Year Ten Payment shall be made on or about thirty (30) days from the end of Agreement Year Ten. In the event that the amount of the Year Ten payment, calculated as set forth above, is negative (a "Year Ten Shortfall"), the parties agree that the Term will then be extended by the time period necessary for City to fully earn the amount of the Year Ten Shortfall. D. Reports Bottler shall to provide the City an annual audited commission and an audited incentive report that provides a compilation of all beverages purchased as a part of this Agreement and be attested by a Certified Public Accountant. E. Attachment C For purposes of illustration only, and subject to the conditions set forth in this SECTION 3, Attachment "C" provides cash value support summary. 7 t>> SECTION 4. TERRITORY EXCLUSIVITY City grants to Bottler "Territory Exclusivity," subject to the limitations set forth herein, including the limitations set forth under "Category Exclusivity" defined in Section 5 below. For the purposes of this Agreement, "Territory Exclusivity" is defined as exclusivity as to all commercial properties owned by City and within the City limits, including City parks & recreation facilities, City offices, City controlled special events, other City owned public and municipal facilities (the "City Properties"). SECTION 5. CATEGORY EXCLUSIVITY City grants to Bottler "Category Exclusivity," subject to the limitations set forth herein, including the limitations set forth under "Territory Exclusivity" defined in Section 4 above. For the purposes of this Agreement, "Category Exclusivity" is defined as insuring that the only Beverages sold, sampled or made available in all City Properties during the Term are Bottler's Products. All Beverage vending on any City Property shall be pursuant to Bottler's full service vending program as set froth herein. For purposes of this Agreement, the term "Beverages" shall mean all carbonated and non-carbonated, non-alcoholic soft drinks, juices, juice drinks, teas, isotonics, water, frozen beverages, iced coffees and new products introduced. Frozen beverages shall not include ice cream and frozen yogurts. Beverages do not include hot teas, hot coffee products or fresh squeezed lemonade. "Bottler Products" means all Products sold or marketed by Bottler. "Bottler Bottle/Can Products" shall mean all Bottler Products sold in bottles, can or other packages in ready-to-drink form. "Bottler Fountain Products" shall mean all Bottler Products served through soda fountain dispensing equipment. City agrees to purchase all its requirements for Bottler Products, trademarked cups and lids, postmix, premix and C02 from Bottler. City further agrees that all fountain-dispensed Beverages (if any) will be dispensed in cups which shall bear the trademarks of the Bottler Products. No other trademarked cups, coolers or containers will be permitted. Bottler shall offer competitive wholesale pricing for product and ancillary purchases based on current market pricing. No outside purchases of any kind will be permitted, unless written approval of the Bottler. SECTION 6. ACCESS TO CITY MARKS AND LOGOS Bottler may use the official City logos and trademarks. Bottler will consult with City prior to the use of any City logos and trademarks and shall obtain City's prior written approval before using any ofthese logos and trademarks, which approval City shall not umeasonably withhold. SECTION 7. SIGNAGE REQUIREMENTS AND LOCATIONS City, through its entitlement process, will work with Bottler to develop a mutually agreed upon signage program consistent with the Clearwater Code provisions governing signs. City shall provide Bottler, at the City's sole discretion, with signage opportunities at properties owned and controlled by City and within City limits of City, including, but not limited to parks and recreation facilities and concession stands 8 ;)I) Bottler represents and warrants that all of its best efforts at signage will be environmentally sensitive, tastefully designed, promote an enhanced quality of life and comply with City ordinances and regulations. SECTION 8. POINTS OF SALE City shall provide Bottler with the following points of sale for its Bottler Products: (a.) All vending locations within City owned property (including, but not limited to, those identified in Attachment "A" hereto). Bottler shall have access to all vending machine locations designated by City. Bottler will loan to City, pursuant to the terms of Bottler' s equipment placement agreement, at no cost, Beverage vending machines for placement in such locations. Bottler agrees to reimburse City for electrical power hook up at mutually agreed upon new vender sites up to $300.00 per site which do not already have available hook up. All vender locations shall have 20- ounce carbonated and non-carbonated Beverage package availability, with product mix to be determined by Bottler. Bottler shall have the responsibility to connect the vending machines to the stub-out sites and City shall pay for any electrical/utility charges incurred for the operation of the vending machines; (b.) Subject to Subsection (c.), Bottler Products shall be the only Beverages sold, sampled or made available at all concession areas owned and operated by the City and all other locations within the City Properties at which Beverages are sold, sampled or made available (including, but not limited to, those identified in Attachment "B" hereto). All such locations which sell, sample or make available Beverages must sell 20-oz packages, with package mix to be determined by Bottler. City shall, and shall cause all of its concessionaires to, purchase all Bottler Products, cups, lids and carbon dioxide directly from Bottler for sale or use in the City Properties at Bottler's published wholesale pricing, set from time to time. (c.) With respect to existing commercial City tenants which currently serve competitive products and over which City cannot mandate Beverage selection, the City agrees to: (i) recommend, but not require, such tenants make available Bottler Products; and (ii) use its best efforts to ensure that any lease agreements entered into during the Term will require City tenants comply with the Category Exclusivity provisions of this Agreement. In addition, City will use its best efforts to ensure that those City Tenants currently exclusively serving Bottler Products remain exclusive upon renewal of their lease agreements, if such renewals occur during the Term. (Attachment "E"). ( d) Availability during or at City special events. City grants Bottler the exclusive right sell or make available Beverages and to participate creatively in all City events through Beverage sales, sampling activities, 9 ;>'J signage at mutually agreed upon locations and event marketing, all of which are subj ect to the prior written approval of City. No competitive Beverages shall be made available, sold or sampled in any City event. City will use its best efforts to mention Bottler in all news releases regarding these events that are sent to the press by City. City shall also give Bottler the first right-of-refusal to any opportunity for a non-alcoholic beverage Bottler to a City co-sponsored special event within the City limits of City (Attachment "E"). City shall also give Bottler 20 tickets/passes for access to all City held events, but not to private promoter events. The Bottler will provide for the City for each City-sponsored special event and each co-sponsored special event for which Bottler is the exclusive Beverage sponsor and supplier, the following: 1. Such special event trailers, barrel coolers, ice cart, reach-in coolers, etc., at no charge, as may be reasonably necessary. 2. Personal management of equipment and product delivery and equipment maintenance. 3. Bottler personnel at mutually agreed upon events requiring on-hand service. 4. Custom printed banners to promote each event. 5. Where appropriate, marketing exposure of up to 20 printed truck backs annually for mutually agreed upon events. 6. Bottler will, subject to availability, promote the City's mutually agreed upon special events by utilizing its local partnerships (examples include but are not limited to: vend and win promotions; brand discounts; Pinellas County School's marketing) 7. Bottler Product at no cost for hospitality, volunteer, and d dressing room trailers. 8. In the event the City hosts a national sports tournament or event that already has a national beverage sponsor, such event would be exempt from this agreement (it is anticipated that this may occur two to three times per year). 9. Cash sponsorship request shall be considered by the Bottler based on the volume potential of the event. SECTION 9. SAMPLING/AND PROMOTIONAL OPPORTUNITIES A. Sampline 10 f)Ij City shall provide Bottler with all necessary permits to allow Bottler to conduct its City approved sampling activities within the City limits of City. City will use its best efforts to obtain approval. Prior to the implementation ofthe sampling activities, Bottler will provide City with written notification of its intent to conduct sampling activities at a specific location at least 21 days prior to such event and obtain City's written approval before conducting such sampling activities. B. Promotions At Bottler's option, the City agrees to participate in two (2) mutually agreed to promotional activities each Agreement Year to promote the sale of Bottler Products at City Properties. The promotional activities may vary during the Term, and may include, but are not limited to, can panel promotions, tube inserts, Taste Challenge Booths and guest appearances. City and Bottler may elect to include Bottler's customers (pending such customer's approval) in such promotional activities. SECTION 10. EMPLOYEE RECOGNITION PROGRAMS The City and the Bottler recognize that the City's greatest resource is its employees. In order to promote professional behavior of all City employees, the Bottler will supply to the City the following employee recognition programs: (a.) The Bottler will supply to the City 50 vending certificates for every employee full service vender placed to receive product annually. (b.) The Bottler will execute four "enter to win" vender promotions annually (which may include, but not be limited to, event tickets, trademark gifts, free refreshment, etc.) at each employee vending location. (c.) The Bottler will provide a mutually agreed upon premium item for a Bottler sponsored employee of the month program. (d.) The Bottler will provide $200 annually to City for a City-planned and run "team recognition program." SECTION 11. VISITOR VENDING PROMOTIONS During the Term, Bottler shall run once each Agreement Year a special promotion targeted at City's visitors. Such promotions shall include, when available, prizes which are immediately redeemable within the City limits. Bottler may include its customers (with their approval), in such promotions. All such promotions shall be subject to authorization by local retail outlets. Examples may include, subject to availability: (a.) "Bring your winning sticker to Pier 60 concessions and receive a free Coke. " (b.) "Winner of a dinner cruise for two." 11 /)/J (c) "Winner oflaser tag for four." SECTION 12. CAPITAL IMPROVEMENTS The Bottler will make a one-time payment of $13,500 for a City capital improvement, provided such capital improvement offers Bottler (as determined in good faith by Bottler) an additional point of customer contact for the sale of Beverages. Examples of possible projects may include beach comfort stations, beachside lockers. SECTION 13. FUND-RAISING PROMOTIONS Subject to applicable law, Bottler will develop and execute one "fund-raising" promotion each Agreement Year pursuant to which a portion of the proceeds from the sale of certain Bottler Products will be donated to City-sponsored charitable organizations. The specific time periods for such promotion, the specific Bottler Products to be included, and the amount of proceeds available for donation shall be as determined by Bottler. Bottler may, at its option, include retailers of Bottler Products located within the City limits in such promotion. SECTION 14. CO-SPONSORED LEAGUE SUPPORT The Bottler shall be the exclusive Beverage sponsor and supplier for all City co- sponsored leagues identified in Attachment "D" (and any such leagues formed during the Term). All such leagues utilizing City operated athletic facilities shall comply with the Territory and Category Exclusivity provisions of this Agreement. In recognition of this exclusivity the Bottler shall provide the following: (a.) Within sixty (60) days from the execution of this Agreement, Bottler shall replace and install all scoreboards bearing trademarks of competitive beverages which are currently in place in City Properties with comparable new electronic scoreboards bearing Bottler's trademarks. City shall provide electric service and maintain the scoreboards. The City will acquire ownership of the above scoreboards at the end of the Term. (b.) Additional scoreboard requests for areas currently without scoreboards shall be considered by the Bottler based on the volume potential of the location. The City and Bottler shall mutually agree upon the type and condition of additional scoreboards. Scoreboards provided after Agreement Year one shall remain the property of the Bottler, with the City having the option to purchase the scoreboards based upon a prorated cost. THE PROVISION OF ALL SCOREBOARDS IS ON AN "AS IS" BASIS. SPONSOR HEREBY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANT ABILITY AND FITNESS FOR INTENDED USE, AND SPONSOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES. 12 ~ (c.) The Bottler shall donate up to $1,500 in donated product (based on wholesale pricing) annually to be utilized for co-sponsored league events. (d.) The Bottler shall provide an aggregate total of$4,OOO each Agreement Year as a Sponsorship Fee to be divided equally among all then-existing City co-sponsored leagues. SECTION 15. BEACH SIDE VEND FRONTS The Bottler will provide all beach areas identified in Attachment I (including all City owned beach areas on Clearwater Beach, Sand Key and Island Estates) with customized beachside vend fronts for all beach vendor placements. Additionally, the Bottler will provide the City with design specific kiosks to house vendors where mutually agreed upon by the City and the Bottler. The vendors may be customized with the City logo at the City's discretion. SECTION 16. RECYCLING PROMOTION The Bottler will design and provide the City with a mutually agreed to number of recycling receptacles to encourage recycling on the beach, in the City and staff buildings. SECTION 17. PRIORITIES In the event there are any conflicts or inconsistencies between this Agreement and Bottler's proposal, the terms of the Agreement shall govern. SECTION 18. HOLD HARMLESS AGREEMENT Bottler shall protect, defend, indemnify and save and hold harmless City, its officers, officials, and employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation, costs and fees of litigation of every nature) arising out of or in connection with Bottler's negligent performance or actions pursuant to this Agreement, or its failure to comply with any of its obligations contained in this Agreement, except to the extent such loss or damage was caused by the negligence or willful misconduct of City. SECTION 19. WORKERS' COMPENSATION INSURANCE Bottler shall maintain workers' compensation insurance in the amount and type required by law if applicable. Bottler shall require all its contractors and agents to provide such workers' compensation insurance for all of their employees. Bottler shall, upon request, furnish to City a certificate of waiver of subrogation under the terms of the compensation insurance and Bottler shall similarly require all its contractors and agents to waive subrogation. SECTION 20. INSURANCE 13 <<J In addition to the workers' compensation insurance and Bottler's covenant to indemnify City, Bottler shall obtain and furnish to City, a proof of comprehensive general liability insurance, including automobile liability coverage. Said policy shall indemnify Bottler, its officers, agents, employees, and City affiliated boards, while acting within the scope of their duties, against any and all claims arising out of or in connection with this Agreement, and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, including products/completed operations liability and blanket contractual liability, of$I,OOO,OOO per occurrence. If coverage is provided under a form, which includes a designated general aggregate limit, the aggregate limit must be no less than $1,000,000 for this Agreement. * Said policy shall name City, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to this Agreement shall be deemed excess coverage and that Bottler's insurance shall be primary. *Claims made by modified occurrence policies are not acceptable. Insurance companies must be admitted and licensed in Florida and have a Best's Guide rating of A-Class VII or better. SECTION 21. CERTIFICATES OF INSURANCE~ ADDITIONAL INSURED ENDORSEMENTS Bottler shall furnish to City, upon request, certificates of insurance and additional insured endorsements to each of Bottler's relevant insurance policies, evidencing the foregoing insurance coverages as required by this Agreement; said certificates shall: 1. provide the name and policy number of each carrier and policy; 2. shall state the policy; 3. shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days prior written notice to City; and shall state as follows: Bottler shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. The requirement for carrying the foregoing insurance coverages shall not derogate for the provisions for indemnification of City by Bottler under this Agreement. City or its representatives shall at times have the right to demand the original or a copy of all said policies of insurance which Bottler shall provide within fifteen (15) days of City's request. Bottler shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. City shall not be responsible for premiums or assessments on the policies. SECTION 22. MAINTENANCE OF VENDING MACHINES AND OTHER EOUIPMENT Bottler agrees to maintain its vending machines, signs and other equipment installed and/or operated pursuant to this Agreement in good order and repair at Bottler's own cost 14 40 and expense during the entire term of this Agreement. Bottler shall perform at its own cost and expense any required maintenance and repairs, and should Bottler fail, neglect or refuse to do so, City shall have the right to perform such maintenance or repairs for Bottler, and Bottler agrees to promptly reimburse City for the cost thereof. Provided, however, that City shall first give Bottler written notice of its intention to perform such maintenance or repairs for Bottler for the purpose of enabling Bottler to proceed with such maintenance or repairs at its own expense. City shall not be obligated to make any repairs to, or maintain, any vending machines, signs or other equipment installed and/or operated by Bottler pursuant to this Agreement. SECTION 23. TERMINATION UPON DEFAULT This Section covers default and termination of this Agreement for cause. (a) A "Default" shall be deemed to have occurred hereunder if: (i) Bottler defaults in the making of any of the annual payments required to be made by it by the dates specified in the Agreement and does not cure within ninety (90) days; OR (ii) (1) (2) (3) OR Either party defaults in the performance or observance of any other terms, covenant, condition or provision of this Agreement; Such default is of the kind which is curable or remediable; and Such default continues for a period of ninety (90) days after service of a notice of default, or, if the curing or the remedying of such default requires the doing of work or the taking of action which cannot with due diligence be completed in a ninety (90) day period, continues beyond such period following the end of the period of ninety (90) days after the service of a notice of default as is reasonably necessary (taking into account unavoidable delays) to do the work required or to complete such other action as is required to cure or remedy the default in question; (iii) Either party defaults in the performance or observance of any term, covenant, condition or provision of this Agreement and such default is not curable or remediable and is with respect to a substantial obligation of this Agreement, the non-defaulting party cannot be made whole therefor by the collection of money damages, and such default evidences a willful or negligent disregard by the defaulting party of its substantial obligations under this Agreement; OR f:D 15 (iv) There shall be filed against either party in any court pursuant to any statute either of the United States or of any state, apetition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or substantially all of said party's property, and within one hundred twenty (120) days of such filing said party fails to secure a discharge of such petition or the dismissal of such proceedings, or said party files a voluntary petition in bankruptcy or insolvency or for such reorganization or for the appointment of such a receiver or trustee or makes an assignment for the benefit of creditors or petitions for or enters into an arrangement for the benefit of creditors. (b) Within a reasonable time after the occurrence of any Default, the non- defaulting party shall have the right to give the defaulting party notice of intention to terminate this Agreement. Upon the effective date of such termination specified in such notice (which shall not be less than ten (10) days after giving of such notice), the term of this Agreement shall end as fully and completely as if that were the date herein fixed for the expiration of the term of this Agreement. No Default shall be deemed to have occurred under this Section until the expiration of ninety (90) days after giving of a notice of default notwithstanding the fact that the claimed default is not curable or remediable, so that the defaulting party will have an opportunity to initiate a judicial proceeding to determine whether the claimed default constitutes a Default hereunder. (c) Within ninety (90) days after this Agreement is terminated, Bottler shall remove all vending machines, and other equipment and signs that Bottler installed and/or operated pursuant to this Agreement if City so desires, except as expressly excepted by City in writing. (d) Notwithstanding any of the above, City may bring a separate action for any default in Bottler's payment of the required annual payments. SECTION 24. COMPLIANCE WITH LAWS Bottler shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state and county or municipal, relating to its actions under this Agreement whether such statutes, ordinances, regulations, and requirements are now in force or hereinafter enacted or whether or not in the contemplation of the parties. SECTION 25. REMOVAL OF VENDING MACHINES AND OTHER EOUIPMENT AND LOSS OF RIGHTS AFTER TERM Within ninety (90) days after this Agreement is terminated for any reason, Bottler shall remove all vending machines, and other equipment or signs that Bottler installed and/or operated pursuant to this Agreement if City so desires, except as 16 .04 expressly excepted by City in writing, and the Bottler retains the risk of loss and Sections 18-22 of this Agreement are restated herein not to the exclusion of other provisions surviving this Agreement. If Bottler fails to remove the above vending machines, signs, and equipment within this ninety (90) day period, City may: (a) Continue this Agreement in effect, in which event City shall be entitled to enforce all of its rights and remedies under this Agreement, including the right to recover the annual fee specified in this Agreement; or (b) Remove the above vending machines, signs and equipment at Bottler's sole cost and expense, and recover any amount necessary to compensate City for all detriment proximately caused by Bottler's failure to perform its obligations under this Agreement. In addition, all rights granted to Bottler under this Agreement including, but not limited to, Territory Exclusivity, Category Exclusivity, use of City logos and trademarks, in conducting sampling activities within the City limits of City and rights to participate in City events, shall cease upon the termination of this Agreement. Bottler agrees that immediately after termination of this Agreement, City shall have the right, and Bottler waives any claims against City, to enter into another similar type contract with a competitor of Bottler. SECTION 26. ASSIGNING AS BREACH Neither party shall encumber, assign, or otherwise transfer this Agreement, or any Right or interest in this Agreement, without the written consent of the other party. Consent by any party to one assignment or transfer to another person shall not be deemed to be a consent to any subsequent assignment or transfer to another person. Any encumbrance, assignment or transfer, without the prior written consent of the non-transferring party, whether it be voluntary or involuntary, by operation oflaw or otherwise, is void and shall, at the option of the non-transferring party, terminate this Agreement. SECTION 27. WAIVER OF CLAIMS AGAINST CITY Bottler hereby waives any claims against City, its officers, employees or agents for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement, or any part thereof or by any judgement or award in any suit or proceeding declaring this Agreement null, void or voidable or delaying the same or any part thereof from being carried out. The releases contained herein shall survive any termination of this Agreement. SECTION 28. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors and assigns. The provisions of this Section shall not be deemed as a waiver of any of the conditions against assignment hereinbefore set forth. 17 -'0 SECTION 29. CONFLICT OF INTEREST Bottler shall employ no City official nor any regular City employee in the work performed pursuant to this Agreement. No officer or employee of the City shall have any financial interest in this Agreement different in like and kind from any other employee of the City. Bottler warrants and covenants that no official or employee of City is interested, (1) has been employed or retained to solicit or aid in the procuring of this Agreement; or (2) will be employed in the performance of this Agreement without the immediate divulgence of such fact to the City Attorney or City Administrator. In the event City determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of the City, Bottler, upon request of City shall terminate such employment immediately. For breaches or violation of this Section, City shall have the right both to annul this Agreement without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. SECTION 30. PHOTOGRAPHY City has the right for its own purposes, or may grant permits to persons or corporations engaged in the production of still or motion pictures, television programs, advertising and related activities, to take photographs or motion pictures of Bottler's activities, vending machines, signs, and other equipment installed and/or operated by Bottler pursuant to this Agreement, provided City obtains Bottler's prior approval. However, City shall not be required to pay Bottler any compensation for such activities. SECTION 31. NON-DISCLOSURES/PRESS RELEASES Bottler shall consult with City and obtain City's prior written approval before issuing any press releases or otherwise making public statements with respect to this Agreement or the transactions contemplated hereby. SECTION 32. ALCOHOLIC BEVERAGES Notwithstanding anything to the contrary, the sale of alcoholic beverages by Bottler within the City limits of City is expressly forbidden. SECTION 33. CUMULATIVE REMEDIES The remedies given to the parties in this Agreement shall not be exclusive but shall be cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this Agreement. SECTION 34. WAIVER OF BREACH The waiver of any breach of any of the provisions of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such breach or a waiver of any subsequent breach either of the same or another provision ofthis Agreement. 18 4J SECTION 35. FORCE MAJEURE - UNAVOIDABLE DELAYS Should the performance of any such act required by this Agreement to be perfonned by either City or Bottler be prevented or delayed by any reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of the delay will be excused. Provided, however, that nothing contained in this Section shall excuse the prompt payment of the annual fee by Bottler as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, City or Bottler, required to perform the act. SECTION 36. TAXES Any federal, state or local taxes levied upon this Agreement, the transaction, the signage, vending machines, or other equipment installed and/or operated pursuant to this Agreement shall be borne by Bottler. These taxes shall include, but not be limited to, sales taxes and property taxes. SECTION 37. NOTICE Any written notice, given the terms of this Agreement, shall be either delivered personally or mailed, certified mail, postage prepaid, addressed to the party concerned, as follows: CITY: City of Clearwater Director, Parks and Recreation Department 100. S. Myrtle Avenue Clearwater, FL 33756 BOTTLER: Coca-Cola Enterprises Area Channel Manager 23091 Cortez Blvd. Brooksville, FL 34601 With a copy sent to: The Public Enterprise Group 18685 Main St., Ste. A #630 Huntington Beach, CA. 92648 SECTION 38. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, the primary party shall bear all attorney's fees, costs and expenses. SECTION 39. HOLDOVER Should Bottler hold over and continue to leave its vending machines, signs, or other equipment installed and/or operated pursuant to this Agreement after expiration of 19 ..1J4 the term of this Agreement or any extension thereof they shall become the property of City without cost to the City. SECTION 40. CONTROLLING LAW AND VENUE This Agreement shall be deemed to be made in, and the rights and liabilities of the parties, and the interpretation and construction of this Agreement, determined in accordance with the laws of the State of Florida. Any controversy arising out of or under this Agreement, if litigated, shall be adjudicated in a court of competent jurisdiction in County of Pin ell as. SECTION 41. SECTION TITLES The section titles in this Agreement are inserted only as a matter of convenience and for reference, and in no way define limit or describe the scope of intent of this Agreement or in any way affect this Agreement. SECTION 42. TIME OF ESSENCE Time is of the essence with respect to all provisions of this Agreement in which a definite time for performance is specified including, but not limited to, the annual payments by Bottler and the expiration of this Agreement. SECTION 43. SURVIVAL OF INDEMNITIES Termination of this Agreement shall not affect the right of City to enforce any and all indemnities given or made by Bottler under this Agreement, nor can it affect any provision of this Agreement that expressly states that it shall survive termination thereof. SECTION 44. NON-LIABILITY OF CITY OFFICIAL. EMPLOYEES OR AGENTS No elective or appointed City or City affiliated board, commission or member thereof, or officer, volunteer, employee or agent of City shall be personally liable to Bottler, its successors and assigns, in the event of any default or breach by City under this Agreement, its successors and assigns, or for any obligation of City under this Agreement. SECTION 45. AGREEMENT IN WRITING This Agreement contains and embraces the entire agreement between the parties hereto and neither it nor any part of it may be changed, altered, modified, limited or extended orally or by any agreement between the parties unless such agreement be expressed in writing, signed and acknowledged by City and Bottler, or their successors in interest. SECTION 46. P ARTIAL INVALIDITY 20 /4J Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. SECTION 47. AGREEMENT IN COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same document. SECTION 48. ENTIRETY The foregoing, and Exhibits "A-I" attached hereto, set forth the entire Agreement between the parties. SECTION 49. PROHIBITION ON DOUBLE FUNDING If any tenant, concessionaire or contractor of City is subject to a separate arrangement or agreement with Bottler or The Coca-Cola Company pursuant to which such entity sells Bottler Products, any volume attributable to such entity shall not be included in the calculation of any Commissions, Revenue Incentives or other funding payable hereunder to City, and City shall not be entitled to receive any such funding on sales volume attributable to such entity. SECTION 50. WITHOUT CAUSE TERMINATION Notwithstanding any other provision in this agreement and in addition to any other remedy available to City, the City shall have the option to terminate without cause but for a public purpose consistent with the City Charter with 90 days written notice to Bottler. Provided, however, should City terminate this agreement pursuant to this section, City will not enter into a similar Agreement with a beverage competitor of Bottler for the duration of the Term. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written. COCA-COLA ENTERPRISES, INC. ~;,.~r~ TARPON SPRINGS COCA-COLA BOT ING BOTTLER 21 ~ AND AND By: Its: Division Chief Financial Officer/ Director of Finance Countersigned: Approved as to form: Attest: wc:~ , e C. Hayman Assistant City Attorney -,- . 22 ;ttJ Attachment "A" Recommended Beverage Placements Multiple packages may vend out of one machine Coca-Cola Coca-Cola Dasani PowerAde 20 oz. 12 oz. 20 oz. 20 oz. Location Sand Key Sailing Center Police Dept. X Breakroom Air Park X X Vend Area Municipal Marina X X X X Outside Bayfront Tennis Center X X By Court McMullen Tennis Center X X X Vend Area Eddie C. Moore (East and West) X X X X At Building Cliff Stephen's Park X X X X New Kiosk Wood Valley Recreation Center X X X X At Building Moccasin Lake X X Vend Area Morningside Recreation & Aquatic Center X X X X Pool/Inside Clearwater Beach Recreation & Aquatic Center X X X X Pool/Inside Holt Avenue Pool Courtney Campbell Causeway Beach Sid Lickton Park X X At Building MSB Parking X Parking Garage Joe DiMaggio Sports Complex Fire Stations Parking Lots X X X Main Entrances Ross Norton Recreation & Aquatic Center X By Pool MLK Community Center X X X Vend Area Employee Breakrooms (Various Locations) X X X Breakrooms Every Floor Kings Highway Recreation Center X X X X Vend Area Leagues X X X Concessions Countryside Recreation Center Countryside Community Park Sports Complex 23 · Eddie C. Moore Sports Complex . Countryside Community Park . Sid Lickton Park Attachment "B" Concession Areas Owned by the City 24 as a ue uppor ummary 20,000 Cases 30,000 Cases 45,000 Cases Commissions $68,718 $111 ,240 $185,400 Revenue Incentive $27 ,495 $54,990 $107,478 Retail Fund Raiser Rebate $10,000 $10,000 $10,000 Product Donation/Special Events $2,000 $2,000 $2,000 Product Donation/City $500 $500 $500 Total Cash/Product Sponsorship $108,713 $178,730 $305,378 Lea1!ue Support Team Cash Sponsorship $3,500 $3,500 $3,500 Scoreboards $37,500 $37,500 $37,500 Product Donation $1,500 $1,500 $1,500 Total Lea1!ue Support $42,500 $42,500 $42,500 Advertisin2 Truck Backs $20,000 $20,000 $20,000 Banners $2,550 $2,550 $2,550 Retail Fund Raiser $500 $500 $500 Special Event Promoting $500 $500 $500 Total Advertisin1! Value $23,550 $23,550 $23,550 Employee Pro1!rams Vend Certificates $1,250 $1,250 $1,250 Vend Promotion $2,500 $2,500 $2,500 Emp.OfMonth $800 $800 $800 Team ofOuarter $200 $200 $200 Total Employee Pro1!rams $4,750 $4,750 $4,750 Marketin2 Lockers* $13,500 $13,500 $13,500 Vending Promotion $3,000 $3,000 $3,000 Recycle Barrels* $2,000 $2,000 $2,000 Vend Fronts* $2,300 $2,300 $2,300 Kiosks* $1,000 $1,000 $1,000 Total Marketin1! Value $21,800 $21,800 $21,800 First Year Value $201,313 $271,330 $397,978 10 Year Value $1,843,930 $2,544,100 $3,810,580 Attachment "C" C h V I S tS 25 Attachment "D" City of Clearwater Co-S ponsored Leagues as of March 20, 2001 Youth Baseball · Countryside Little League · Clearwater American Little League . Clearwater National Little League · Clearwater East/Safety Harbor Youth Football · Countryside Junior Cougars . Greenwood Panthers · Clearwater For Youth Junior Tornadoes Youth Soccer · Countryside Lighting . Clearwater Chargers · Clearwater Soccer Association Youth Softball . Clearwater Bullets . Clearwater Lady Bombers · Clearwater For Youth Recreation Softball Youth Swimmine · Clearwater Aquatics Team 26 Attachment "E" Expected Rights Leased City Properties and Co-Sponsored Special Events Coca-Cola will have the right of first refusal for the following: A. Current and future Special Events co-sponsored by the City but negotiated on behalf of City or Bottler by a private party to include but not limited to: . Saturday in the City/Farmer's Market . Shell Holiday Bridge Run . Jazz Holiday . Times' Turkey Trot . MLK Jr. Parade . Charlie Daniel's Concert . North Greenwood Mayfest B. Current and future tenants of City controlled properties to include but not limited to: . Clearwater Air Park . Clearwater Municipal Marina . Harborview Center . Pier 60 . Glen Oaks Golf Course . Clearwater Country Club . Clearwater Executive Golf Course . Chi Chi McMullen Golf Course . Boat Ramps . South Beach Concessions . Long Center C. Current and future leagues utilizing City controlled athletic Fields. 27 All rights as outlined in City Controlled Properties & Special Events will apply once Coca-Cola's right of first refusal has been successfully negotiated. Attachment "F" Full Service Commission on Package Case Mix V end Rate Net Sales 12 oz. CSD 50% $0.60 40% 20 oz. CSD 33% $1.00 34% PowerAde 20 oz. 8% $1.00 25% Dasani 20 oz. 7% $1.00 25% Fruitopia 20 oz. 3% $1. 00 25% Based on the above mix, vend rate and commission structure this goal may be achieved with approximately 16,400 vended cases, however, net revenues can be affected by a change vend rates, product mix, volume, taxes and cash collected. 28 Attachment "G" Guaranteed cash sponsorship shall be based on 29,999 total Bottle/Can cases sold to the City of Clearwater and it's affiliates. Case Thresholds Per Case Rebate Incremental Earnings Total 1 - 9,999 $1.00 $9,999.00 10,000 - 14,999 $1.50 $7,500.00 $17,499.00 15,000 - 19,999 $2.00 $10,000.00 $27,499.00 20,000 - 24,999 $2.50 $12,500.00 $39,999.00 25,000 - 29,999 $3.00 $15,000.00 $54,999.00 30,000 - 34,999 $3.50 $17,500.00 $72,499.00 35,000 - 39,999 $3.50 $17,500.00 $89,999.00 40,000 - 44,999 $3.50 $17,500.00 $107,499.00 45,000 + $3.50 * Affiliates are determined as those venues contractually obligated by the City to honor our corporate partnership. 29 Attachment "H" Full Service Vending Commissions V end Rate % Commission 12 ounce Carbonated Soft Drinks $0.60 40% 20 ounce Carbonated Soft Drinks $1.00 34% 20 ounce Fruitopia $1.00 25% 20 ounce Dasani Water $1.00 25% 12 ounce Dasani Water $0.60 40% 20 ounce PowerAde $1.00 25% Commissions subject to change in year five up to but not to exceed standard market increases. 30 Attachment "I" Beachside Vent Front _not ..' . 1 .. . \ :: ./'.. \ ,.' Coca-Cola will provide Clearwater Beach with Beachside vent fronts for Beach vender placements. ... 31