EXCLUSIVE NON-ALCOHOLIC BEVERAGE VENDING AGREEMENTEXCLUSIVE NON-ALCOHOLIC BEVERAGE
VENDING AGREEMENT
This Agreement ("Agreement") is made and entered into�1 ����`Effective
Date") by and between the City of Clearwater, Florida, a municipal corporation of
the state of Florida, whose address is 112 S. Osceola Avenue, Clearwater,
Florida 33756 ("City") and Coca-Cola Refreshments USA, Inc. , a Delaware
corporation, whose address is 2950 Gandy Bridge Blvd, St. Petersburg, FL
33702 ("Vendor") (each individually referred to herein as "Party" or collectively as
the "Parties").
RECITALS
WHEREAS, the City currently operates and maintains 1069 acres of parks
and recreation areas, MOL, as well as other City-owned facilities such as
libraries, police and fire stations within its corporate boundaries ("City Facilities"),
and,
WHEREAS, the City wishes to provide quality amenities to its citizens in the
course of their utilizing City Facilities; and
WHEREAS, the City has issued a request for proposals ("RFP") to identify a
qualified beverage vendor to provide full service beverage vending machines and
products within City Facilities as it deems appropriate; and
WHEREAS, Vendor successfully responded to the RFP and wishes to
provide its products and services to City Facilities and the citizens of Clearwater.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt of which are
hereby acknowledged, the Parties agree as follows:
1.0 DEFINITIONS
1.1 Beverage(s): Beverage or Beverages shall mean all nonalcoholic
beverages of any kind including concentrated energy drinks in small servings and
the pre-mix and/or post-mix syrups used to prepare fountain Beverages.
Beverage or Beverages do not include milk, fresh brewed coffee, fresh brewed
tea, freshly squeezed juice and water drawn from the public water supply.
1.2 City Events: City Events include events: a) hosted by the City of
Clearwater, b) produced by the City of Clearwater, and c) Special Events in
which the City retains the right to provide non-alcoholic Beverages, further
defined as follows:
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a. Hosted events include, but are not limited to, events that take place at City
Facilities, including recreation center rentals, conferences, meetings and
employee events.
b. Produced events are special events that are produced by the City of
Clearwater Parks and Recreation Department. In FY 2010-2011, these
events included Clearwater Sea-Blues Festival, Fun `n Sun Festival
(Smooth Jazz, QFest and Country), Hispanic Heritage Festival and
Clearwater Celebrates America. These are subject to change annually.
Annually, the City will submit the list of events to Vendor upon City Council
approval. The City reserves the right to modify the list at any time
throughout the Agreement Term.
c. Special Events in which the City retains the right to provide non-alcoholic
Beverages. As per the City contractual relationships, the City has retained
rights to provide non-alcoholic Beverages at select events. In FY2010-
2011, the events were USF Series, Christmas Under the Oaks and Miles
for Hope. These are subject to change annually. Annually, the City will
submit the list of events upon City Council approval. The City reserves
the right to modify the list at any time throughout the Agreement Term.
1.3 City Facilities: City Facilities includes property owned and operated by
the City of Clearwater. For purposes of this Agreement, City Facilities does not
include properties owned by the City of Clearwater, but operated by third parties.
1.4 Concessionaires: Concessionaires are organizations that have
permission to sell beverages utilizing City Facilities and/or City concession
buildings. The current 2011 Concessionaires are Blazin' Ravenz, Clearwater
Aquatic Team, Clearwater Bullets, Clearwater Little League, Clearwater Lady
Bombers, Clearwater Youth Lacrosse, Countryside Jr Cougars, Countryside Little
League, Clearwater Jr Tornados, Greenwood Panthers, Clearwater Basketball
Club and Clearwater Chargers. Presently, Concessionaires sell beverages at
Eddie C. Moore Softball Complex, Joe DiMaggio Sports Complex and Sid Lickton
Fields. The City expressly reserves the right to add or delete Concessionaires.
1.5 Direct Purchase Product: Discounted product provided by the Vendor to
the City and its Concessionaires for consumption or resale.
1.6 Permitted Beverage Products: Permitted Beverage Products are
beverages that have approval by the City of Clearwater, as may be amended
from time to time upon mutual written agreement of the Parties and that are
purchased directly from Bottler or sold through vending machines owned and
stocked exclusively by Bottler.
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1.7 Pricing Schedule: The Pricing Schedule, Exhibit A, contains a list of
proposed Permitted Beverage Products with corresponding prices that will apply
to direct purchases made by the City of Clearwater and its Concessionaires.
1.8 Licensing Payment: The Licensing Payment is the annual payment
rendered to the City of Clearwater by the Vendor in return for the rights
articulated in the Scope of Contract (2.0). The first payment will be made at the
Effective Date of the Agreement and will be due annually at the anniversary of
the Effective Date.
1.9 Agreement Year: Shall mean each twelve-month period during the Term
beginning with the first day of the Term.
2.0 SCOPE OF CONTRACT
2.1 Services: Vendor shall provide full-service vending machine services for
the sale of Permitted Beverage Products at designated City Facilities. Vendor's
services shall include, but not be limited to, furnishing product (as required),
stocking vending machine equipment, collecting all revenue, servicing and
maintaining equipment.
2.2 Exclusive Rights: Vendor shall have the exclusive right to make
Permitted Beverage Products available for sale and distribution at designated
locations at City Facilities through full-service vending locations (Exhibit B), and
City agrees that Vendor's products will be the exclusive Permitted Beverage
Products sold, dispensed, served or sampled at all City Events and/or City
Facilities when such products are being sold or consumed by the City of
Clearwater and its Concessionaires. City-owned properties that are operated by
third parties and are therefore not included in the definition of City Facilities for
purposes of this Agreement shall not be subject to Vendor's Exclusive Rights.
2.3 Exception to Exclusivity: This provision does not apply to Permitted
Beverage Products, or any other products, that are purchased by employees of
and visitors to City Facilities for personal consumption.
2.4 Direct Purchase Requirements: City agrees that when City or its
Concessionaires serve, distribute or sell Permitted Beverage Products at City
Events and/or City Facilities, City or its Concessionaires shall purchase
Permitted Beverage Products directly from Vendor for orders in excess of $10.
Vendor understands that this obligation does not apply to persons or
organizations over which the City has, for whatever reasons, no control.
2.5 Access to City Marks and Logos: Vendor may use the official City
logos and trademarks on a royalty free basis, exclusive for Beverages, in
connection with the promotion of Vendor's Beverages. Vendor shall obtain the
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City's written approval in accordance with the City of Clearwater Code of
Ordinances, City policies, or other applicable rules and guidelines.
3.0 TERM
The term of this agreement shall be for five (5) years, commencing on June 1,
2012 (the "Effective Date") and continuing through May 31, 2017, unless earlier
terminated as herein provided. As used herein, the term Agreement Year shall
mean each twelve (12) month period during the Term, commencing on the
Effective Date.
4.0 PRICING
The Pricing Schedule, Exhibit A, contains a list of permitted Vendor Beverage
products that will be provided for direct purchase by the City and/or its
Concessionaires for use or resale. If any new Vendor Beverages are introduced,
the Vendor must submit additional Vendor Beverages pricing to the City. The
City may include these Vendor Beverages to the approved list at its discretion.
All rates are firm for the first Agreement Year. For the second, third, fourth and
fifth Agreement Years, the rates may be increased or decreased according to the
annual change in the local Consumer Price Index (CPI), at the annual
anniversary of the contract date. Any increase must be requested by the Vendor
and approved by the City.
Should the CPI be used, the following would apply:
CPI increase shall be calculated by using the percentage change between the
previous year and the current year's CPI, published by the U.S. Department of
Labor's Bureau of Labor Statistics. The specific index to be reviewed is the CPI
for Tampa-Clearwater-St. Petersburg for July of each year using the "Special
Aggregate Index category of "All Items less Shelter" under the "All Urban
Consumers" column.
Vendor shall provide the beverages identified on the Permitted Beverage
Products list to City or its Concessionaires at the prices set forth on the "Price
Schedule," which is attached to this agreement as Exhibit A.
5.0 EXISTING AGREEMENTS
By execution of this Agreement, Vendor expressly agrees that any contracts or
other arrangements, whether written or verbal, that currently exist or that Vendor
believes may have previously existed befinreen Vendor and City or any of its
Concessionaires, departments or personnel regarding beverage sales,
advertising, gifts or donations, past, present, or future financial contributions and
support in the City, and all obligations of the City and Vendor arising from such
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relationships, if any, are automatically terminated as of the Effective Date of this
Agreement. Neither City nor Vendor shall have any further obligations under
such preexisting contracts or arrangements.
6.0 LABELING
All ingredients must be declared on the product label, as required by the Food
and Drug Administration. All products provided are required to carry legible,
open code dating on each can, bottle or case, and must indicate pack code or
expiration date. If any code is encrypted, Vendor must provide the key from the
manufacturer to decode the information.
7.0 PUBLIC RECORD/INFORMATION REQUIREMENTS
Unless otherwise required by law, all agreement terms, conditions, offers, and
disclosures, as well as information or disclosures arising out of this agreement,
shall be deemed public information as provided for in Florida Statutes Chapter
119. As such they may be subject to release as public records. City shall not in
any way be liable to Vendor for the disclosure of any such records, and City
assumes no obligation or responsibility for asserting legal arguments on Vendor's
behalf.
8.0 SERVICE AND DELIVERY REQUIREMENTS
8.1 Vending Machine Sales: The servicing of vending machines for
restocking, maintenance and repair must occur during hours that the City
Facilities are open and available for public use unless otherwise authorized by
the City of Clearwater.
8.2 Direct Purchase Sales: All products designated for direct purchase shall
be delivered as requested by the City and/or its Concessionaires. Invoices
should accompany the delivery. In the event the Vendor is unable to supply the
requested product to the City and/or its Concessionaires, the City reserves the
right to make a permitted beverage purchase from another Vendor. The City
and/or its Concessionaires will order product from Vendor at least 72 hours prior
to requested delivery.
8.3 Regulatory Standards: City reserves the right to reject any products,
supplies and equipment that are unsafe for their intended use or fail to meet
established FDA and OSHA health and safety requirements and standards.
8.4 Employee Certification: Vendor shall certify in writing that all of its
employees and all subcontractor's employees, present or new hires, have not
been convicted of a felony or are awaiting adjudication of same. This certification
shall be provided by Vendor to City prior to any of Vendor's employees, or
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Vendor's subcontractor's employees, coming in contact with any City personnel
or customers.
8.5 Emergency Delivery: In the event of a tropical storm system (or other
emergency as deemed by the City Emergency Operations), Vendor must provide
four (4) pallets of bottled water product to a designated storage facility, provided
that it is safe to deliver to the designated storage facility, as requested by the City
with a minimum of forty-eight (48) hours notice.
9.0 INVOICES AND PAYMENTS FOR DIRECT PURCHASE PRODUCTS
Delivery slips or invoices for direct delivery product sales must be furnished on
the same day of delivery. Payments to Vendor will be made Net thirty (30) days
upon receipt of Vendor's invoice for the previous month's billing period. Credit
memos shall be issued in a reasonable time but not to exceed thirty (30) days
from the date of return products.
10.0 RESPONSIBILTY FOR PRODUCTS, MATERIAL AND EQUIPMENT
Vendor shall be responsible for all products, materials and equipment including
the loss, destruction of, or damage to the products, materials and equipment until
they are delivered and accepted by City at the designated delivery point,
regardless of the point of inspection. After delivery to and acceptance by the City
of the equipment or beverage products specified in this agreement, City shall be
responsible, to the limits of Florida Statute 768.28, for the loss or destruction of
or damage to the equipment or supplies only if such loss, destruction, or damage
results from the negligence or willful misconduct of officers, agents, or employees
of City.
11.0 EQUIPMENT
The Vendor shall be solely responsible for the placement and operation of full-
service vending machines at locations designated by the City at City Facilities.
Locations for Equipment may be deleted or added to by the Vendor upon
approval of the City, or by mutual agreement of the Parties.
All Equipment will be accessible to the general public during Facility operating
hours, only to the extent that each corresponding location is open to the public as
determined by the City in its sole discretion. If it becomes necessary to move
any of the Equipment for any reason (for e.g. low traffic area, minimal sales,
etc.), City and Vendor will agree to an alternative location, and Vendor shall then
move such Equipment to the mutually agreed alternate location. The Equipment
will at all times remain the property of Vendor.
Specifications for Beverage Vending Machine/Equipment
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11.1 Energy Efficiency: All machines provided by Vendor under this
agreement shall conserve energy and reduce energy related costs through
energy efficiency. To satisfy this requirement, Vendor either can install machines
with an Energy StarO label (or equivalent) or can utilize energy-saving devices
such as the Vending MiserO or equivalent. Vendor shall incur all costs
associated with energy saving machines or devices.
11.2 Vending Equipment: At its sole expense, Vendor shall provide, install
and maintain sufficient vending equipment and supplies necessary to facilitate
the continued sale of Permitted Beverage Products. No machine shall be
installed that does not meet the energy efficiency requirements set forth above.
Automatically operated dispensing machines shall be adequately metered with
non-reset meters and shall operate on AC-110 volts. The machines shall be
double insulated or grounded. All Equipment shall be equipped, at a minimum,
with dollar validators and coin-operated mechanisms with change return, slug
rejection and coin-return features.
11.3 Vending Equipment Maintenance: While the Equipment is in the City's
possession, the City shall be responsible for keeping all Equipment in a clean
and sanitary condition. Machines that are damaged or unsightly shall be
reported to Vendor. Vendor will inspect Equipment and if necessary, Vendor will
remove the Equipment and determine whether or not to replace it.
11.4 Equipment Stocking: The stocking of Vendor's Beverages shall be the
sole responsibility of the Vendor. All dated product must be fresh, with un-expired
dates of sale at all times. Vendor shall remove all expired product not later than
the printed expiration date if not sold. Vendor shall be responsible for stocking
and restocking product on a regular basis or within seventy-two (72) hours of
City's request.
11.5 Americans with Disabilities Act: All vending machines shall meet the
requirements of the Americans with Disabilities Act, as may be amended from
time to time, in that all controls must be located between two (2) and four (4) feet
from ground level.
11.6 Refunds: Vendor shall be responsible for all refunds. Vendor shall set
aside a minimum of five dollars ($5) per location for possible refunds. This fund
shall be checked periodically to ensure the minimum level. Vendor shall provide
each location with a form to account for any refunds. At a minimum, this form
shall contain fields to enter the date, refunded amount, name of person receiving
refund, reason for refund, and the serial number of the machine involved.
11.7 Equipment Loan: Vendor shall loan equipment, if available, to the City
of Clearwater for use at City Events. This equipment includes items such as
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merchandising wagons, stand-alone refrigerated coolers, etc. All requests must
be in writing forty-five (45) days prior to any City Event.
12.0 EQUIPMENT MAINTENANCE AND REPAIR RESPONSE TIME
12.1 Ordinary Maintenance: During the term of this Agreement, Vendor shall
be responsible for the ordinary maintenance and repair of vending equipment
and other Vendor-owned equipment that it provides for use at City Facilities.
12.2 Repair Response Time: Vendor shall respond within twenty-four (24)
hours (excluding weekends and holidays) to all communications from City or one
of City's individual sites regarding defective or inoperable machines. Any
defective or inoperable machine will be fixed or replaced within five (5) working
days.
12.3 Custodial Schedule: City shall provide all labor and supplies and
maintain an appropriate custodial schedule for each vending area to ensure that
all equipment is kept in reasonably clean and sanitary conditions; that the
vending area is reasonably free of debris and spills; and that all debris is
removed from the building during normal business hours.
13.0 ELECTRICITY
13.1 Electrical Power: City shall furnish, at no cost to Vendor, the electrical
power necessary for the operation of the vending machines. Vendor shall
provide information detailing the amperage of the machines and electrical
consumption. City will review its power consumption during the Term of this
Agreement, and machines utilizing an unreasonable or excessive amount of
power will be replaced by Vendor within ten (10) business days of Vendor's
receipt of City's notification.
13.2 Electrical Outlets: City will not be required to install or relocate any
electrical outlets or circuits in order to provide electrical power to vending
machines at desired locations. Vendor shall bear all costs associated with any
such relocation, unless such relocation is requested solely by City, in which case
City shall bear the cost of relocation. Each installed vending machine shall be
connected on its own electrical circuit. Any new electrical circuits required shall
be provided by Vendor at no cost to City. Vendor must obtain City's prior written
approval for the use of vending machine electrical cords that are longer than five
(5) feet.
14.0 PROMOTION AND ADVERTISING RIGHTS
City hereby grants to Vendor the following promotion and advertising rights:
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14.1 Vending Machine Panels: Vendor may affix such logos/advertising
imagery to its vending machine panels as may be pre-approved by the City in its
sole discretion.
14.2 Signage: With the express written approval of the City, Vendor may utilize
signage related directly to the provision of the products and services provided for
hereunder. Vendor represents and warrants that it will use its best efforts to use
signage that is environmentally sensitive, tastefully designed, and that which
promotes an enhanced quality of life. The Vendor may provide banners to be
displayed by the City at City Events. Specifications will be provided to the Vendor
by the City. All signage contemplated by this section shall be required to comply
with City policy, City Codes and other law, as applicable.
14.3 Other Promotion and Advertising Rights: The City of Clearwater may
approve additional promotion and advertising as requested, including logo
inclusion in marketing materials at City Events.
14.4 Compliance: Vendor's failure to comply with Section 15 of this agreement
shall be deemed a material breach of the agreement that may subject the
agreement to immediate termination at City's sole discretion.
15.0 LICENSING PAYMENT & PRODUCT SALES COMMISSION
In consideration of the rights and privileges granted to the Vendor hereunder,
including the right to access, install and maintain vending machines within City
Facilities, the Vendor shall pay a License Fee to the City on an annual basis
("Licensing Payment" or "Licensing Fee"). There shall be no enumerated
commission to the City on vending machine sales as part of the Agreement.
Vendor will operate and retain all proceeds.
Licensing Payment: The Licensing Payment shall be paid in annual installments
in the amount of Thirty-Two Thousand Five Hundred Dollars ($32,500) each
Agreement Year. The first payment will be paid within forty-five (45) days after
this Agreement has been signed by both Parties and for subsequent Agreement
Years Licensing Payment will be due annually at the annual anniversary of the
Effective Date.
Vendor shall make payments to:
City of Clearwater, Parks and Recreation Department
P.O. Box 4748
Clearwater, FL 33758-4748
Attention: Administrative Support Manager
16.0 FINANCIAL REPORTS
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16.1 Full-Service Vending Financial Reports: Vendor shall provide the City
with an annual audited sales report detailing the total sales per month generated
from all vending machines at each location. This report is due thirty (30) days
after each annual anniversary of the Effective Date. Required reports shall be
in accordance with generally accepted accounting principles and be attested to
by a Certified Public Accountant.
16.2 Direct Purchase Report: Vendor also shall provide the City with an
annual audited Direct Purchase Report for all direct purchases. This report shall
detail sales activity per facility and per concessionaire and an aggregate total.
Sales activity shall be further broken down by each product item. This report is
due thirty (30) days after each annual anniversary of the Effective Date.
Required reports shall be in accordance with generally accepted accounting
principles and be attested to by a Certified Public Accountant. If the City does
not receive said reports within the specified time frame, the City shall notify the
Vendor in writing. If acceptable reports are not received by the City within 30
days of the written notification, failure to provide said reports shall be considered
a material breach of this Agreement, resulting in termination rights by the non-
breaching Party as provided for herein.
17.0 FINANCIAL RECORDS
Vendor shall create and maintain complete and accurate financial and
accounting records of vending transactions for each machine in accordance with
accepted industry standards, and will keep such financial records for a period of
5 years after the close of each year's operation, unless the requirements of this
Agreement or an audit have not been resolved, in which case said records shall
be maintained until resolution. Records must be made available in accordance
with applicable law, including Chapter 119, Florida Statutes.
18.0 TAXES
Each Party is responsible to remit federal, state or local taxes, as it pertains to
its respective business and property. City shall not assess common area
maintenance fees, real property taxes or other charges based on Vendor's
occupation of the space allocated to vending machines.
19.0 SERVICE PERSONNEL
City shall have the right, in its absolute discretion, to require the removal of
Vendor's personnel at any level assigned to the performance of the services
provided under this agreement. City shall provide written notice to Vendor of its
request for removal of Vendor's personnel, which notice will become effective
upon receipt. Such personnel shall be promptly removed from performing
services under this agreement at no cost or expense to City.
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20.0 REQUIRED MEETINGS
Vendor and City representatives shall meet annually, and at such other times as
may be agreed upon, to plan and coordinate services provided under this
Agreement with the intent to enhance sales in a manner to increase process
efficiencies, and improve communication and customer service.
21.0 LAWS, PERMITS, REGULATIONS
21.1 Licenses: Vendor shall obtain all necessary licenses or permits for its
proper performance of this Agreement and shall perform in accordance with
applicable federal, state and local laws, regulation, ordinances or codes in force
where Vendor is providing its services and selling its products. Vendor is
responsible for its own applicable taxes, including payroll taxes, and
miscellaneous overhead expenses.
21.2 Change in Law or Regulation: If at any time during the Term of this
Agreement either Florida, federal law, or local law or regulation is revised to
materially limit the beverage types, hours of operation, or location of vending
machines on City property, Vendor shall act in conformance with such revised
law or regulation, and City shall not be responsible for any lost profits which may
result there from and will then have the option as its sole remedy, Vendor may
terminate this Agreement and City shall (i) allow Vendor to retrieve any
Equipment, (ii) pay to Vendor the unearned prorated portion of pre-paid
Licensing Payment or other upfront funding, if any.
21.3 Compliance with laws: Vendor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state and local, 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.
22.0 INDEMNIFICATION
Vendor shall protect, indemnify, defend and save and hold harmless the City, its
officers, officials, attorneys, employees, agents and members of its governing
body from and against any and all liability, loss, damages, (including punitive
damages), claim, settlement, payment, expenses, interest, award, judgment,
diminution of value, fine, fee, penalty, or other costs (including without limitation,
costs and fees of litigation of every nature) arising out of or in connection with
Vendor's negligence or 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
negligent or willful misconduct of the City. Notwithstanding anything contained
herein to the contrary, this indemnification provision shall not be construed as a
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waiver of any immunity to which City is entitled or the extent of any limitation of
liability to pursuant to § 768.28, Florida Statutes. Furthermore, this provision is
not intended to nor shall be interpreted as limiting or in any way affecting any
defense City may have under § 768.28, Florida Statutes or as consent to be
sued by third parties. All indemnification provisions contained in this Agreement
shall survive termination or expiration of this Agreement.
23.0 INSURANCE
Insurance requirements must be in place prior to program start-up.
23.1 Liability Insurance
The applicant shall furnish, pay for, and maintain during the life of the contract
with the City the following liability coverage:
• Commercial General Liability Insurance on an "occurrence" basis in an
amount not less than $1,000,000 per occurence Bodily Injury Liability and
Property Damage Liability.
• Workers' Compensation Insurance applicable to its employees, if any, for
statutory coverage limits in compliance with Florida laws.
• Personal Property Insurance is recommended for all structures and
contents. If Vendor chooses to not obtain Personal Property Insurance,
Vendor understands and agrees that the City is not responsible for
replacement of such property and contents at any of its facilities.
23.2 Additionallnsured
The City is to be specifically included as an additional insured on the commercial
general liability policy described above.
23.3 Business Automobile Liability Insurance
Insurance in the amount of at least $1,000,000, combined single limit, providing
Bodily Injury Liability and Property Damage Liability.
23.4 Notice of Cancellation or Restriction
Vendor shall endeavor to provide the City with thirty (30) day notice of
cancellation or material modification.
23.5 Certificates of Insurance/Certified Copies of Policies
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The applicant shall provide the City with a certificate or certificates of insurance
showing the existence of the coverage on contract initiation and then annually.
The applicant will maintain this coverage with a current certificate or certificates
of insurance throughout the term stated in the proposal. When specifically
requested by the City in writing, the applicant will provide the City with certified
copies of all policies of insurance as required above. New certificates shall be
provided to the City whenever any policy is renewed, or obtained from other
insurers.
The address where such certificates shall be sent or delivered is as follows:
City of Clearwater
Attention: Administrative Support Manager,
Parks and Recreation Department
P.O. Box 4748
Clearwater, FL 33758-4748
24.0 VENDOR'S FAILURE TO PROVIDE SERVICES OR PRODUCTS
24.1 Vendor's Representation of Performance: City requires the Permitted
Beverage Products and services identified under this Agreement be supplied to
City in a timely and accurate manner. City has entered into this Agreement with
Vendor because Vendor has represented that it can meet City's time-related
service and product specification needs.
24.2 Obtain Other Services: Vendor recognizes and acknowledges that the
City has entered into this Agreement in reliance on its timely performance
hereunder, therefore, Vendor's failure to deliver Permitted Beverage Products or
perform any of the services required, as determined in the City's sole discretion,
shall constitute a material breach for which the City may obtain substitute product
or services without pursuit of legal interpretation or disposition of this Agreement,
as provided for below.
24.3 Unsatisfactory performance: Unsatisfactory performance may include
but not be limited to: late/non-deliveries; failure to repair vending machines as
promised; partial deliveries that are not cured within thirty days; delivery of wrong
products; delivery of unauthorized substituted products not meeting the
specifications identified in this Agreement; incorrect pricing; failure to provide
revenue reports as specified in the Agreement; or invoicing problems. Failure to
perform shall constitute a material breach hereunder for which either Party may
avail itself to remedies set forth herein or otherwise available at law or in equity.
24.4 Cure Notice: Before City may make an arrangement to obtain substitute
services or Permitted Beverage Products from another provider, City shall give
Vendor final written notification to perForm within five (5) days ("Cure Notice").
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With regard specifically to items that are out of stock, the Cure Notice shall allow
Vendor a minimum of ten (10) days to resolve any issues related to that problem.
24.5 Other Remedies: If either Party materially breaches this Agreement by
failing to perform its services as called for under this Agreement, such Party may,
in addition to any other remedy available, elect to immediately terminate the
contract after written notification to perform within thirty (30) days.
25.0 Intentionally left blank.
26.0 GENERAL PROVISIONS
26.1 Authority of the Administrative Support Manager of Parks and
Recreation Department: The City has the final approval in all matters relating to
or affecting the Scope of Contract. Except as expressly specified in the
Agreement, the Administrative Support Manager may exercise any powers, rights
or privileges that have been lawfully delegated by the City. Nothing in the
Agreement shall be construed to bind the City for acts of its employees, including
the Administrative Support Manager of Parks and Recreation Department that
exceed the delegation of City.
26.2 City's Technical Representative: The Administrative Support Manager
of Parks and Recreation Department also will act as the technical representative
for all technical aspects related to the performance of the Agreement. Vendor
shall make such oral or written reports to the Administrative Support Manager of
Parks and Recreation Department as may be requested by the City or as
specified in the Agreement. All correspondence regarding this Agreement and
related contractual matters shall be addressed to the Administrative Support
Manager of Parks and Recreation Department at the address provided herein.
26.3 Independent Contractor: Each Party is acting as an independent
contractor and employer. Nothing herein shall be interpreted to create or be
construed to create a partnership, joint venture, or agency relationship between
any of the parties, and no Party shall have the authority to bind the other in any
respect.
26.4 Notices: Formal notices, demands, and communication to be given
hereunder by either Party shall be in writing and shall be delivered in person, by
U.S. mail, overnight delivery, fax or electronically, and shall be deemed received
as of the date of verifiable delivery. "Verifiable delivery" of electronic
transmission shall mean email "delivery status notifications" or fax "transmittal
confirmation reports," or their equivalents. Said notices shall be delivered to:
CITY:
City of Clearwater, Parks and Recreation Dept.
Administrative Support Manager
14
Classified - Confldential
100 S. Myrtle Ave.
Clearwater, FL 33756
Coca-Cola
District Sales Manager On Premise
2950 Gandy Blvd
St Petersburg, FL 33702
26.5 Announcements. Each Party shall not issue any press release or make
any announcement with respect to this Agreement without the prior written
consent of the other Party. Despite the previous sentence of this Section, each
Party is entitled to make any disclosures required by law.
26.6 Amendments: The parties may amend this Agreement if such
amendment is in writing, if the writing identifies itself as an amendment to this
agreement and is signed by both Parties to the Agreement.
26.7 Waivers:
26.7.1 Effect of Failure, Delay or Course of Dealing. No failure or delay
in exercising any right or remedy or in requiring the satisfaction of any condition
under this Agreement, and no act, omission or course of dealing between the
Parties shall operate as a waiver or estoppel of any right, remedy or condition.
26.7.2 Each Waiver for a Specific Purpose: A waiver made on one
occasion is effective only in that instance and only for the purpose stated. A
waiver once given is not to be construed as a waiver on any future occasion or
against any other person.
• Severability. If any provision of this Agreement is determined to be
invalid, illegal or unenforceable, the remaining provisions of this
agreement remain in full force, if the essential terms and conditions of this
agreement for each Party remain valid, binding, and enforceable.
Merger: This Agreement and its Exhibits constitute the final Agreement
between the Parties. It is the complete and exclusive expression of the
Parties' Agreement on the matters contained in this Agreement. All prior
and contemporaneous negotiations and agreements between the Parties
on the matters contained in this Agreement are expressly merged into and
superseded by this Agreement. The provisions of this Agreement may not
be explained, supplemented or qualified through evidence of trade usage
or a prior course of dealings. In entering into this Agreement, neither
Party has relied upon any statement, representation, warranty or
agreement of the other Party, except for those expressly contained in this
15
Classified - Confidential
Agreement. There are no conditions precedent to the effectiveness of this
Agreement, other than any expressly stated in this Agreement.
• Force Majeure: "Force Majeure Event" means any act or event, whether
foreseen or unforeseen, that meets all three of the following tests: (a) The
act or event prevents a party (the "Nonperforming Party"), in whole or in
part, from (i) performing its obligations under this agreement; (ii) satisfying
any conditions to the obligations of the other party (the "Performing Party")
under this agreement, (iii) or frustrates the purpose of this agreement; (b)
The act or event is beyond the reasonable control of and not the fault of
the NonperForming Party. (c) The NonperForming Party has been unable to
avoid or overcome the act or event by the exercise of due diligence.
Despite the preceding definition of a Force Majeure Event, a Force
Majeure Event excludes economic hardship, changes in market
conditions, and insufficiency of funds.
o Suspension of Performance. If a Force Majeure Event occurs, the
Nonperforming Party is excused from (i) whatever perFormance is
prevented by the Force Majeure Event to the extent prevented; and
(ii) satisfying whatever conditions precedent to the Performing
Party's obligations that cannot be satisfied, to the extent they
cannot be satisfied. Despite the preceding sentence, a Force
Majeure Event does not excuse any obligation by either the
Performing Party or the Nonperforming Party to make any payment
required under this agreement; provided however, that no payment
need be made if corresponding performance is not rendered or a
relevant condition is not fulfilled because of a Force Majeure Event.
o Resumption of Performance. When the Nonperforming Party is
able to (i) resume performance of its obligations under this
agreement, or (ii) satisfy the conditions precedent to the Performing
Party's obligations, it shall immediately give the Performing Party
written notice to that effect and shall resume performance under
this agreement no later than two working days after the notice is
delivered.
o Exclusive Remedy. The relief offered by this Force Majeure
provision is the exclusive remedy available to the Nonperforming
Party with respect to a Force Majeure Event.
26.8 Assignment and Delegation:
26.8.1 No Assignments. Neither Party may encumber, assign, or
otherwise transfer this Agreement or any right or interest in this Agreement,
whether in whole or in part, without the prior written consent of the other Party.
16
Classified - Confidential
Due to the unique nature of this Agreement and the limited equivalent potential
substitute parties, any assignment of this Agreement without the express, written
consent of the other Party shall render this Agreement null and void in its
entirety. All assignments of rights are prohibited under this subsection, whether
they are voluntary or involuntary, by merger, consolidation, dissolution, operation
of law or any other manner. For purposes of this Section, (i) a"change of control"
is deemed an assignment of rights; and (ii) "merger" refers to any merger in
which a Party participates, regardless of whether it is the surviving or
disappearing corporation.
26.8.2 No Delegations. Neither Party may delegate any perFormance
under this Agreement.
26.8.3 Ramifications of Purported Assignment or Delegation. Any
purported assignment of rights or delegation of performance in violation of this
Section is void.
Third Party Beneficiaries. This Agreement does not and is not intended
to confer any rights or remedies upon any person other than the
signatories.
Captions: The descriptive headings of the articles, sections and
subsections of this agreement are for convenience only, do not constitute
a part of this Agreement, and do not affect this Agreement's construction
or interpretation.
Governing Law: The laws of the State of Florida (without giving effect to
its conflict of laws principles) govern all matters arising out of or relating to
this Agreement and the transactions it contemplates, including, without
limitation, its interpretation, construction, performance, and enforcement.
All terms, covenants and conditions of this Agreement shall inure to the benefit of
and be binding on the Parties and their successors and assigns. This section
shall not be deemed a waiver of any conditions against assignment hereinbefore
set forth.
26.8.5 Photography. The 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 Vendor's activities, vending machines, signs,
and other equipment installed and /or operated by Vendor pursuant to this
Agreement, provided City obtains Vendor's prior approval, which shall not be
unreasonably withheld. However, City shall not be required to pay Vendor
compensation for such activities.
26.8.6 Non-disclosures/Press Releases. Each Party shall consult with
the other Party and obtain such Party's prior written approval before issuing any
press releases or otherwise making public statements with respect to this
Agreement or the transactions contemplated hereby.
17
Classified - Confidential
27.0 TERMINATION
A Default shall be deemed to have occurred if: a) Vendor fails to make any
payment provided for herein; b) either Party fails to cure its default in the
performance or observance any covenant, conditions, term or provision of this
Agreement after written notice of said default and such default continues for a
period of sixty (60) days or such other period as specifically set forth herein,
whichever is shorter; or c) either Party defaults in the performance or observance
of any material covenant, condition, term or provision of this Agreement and such
default is not curable, the non-defaulting Party cannot be made whole by
monetary damages, and the default evidences a willful or negligent disregard by
the defaulting Party; d) either Party becomes insolvent through the petition or
filing of bankruptcy, insolvency, reorganization or the appointment of a receiver
or trustee of all or substantially all of said Party's assets and within one hundred
twenty (120) days of such filing, said Party fails to secure a discharge of such
petition or dismissal of such proceedings.
After the occurrence of a Default, the non-defaulting Party shall have the right to
give the defaulting Party notice of its intention to terminate this Agreement. Upon
the effective date of such termination, (which shall not be less than ten (10) days
after giving such notice) the Term of this Agreement shall end.
Within thirty (30) days after this Agreement is terminated, for any reason, Vendor
shall remove all vending machines, and other equipment and signs that Vendor
installed and/or operated pursuant to this Agreement . Should Vendor fail to
remove all vending machines, equipment and signs, the City may remove the
same, store for pick up by Vendor for a period of sixty (60) days at Vendor's
expense.
The Parties reserve all rights and remedies as may be provided by law.
Notwithstanding any other provision herein to the contrary, the City may
terminate this Agreement, without cause, for any municipal purpose as
determined by its City Council at a duly advertised public hearing by giving one
hundred eighty (180) days written notice to Vendor and City shall (i) allow Venor
to retrieve any Equipment, and (ii) pay to Bottler the unearned prorated portion of
pre-paid Licensing Payment or other upfront funding, if any.
28.0 SOVEREIGN IMMUNITY
Nothing in this Agreement shall waive or diminish the City's sovereign immunity.
Nothing in this Agreement shall extend the City's liability beyond the limits
established in Section 768.28 Florida Statutes or any of the liability limits set forth
in Florida Statutes. Nothing herein shall be construed as consent by either Party
18
Classified - Confidential
� �
to be sued by third parties in any matter arising out of this Agreement. There
are no third party beneficiaries pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the
day and year first above written.
COCA-COLA REFRESHMENTS USA, INC.
By: �
l r,�l.A�- � �,�,r. �-
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:
CITY OF CLEARWATER
By: ���+�.�.��
William B. Horne, II
City Manager
By: — �'��,t 1� Cr¢� c �of
George N. Cretekos
Mayor
St�,pt°'�
ATTEST: v�������
t'� = '-
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Rosemarie Call ��qT
City Clerk
Approved as to form:
Li��(,l.C.�, �
Laura Lipowski Mahony
Assistant City Attorney
19
Classified - Confidential
Praduct Pricin : Direct Qelive
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Products
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*All prioes are per standard physical case and exclusive of taxes, depasits, handling fees, and recycling fees.
Prices are based on standard Coca-Cola Trade Letter pricing and are subject to increase at anytime.
Accounts will be notified in writing prior to any national increase in pricing.
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Dit��t:t D�live Pro�lu�t List: �
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12az Car6onated Cans - 24pk 2naz Car6onated & Nor:-Carbunated - 24Pk z Liiers - 8pk U
Bazq's Rootbeer Barq's Rootbeer Caff. Free Classic Coke
Caff. Free C]assic Coke Caff. Free Diet Cake Caff. FYee Diet Coke
Caff. Free Diet Coke Cherry Coke Cherry Coke
Cherry Coke Cherry Coke Zero Cherry- Coke Zero
Classic Coke Classic Coke Classic Coke
Cherry Coke Zero .1 Coke Zero Coke Zero
Classic Coke w/Lime
Cdce Z,ero
Diet Barq's Rootbeer
Diet Cherry Coke
Diet Coke
Diet Coke w/Lime
Diet Coke w/Splenda
Diet Nestea w/Lemon
Fanta Grape
Fanta Orange
r A`" �;
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Fanta Orange Zero
Fresca
Mello Yello
Mello Yello Zero (Coming 4pri1 svii)
Minute Maid Fruit Punch
Minute Maid Lemonade
Minute Maid Light Lemonade
Minute Maid Pink Lemonade
Minute Maid Light Chercy Limeade
Nestea
Fibb Xtra
Seagram's Diet Ginger Ale
Seagram's Ginger Ale
Sprite
Sprite Zero
Tab
Diet Coke
Diet Coke w/ Lime
Fanta Orange
Mello Yello
Mello Yello Zero (Coming April2ou)
Minnte Maid Lemonade
Minnte Maid Orangeade
Minnte Maid Pink Lemonade
Minute Maid Fruit Punch
Nestea
Nestea Sweet w/Lemon
Nestea Red Tea Pomegranate Passion Fruit
Diet Nestea w(Lemon
Pibb Xtra
Seagram's Ginger Ale
Sprite
Sprite Zero
Van�11a Coke
Vault
Vault Zero
�..soz S1im Cans
Classic Coke
Coke Zero
Diet Coke
Sprite
Diet Coke
Diet Coke w/Lime
Fanta Orange
Fresca
Mello Yello
Mello Yello Zero (ComingApril2aii}
Minute Maid Lemonade
Minute Maid Pink Lemonade
Minute Maid Fruit Punch
Minute Maid Light Cherry Limeade
Nestea Ice Tea
Sea,gram's Ginger Ale
Sprite
Sprite Zero
8oz GIass Bottles - 2�pk
Coca-Cola Classic
3ooz NRs - 24nk
Seagram's Club Soda
Seagram's Ginger Ale
Seagram's Tonic
Coca-Cola
Diet Coke
Sprite
Vanilla Coke Zero � s_ t,iter - x2pk
Vault 8.�oz Aluminurn Bottles Classic Coke
Vault Zero Coca-Cola Classic Diet Coke
i2oz NRs - Y2,pk
Mexican Coca-Cola
Seagram's Club Soda
Seagram's Ginger Ale
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Dir��t�t Del ive Prod uct �anti n a�l :° �vvat�r �� �
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1 fi. qoz Ftt�e - 12�k
Slenderize Blueberry Raspberry
Slenderize Strawberry Mellon
Mixed Berry
Slenderize Cranberry Raspberry
Slenderize Tropical Punch
Slenderized Acai Pomegranate
Slenderize Goji Wildberry
Peach Mango
Banana Colada
Strawberry Guava
Orange Mango
et}uz Tu»2mie 1'wrtini�.�_.�t•��k,�
Fruit-abulous Punch
Green-tastic Apple
Orange-Arific
Sour-Sational Raspberry
Very Berry Blue
r_6�z VR�tash - t2pk
Berry Blend
Strawberry KiHz
Tropical Blend
t '?i)Z �K - 12Dli
�ioo96 Vegetable Juice
Campbell's Tomato Juice
Spicy Hot
r�crz V$ I-u3ion - t ��k
Cranberry/Blackberry
Mixed Berry
Pomegranate/Blueberry
Strawberry/Banana
; Raspberry Green Tea
- Pineapple Mango Green Tea
r�>cr� ?�7iniete Mciicl ��lzc�r:c�� ,-_ r •�k
Strawberry Kiwi
Pomegranate Berry
:+4Tirtitte ?Vluicl_�c���z :ti`1:s -. `��
ioo9b Apple Juice
i00% Mixed Berry
ioo96 Orange Juice
Y_,._��z Minut� Muicf J�cicE�s_,.ti'It's -_2;��k
i00% Apple Juice
ioo96 Orange Juice
Cranberry Apply Raspberry
Cranberry Grape ,,,�,,,
Y�ywerAde Potc�der___�� Ualtor�
Fruit Punch
Lemon Lime
hiountain Blast
Confidential � Restricted
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Mixed Berrv
Fruit Punch
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Fruit Punch
Lemon Lime
Mountain Blast
Orange
PowerAde Zero Grape
PowerAde Zero Mixed BerrS
PowerAde Zero Strawberry
Strawberry Lemonade
PowerAde Zero Fruit Punch
.tfiE�z__l;'izer•q„u 1)�•ir�ks -_:�g�ik
Full Throttle
Full Throttle Red Berry (i2pk)
Full Throttle Blue A,gava
NOS
NOS Charged Citrus
NOS Fruit Punch
NOS Grape
NOS Loaded Cherry
NOS Sugar Free
Relentless Original (Citrus)
Relentless Fire (Orange}
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i Liter Dasani (i2) Connect (Black Cherry/Lime) Half and Half
i.s Liter Dasani (S) Defense (Raspberry Apple) Honey Green Tea
i2oz bottles Dasani (24) Energy (Tropical Citrus) Orange Mango Ade
lOOZ UOttl@S D8SSII1(vending only} Essential (Orange/Orange) Peach White Tea
2ooz Dasani (24) Focus (Kiwi Strawberry) Pom Blue Ade
2ooz Dasani Lemon (24} Multi V(Lemonade� Superfruit Punch
2ooz Dasani Strawberry (24) Power-C (Dragonfruit)
Revive (Fruit Punch) a3oz Peace Tea - iapk
Euion Spark (GrapeJBlueberry) Ceylon Black Tea
�/2 Liter PET Stur-D (Blue Agave Passion Fruit) Diet Tea
i Liter (i2pk) �� (Acai/Blueberry•/Pom) Green Tea
330�
i.5 Liter (i2pk)
5oom1(24Pk)
Smart Water
2ooz (4-6pks)
i Liter (12)
i.5 Liter (i2)
�ooml (24)
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12oz Vitarnin Water - 2ank
Fssential (Orange-Oran.ge)
Power-C (Dra,gonfruit)
Revive (Fruit Punch)
XXX (Acai/Blueberry/Pom)
2ooz Vitarr�in Water Zero
Drive (Blood OrangeJMi.�ced Berry)
Glow (Strawberry/Guanabana)
Go-Go (Mixed Berry)
Mega-C (Grape/Raspberry)
Recoup (Peach/Mandarin)
Rhythm (Starfruit/Citrus)
Rise (Orange/4range)
Squeezed (Lemonade)
XXX (Acai/Blueberry/Pom)
�
Razzleberry Tea
Sweet Tea w/Lemon
Unsweet Tea
i8.,5oz Gold Peak Tea- i2pk
Diet Tea
Green Tea
Sweet Tea
Sweet Tea w/Lemon
Unsweet Tea
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Exhibit B
Current List of Machine Locations
# Narne . Addre�,s
1 BEACH POOL 51 BAY ESPLANADE
2 BEACH REC 69 BAY ESPLANADE
3 BEACH REC 69 BAY ESPLANADE
4 Carpenter Fieid 651 Old Coachman Rd
5 CITY HALL 112 OSCEOLA AVE S
6 CITY HALL 112 OSCEOLA AVE S
7 CITY OF CLEARWATER 900 MARTIN L KING 1R AVE
8 CLEARWATER PUBLIC LIBRARY 100 OSCEOLA AVE N
9 Countryside Community Park 2640 Saba) Springs Drive
10 Countryside Community Park 2640 Sabal Springs Drive
11 Countryside Rec Center 2640 Sabal Springs Drive
12 Countryside Rec Center 2640 Sabal Springs Drive
13 DEPT OF SOLID WSTE 1701 HERCULES AVE N
14 EAST POLLUTION CNT 3141 GULF TO BAY BLVD
15 FIRE & RESCUE ADMN 610 FRANKLIN ST
16 FIRE AND RESCUE 1716 BELCHER RD N
17 FLEET MAINT 1900 GRAND AVE
18 FLEET MAINT 1900 GRAND AVE
19 GAS SYSTEM 400 MYRTLE AVE N
20 LONG CENTER 1501 BELCHER RD N
21 LONG CENTER 1501 BELCHER RD N
22 Marina Fuel Dock
23 MCMULLEN TENN COMP 1000 EDENVILLE AVE
24 MCMULLEN TENN COMP 1000 EDENVILIE AVE
25 MCMULLEN TENN COMP 1000 EDENVILLE AVE
26 MOCCASIN LAKE PARK 2750 PARK TRAII LN
27 MORNINGSIDE REC 2400 HARN BLVD
28 MORNINGSIDE REC 2400 HARN BLVD
29 PARK & REC MAINT 507 VINE AVE
30 PARK & REC MAINT 510 PENNSYLVANIA AVE
31 PARKS & REC 10 BAY ESPLANADE
32 Pier 60 10 Pier 60 dr
33 Pier 60 10 Pier 60 dr
34 POLICE DEPT 645 PIERCE ST
35 POLICE DEPT 645 PIERCE ST
36 POLICE SUB STATION 2851 MCMULLEN BOOTH RD
37 POLICE SUBSTATION 2851 N MCMULLEN BOOTH RD
38 MUNICIPAL SVC BLDG 100 MYRTLE AVE S
39 PUBLIC UTILITIES 1650 ARCTURAS AVE N
40 PUBLIC WORKS 1650 ARCTURAS AVE N
41 PUBLIC WORKS 1650 ARCTURAS AVE N
42 ROSS NORTON POOL 1426 MARTIN LUTHER KING JR AV
43 ROSS NORTON REC CENTER 1426 GREENWOOD AVE S
44 SOLI D WASTE TRANSFER STATION 1005 OLD COACHMAN RD N
45 WASTE WATER TREAT 1605 HARBOR DR
46 WASTE WATER TREATM 1605 HARBOR DR