HomeMy WebLinkAbout2012-02-02-R RESOLUTION # Oat -k
A RESOLUTION TO CONTRACT WITH PEPSI BEVERAGES COMPANY FOR
EXCLUSIVE POURING AND VENDING RIGHTS AT ALL CITY OWNED PARKS
WHEREAS, the City of Batesville owns and maintains several parks facilities including
but not limited to the Batesville Municipal Golf Course, Riverside Park, Kennedy Park,
Fitzhugh Park, Fitzhugh Pool, North Complex sports fields and pool; and
WHEREAS, Pepsi Beverages Company is seeking exclusive pouring and vending rights
at all City owned park facilities; and
WHEREAS, Pepsi Beverages Company will receive exclusive pouring rights for the sum
of $42,500.00 for a period of 7 years or the purchase of 7,320 cases / gallons of
products (whichever comes last); and
NOW, THEREFORE BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF
BATESVILLE, ARKANSAS
SECTION 1: That the City of Batesville, Arkansas shall contract with Pepsi Beverages
Company for the exclusive pouring and vending rights at all City owned parks facilities.
A copy of said contract is attached as Exhibit A.
SECTION 2: The Mayor, Rick Elumbaugh and City Clerk, Denise Johnston are hereby
authorized by the City Council for the City of Batesville to execute all documents
necessary to effectuate the agreement.
PASSED AND APPROVED this 14th day of February, 2012.
Zt-�, /I A 4'dJL1
RICK ELUMBAUGH, MA R
ATTEST:
DENISE M. JOHNSTON, ITY CLERK
• City of Batesville
Batesville Sports Complex
BEVERAGE AGREEMENT
This Beverage Agreement(the"Agreement")is made this 1st day of January, 2012 by
and between Pepsi Beverages Company("Pepsi")with offices located at 1125 Batesville Blvd
,Batesville Ar 72501. and The City of Batesville- Batesville Sports Complex with facilities
located at 1830 Chaney Dr. Batesville Ar. 72501. (the"Customer").
WHEREAS, Customer and Pepsi each desire that Pepsi, through its Brands (as
hereinafter defined), serve as the sole, exclusive and official Beverage(as hereinafter defined)
supplier, distributor and advertiser of Customer at each and every location owned and operated,
controlled or utilized by the Customer including, but not limited to, each and every location,
Beverage fountain and vending location, special events area, concession vending area and any
and all other areas and locations that become operational during the term of this Agreement(the
"Facilities").
NOW THEREFORE, in consideration of the mutual covenants Pepsi and Customer
hereby agree as follows:
1. Beverages shall be defined as any and all non-alcoholic drinks except milk.
2. Brands shall mean any and all Beverages sold and distributed by Pepsi and any and
all Beverages Pepsi may sell or distribute in the future including, but not limited to, carbonated
soft drinks, non-carbonated soft drinks, juices, juice containing beverages, teas, energy drinks,
sports drinks, or isotonic drinks, bottled waters bottled coffee, frozen beverages , hot coffee and
• tea .
3. Subject to the renewal provisions set forth herein below, the term of this seven
Year 7 year Agreement shall commence on 1-1-12 and terminate on 12-31-18,
or when Customer has purchased a total of 7320 cases/gallons (the"Benchmark
Requirement"), whichever comes last("Term"). All funding provided by Pepsi in Paragraph 5 of
this Agreement shall terminate on 12-31-18; however, Customer shall be required to honor the
terms and conditions of the Agreement until the Benchmark Requirement has been met.
4. In exchange for Customer's 7 year commitment and other valuable consideration
and upon full execution of this Agreement, the parties agree as follows.-
a,
ollows:a. Pepsi agrees to pay Customer an upfront payment of twenty five thousand
dollars($25,000.00) payable within sixty(60)days after the signing of this of this
Agreement .
b. Pepsi agrees to pay one thousand five hundred dollars($1500.00)for each year 1-7
for field sponsorship payable at the end of each year
c. Pepsi agrees to pay one thousand dollars ( $1000.00)for each year 1-7 for team
sponsorship payable at the end of each year .
d. Full Service Vending if requested will be paid at step commission.
e. 2012 Pricing as follows , 20 oz carbonated soft drinks$21.22 /24 pack case , 20 oz
water$19.58/24 pack case , 20 oz Gatorade $21.22/24 pack case .
f. All pricing adjusted annually
g. Pepsi will provide all cooling equipment need to cooler Pepsi Products
h. All Pepsi equipment provided , service and maintain all Pepsi cooling equipment free of
charge
-
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i. This agreement is exclusive 20 oz only. No carbonated soft drink fountain or can
beverages
... j. All beverages must be purchased directly from the local Pepsi Beverages Company,
failure to remain exclusive or buy product from another source will result in a request for
all monies paid , to be paid back to Pepsi at a pro rated basis.
5. All payments, including the value of donations, made by Pepsi to Customer under
Paragraph 5 of this Agreement shall be deemed earned at an equal prorated rate per month for
the purposes of this Agreement, notwithstanding the date of actual payment.
6. Customer hereby licenses and appoints Pepsi, through its Brands, as the sole,
exclusive and official Beverage supplier, distributor and advertiser of Customer and the Facilities.
Customer shall cause the Brands to be exclusively available at the Facilities and no Beverages or
Beverage related items including, but not limited to, cups or premium items, that compete with or
are the same as or similar to the Brands shall be made available, advertised and/or promoted at
the Facilities or by Customer.
7. Customer recognizes that Pepsi has paid valuable consideration to ensure an
exclusive Beverage associational relationship with Customer with respect to an exclusive
Beverage supply and distribution program and that any dilution or diminution of such exclusivity
seriously impairs Pepsi's valuable rights. Accordingly, in the event another person or entity
attempts, without Pepsi's explicit consent, to associate Beverages that compete with or are the
same as or similar to the Brands ("Competitive Products")with Customer or to suggest that
Competitive Products are endorsed by or associated with Customer by referring directly or
indirectly to Customer(all of which actions described herein are sometimes referred to as
"Ambush Marketing"), Customer will promptly oppose such actions and cooperate with Pepsi's
efforts to stop the Ambush Marketing and to protect the exclusive associational rights granted to
Pepsi in this Agreement. In the event any such Ambush Marketing occurs during the Term or any
renewal thereof, immediately upon learning thereof, each party shall notify the other party hereto.
8. All art work and logo sheets to be used in any advertisements, signage and press
releases promoting the Brands are subject to the prior mutual approval of Pepsi and Customer,
with neither party unreasonably withholding such approval.
9. Except as may otherwise be required by this Agreement, law or legal process, no
party shall disclose to any third party the terms and conditions of this Agreement.
10. Except if prohibited by law, during the entire Term, Pepsi shall provide and supply
Customer with all necessary equipment to dispense the Brands at the Facilities without charge-,
provided that all Beverages are supplied to Customer and the Facilities by Pepsi as set forth
above and that the only products dispensed from such equipment are the Brands. Pepsi will
provide service on all equipment without charge to Customer. All rights, title and interest in all
Pepsi equipment supplied to Customer shall at all times remain with Pepsi.
11. Customer represents and warrants to Pepsi that all appropriate approvals required to
enter into this Agreement have been granted and the individual executing this Agreement on
behalf of Customer has been duly authorized by any and all persons or entities of which
authorization is required to enter into this Agreement on behalf of Customer. Customer also
agrees that at no time will it challenge, contest, disclaim or deny the authority of the individual
signing this Agreement on behalf of Customer or use as a basis to void, cancel or nullify this
Agreement a claim that the individual signing below was not authorized to sign this Agreement on
behalf of Customer. Further, Customer guarantees and warrants that the execution, delivery and
performance of this Agreement by Customer will not and does not violate any agreements with or
the rights of third parties.
2
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12. In the event any of the covenants, agreements, terms or provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms and provisions contained herein shall not in any way be affected,
prejudiced or disturbed thereby.
13. If Customer fails to perform any of the promises set forth in this Agreement, then as
an option but not as its sole remedy, Pepsi may terminate this Agreement. If this Agreement is
terminated for any reason, Customer agrees to return to Pepsi a pro rata portion of all monetary
payments, including the value of donations, made to but not earned by Customer under
Paragraphs 5 of this Agreement. Further, any such breach by Customer shall be deemed as
authorization to Pepsi to allow Pepsi immediate access to the Facilities to take possession of
each and every piece of Pepsi's equipment without any claim of trespass.
14. Any failure by either party hereto to enforce at any time or for any period of time any
one or more of the terms or conditions of this Agreement, shall not be a waiver of such terms or
conditions or of either party's right thereafter to enforce each and every term and condition of this
Agreement.
15. It is mutually understood and agreed, and it is the intent of Pepsi and Customer that
an independent contractor relationship be established and is hereby established under the terms
and conditions of this Agreement: that employees of Customer are not, nor shall they be deemed
to be, employees of Pepsi; and, that employees of Pepsi are not nor shall they be deemed to be
employees of Customer.
16. This Agreement may not be assigned by either party hereto without the express
written consent of the other.
17. This Agreement fully expresses the entire understanding of Pepsi and Customer.
.► Any and all prior understandings are hereby canceled. No future changes in the terms of this
Agreement shall be valid, except when and if reduced to writing and signed by both Pepsi and
Customer, by legally authorized officials thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
City of Batesville Pepsi Beverages Company
By: By:
Name: Name:
Title: Title:
Mailing
Address
Federal ID#
3
901 8S47997
10:31:47 a.m. 06-28-2012 2/4
92310Y
�2? 140
City of Batesville r
Batesville EE
le Sao Complex
BEVERAGE �7-7
AGE AGRMthIT
77&R-
This Beverage Agreement(the"Agreement')is made this 1st day of January,21312 by
and between Peril B9v0r1g_e6 CRmpenY('Pepsis)with offices located at 1125 t3atemy Ile Blvd
,Batesville Af 72!!01:end 9,.C4y of Satesvitle- Batesville strotta Complex with facilities
located at 1830 Chaney Dr.Batesville Ar.72601. (the'Customer).
WHEREAS.Customer and Pepsi each desire that Pepsi,through its Brands(as
hereinafter defined),serve as the sole,exclusive and official Beverage(as hereinafter defined)
supplier,distributor and advertiser of Customer at each and every location owned and operated,
controlled or utilized by the Customer lncluding.but not limited to,each and every location,
Beverage fountain and vending location, special events area,concession vending area and any
and all other areas and locations that become operational during the term of this Agreement(the
'Facilities').
NOW.THEREFORE,in 0oc►8ider;3tton of the mt6ual covenants Pepsi and CusWmer
hereby aWm- as fi�Norrs:.
1. Beverages shall be defined as any and all non-eicohok drinks except milk.
2 :Brands shelf mean any and ai!Beverages soap ted distributed by Pepsi and any and
all Beverages Pepsi may sell or distribute in the future induding, but not limited to, carbonated
soft drinks, non-cprbonated soft dunks,juices,juice containing beverages,teas,energy drinks,
sports drinks,or plc drinks, bottled waters bottled coffee,frozen beverages,hot coffee and
tea.
3. Subjeotto the renewal provistons set forth herein below,the term of this seven
Year(T year Agreement shall cam rrience,ml-
.1j-.0 and ktminete on ,1;,V,
or when Customer has purchased a total bf eases!ins(the"Benchmark
Requirement'),whi0tever comes last(Term'). All funding p J by Pepsi in Paragraph 5 of
tlllS AQI Rf@rtt. tQrmtnai'0.on 12-31-18;tipVlleyer,Cuswm6r-"Ibo f egaired to honor the
terrr�tsd t6etif ns of t1%. 1preamart until ttta;66hdwark Regtairhas been met.
4. In enfWWgar CUstornef's 7 year`commAlt went and other valuable consideration
and upon full executioini of this Agreement, the parties agree as follows:
a. Pepsi agrees to pay.Customer an upfront payment of btu five thousand
doitats(s25, payable within sixty(60)days af*ft signing of this of this
Agreement.
b. Pepsi to pay one thqmsand Jmi-A—d $115tf0,00for each year 1-7
for f ; PrIwsitlp payable at the end > 0#t
C. Pepsl Wi*s to per ang thou2ar3d dollars i;i40 :OQ)ftireach year 1-7 for team
spansorahip pay%b(rs at the end of each year.
d. Full Service Vending If requested will be paid at step commission.
a. 2012 Pricing as follows , 20 oz carbonated soft drinks$21.22/24 pack case ,20 oz
W;iWr$19.58124 pack case. 20 of Gatorade$21.22124 pack case .
f. :.Ail prlcing qojusWainnuelty
g. Noel vAl 06MIealt cooilrq eauipment need to woler Pepsi Products
h. AN Pepsi equipment provided , service and maintain all Pepsi cooling equipment free of
charge
901 8S47997 10:32:19 a.m. 06-28-2012 3/4
i. This agreement is axckiisWe 20 oz only. No carbonated tA 11bt0tain or can
1W beverages
i. All beverages must be purchased directly from the local Pepsi%verages Company,
failure to remain exclusive or buy product from another source will result in a request for
all monies paid, to be paid back to Pepsi at a pro rated basis.
5. All payments, including the value of donations, made by Pepsi to Customer under
Paragraph S of this Agreement shah be deemed earned at an equal praraW rate per month for
the purposes of this Agreement,notwithstanding the date of actual payment.
8 Customer hereby licenses and appoints Pepsi, through its Brands,as the sole,
exclusive and official Beverage supplier,distributor and advertiser of Customer and the Facilities.
Customer shall cause the Brands to be exclusively available at Ute FOCOtfes and no Beverages or
Beverage related items Including,but not limited to,cups or premium Items,that compete with or
are the some as or similar to the Brands shall be made available,advertised and/or promoted at
the Facilities or by Customer,
7. Customer recognizes that Pepsi has paid valuable consideradi;616 ensure an
exclusive Beverage associatlonal relationship with Customer with fesped1b an exclusive
Beverage supply and distribution program and that any dilution pr.dirtlax>Ai n of such exclusivity
seriously Impairs PepsPs valuable rights. Accordingly,in the eyern another person or entity
attempts,without Pepsi's expficlt consent,to associate Beverages that corripate with or are the
*$me as or similar to the Brands('Competitive Products )with Customer pr to suggest that
Competitive Products are endorsed by or associated with CusttxtlnrbYrt*ffdirectlyor
indirectly to Customer(ah of which actions described herein ars sonvidmies referred to as
'Ambush Marketing"),Customer will promptly oppose such artlons and cooperate with Pepsi's
efforts to stop the Ambush Marketing and to protect the exclusiverights granted to
Pepsi in this Agreement. M the event any such Ambush Marketing occuraduring the Term or any
renewal thereof, immediately upon learning thereof, each party shall fk&y0-aother party hereto.
• 8. All art work and logo sheets to be used In any advertiseirtents,signage and press
releases promoting the Brands are subject to the prior mutual approval of Pepsi and Customer,
with neither party unreasonably withholding such approval.
9. Except as may otherwise be required by this Agreement,law or legal process,no
party shad disclose to any thirst party the terms and conditions of thilsAWmiment.
10. Except If prohibited by law,during the entire Term,Pep61 shall provide and supply
Customer with all necessary equipment to dispense the Brands at the feces without charge;
provided that all Beverages are supplied to Customer and the Facilities by Pepsi as set forth
above and that the orgy products dispensed from such equipment are the Brands. Pepsi will
provide service on all equipment without charge to Customer. A I rights,We and interest in all
Pepsi equipment supplied to Customer shall at all times remain with Pepsi.
11 Customer represents and warrants to Pepsi that all appropriate approvals required to
enter into this Agreement have been granted and the individual executing this Agreement on
behalf of Customer has been duly authorized by any and all persons or entitles of which
authorization is required to enter into this Agreement on behalf of Customer. Customer also
agrees thAt at no time will it dhahenge,contest, disclaim or decry the autho tyof the individual
signing this Agreement on behalf of Customer or use as a basis to void,cancel or nullify this
Agreement a claim that the Individual signing below was not ault?orized to sign this Agreement on
behalf of Customer. Further,Customer guarantees and warrants that the execution,delivery and
performance of this Agreement by Customer wig not and does not violate any agreements with or
the rights of third parties.
2
r..
901 8547997 10:32:50 a.m. 06-28-2012 414
12- In the event any of the covenants, agreements, terms or provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect,the validity of the remaining
covenants,agreements,terms and provisions contained herein shall not In any way be affected,
prejudiced or disturbed thereby.
13- If Customer fails to perform any of the promises set forth in thio.;AgIrIsement,then as
an option but no;as its sole remedy,Pepsi may terminate this Agreement ff;ft Agreement is
terminated for any reason.Customer agrees to return to Pepsi a pro rata pvrtfofi of all manelary
payments,including the value of donations,made to but not lamed by Customer under
Paragraphs 5 of this Agreement. Further,any such breach by Customer shall be deemed as
authorization to Pepsi to allow Pepsi lminedlate access to the Fe011ities to take possession of
each and every piece of Pepsi's equipt>tlentwithout any ciaim of trespass.
14. Any failure by either party hereto to enforce at any time or for."period of time any
one or more of the terms or conditions of this Agreement shall not be a waiver of such terms or
conditions or of either party's right thereafter to enforce each and every term and condition of this
Aereefnent
15, It Is mutually understood and agreed, end it Is the intent of Pepsi and tXatomer that
an hdependent contractor rebattonshp be established and Is hereby established under the terms
an.0101nditions of this Agreement that employees of Customer are not,nor shall they be deemed
to`be,'employees of Pepsl,and, that employees of Pepsi are not nor shall they be deemed to be
*rooyees of customer.
16. This Agreement may nM be assigned by either party herift wrWtout the.eatpress
tAi to consent of the other
17. This Agreement fully expresses the entire understanding of.pep6l*td Customer.
Any and all prior understandings are hereby canceled. No future changes In thb terms of this
• Agreement shah be valid,except when and If reduced to writing and signed by both Pepsi and
Cwtomer,by legally authorized officials thereof.
IN WITNESS WHEREOF,the parties have executed tt.ts Agreertlaftt.114 ofthe daft and
year first above written
City of Bateavfile Pepsi Beverastts Corr Oqu
By
-ilName: Name: 10 it 0it C rip /dS
Tillie: Title: U)JT AAr�AW5C-_ _
Address
Federal ID
3