HomeMy WebLinkAboutRes.3079.05-15-2017 BILL NO. 17-72 RESOLUTION NO. 3079
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AGREEMENT WITH PEPSI MIDAMERICA
CORPORATION TO PROVIDE EXCLUSIVE BEVERAGE
AND VENDING MACHINE SNACKS AT THE CAPE
GIRARDEAU SPORTSPLEX
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1 . The City Manager, for and on behalf of the
City of Cape Girardeau, Missouri, is hereby authorized to
execute an Agreement with Pepsi MidAmerica Corporation to
provide exclusive beverage and vending machine snacks at the
Cape Girardeau SportsPlex. The Request for Proposal (RFP) is
attached hereto as Exhibit A. The Agreement shall be in
substantially the form attached hereto as Exhibit B, which
document is hereby approved by the City Council, and
incorporated herein by reference, with such changes therein as
shall be approved by the officers of the City executing the
same.
PASSED AND ADOPTED THIS IS DAY OF 1iLA , 2017 .
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dikt Caznalka"Awdr
Harry E. Rediger, Mayor
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Gaylc Conrad, City Clerk s°a '
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AGREEMENT
THIS AGREEMENT made and entered into this /R"' day of nom, 2017, by and between
PEPSI MIDAMERICA CO.,a Missouri Corporation,hereinafter call First Party,and the
CITY OF CAPE GIRARDEAU,Missouri;herein called the Second Party
WITH-ESSETH:
WHEREAS,the parties have agreed that First Party will be the exclusive beverage and snack
vending machine provider,following a request for proposal duly advertised by the second party
and the subsequent receipt of a proposal from the First Party,at the City of Cape Girardeau
Sportsplex(see Exhibit A)pursuant the terms provided in this Agreement,for a period of Ten
(10)years.
NOW THEREFORE,in consideration of the mutual promises and agreements herein contained,
the parties agree as follows:
1 First Pam agrees to provide the following:
a. A payment of Five Thousand Dollars($5,000)each year of the Agreement,for a total
of Fifty Thousand Dollars($50,000)over the 10 year term. Each$5,000.00 annual
payment shall be payable on or before June 30th of each year. There will be an
additional One Thousand Dollar($1,000)annual payment each year of the Agreement
contingent upon total syrup gallon sales reaching Two Thousand(2,000)gallons within
each year of the contract term,which if reached,will be payable on or before June 30th
of each successive year.
b. A quarterly vending commission rate of Twenty Percent(20%)on drinks sold through
First Party machines.Commission shall be paid based on gross sales,calculated after
all necessary and applicable taxes,fees and refunds.
c. National account pricing will be used on the following items:syrup currently at
$14.53/gallon,bulk CO2 at$0.33/Ib.,20 oz.CSD at$23.15/case and 20 oz.Gatorade at
$22.32/case. All other products will be sold at First Party wholesale pricing. There
will be a 3%price increase annually on all products,which will take place on January 1
of each year.
d. Coke and Diet Coke product option(maximum of 1 selection of each per vending
machine).The City will not advertise Coke products in any manner or method;
however,outside events/programs may utilize Coke as a sponsor and promote their
events as such at the SportsPlex. These outside events/programs may not bring or sell
any Coke products.
e. Prompt and pro-active service(4)hours or less on service calls with regards to re-
stocking,deliveries and repairs or replacing equipment-and weekend services as
requested.
f. A minimum of quarterly scheduled progress and strategy meetings with City/Pepsi
team to review upcoming events,product needs,product performance.and to
implement changes as needed.
g. All coolers,racks,dispensers,bins,machines,CO2 tank,equipment and the like in a
timely manner and at no charge in order to effectively serve the public,and to provide
for an efficient operation for the facility
h. Promotional opportunities on a monthly basis through radio partnerships that will
mention the Cape Girardeau SportsPlex in Cape Girardeau,Missouri,during a variety
of promotional hours within the Pepsi MidAmerica Region.
i. Opportunities to partner on other events as requested and as is mutually beneficial that
may include but not limited to free product and promotions.
2. Second Party agrees to purchase,display and dispense only beverages provided directly by the
First Party,throughout the Second Party's SportsPlex Property Beverages shall mean all
carbonated and non-carbonated non-alcoholic beverages that include,but are not limited to,
carbonated soft drinks,mixers,flavored and unflavored packaged waters,fruit juices,fruit juice
containing flavored drinks,fruit punches and ades;isotonic energy and fluid replacement drinks
(sometimes referred to as"sports drinks"),tea drinks,and all drink or beverage bases,whether in
the form of sumps,powders,crystals,concentrates or otherwise,from which such drinks and
beverages are made with the exception of"smoothies" Products shall mean all items of the First
Party to include,but are not limited to cups and CO2 Vend price will be set at First Party standard
vend prices.
3. The First Party will install and maintain ownership of all dispensing equipment placed throughout
the Second Party's SportsPlex property All vending will be full service to include a variety of
carbonated soft drinks,ready-to-drink juices,tea drinks,fruit punches and other drinks.The First
Pam may also offer snacks,coffee or other foods as desired by the second party
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4 The provisions and restrictions contained in this agreement relate only to the(-IR pe Girardeau
SportsPlex and shall not apply to any other City property or facility
5. In the event of default of this Agreement,the non-breaching party shall give the other party
written notification of such default The Party in default will have 60 days after receipt of said
written notice to remedy the default If the default is not remedied and it is determined that no
reasonable effort to remedy the default has been made,the non-breaching party has the option to
terminate this Agreement upon the expiration of such remedy period. The rights of termination
referred to in this Agreement are not intended to be exclusive and are in addition to any other
rights available to either pato'in law or in equity If,because of riots,war,public emergency,
fire.earthquake,Acts of God,government restrictions,labor disturbances or strikes,business
interruptions or any other prevention of the performance of this Agreement beyond the reasonable
control of the parties hereto.performance under this Agreement shall be suspended until such
time as the reason for delay has ended.
6. Further Actions. Subject to the terms and conditions of this Agreement,each of the parties will
use their best efforts to take or cause to be taken all action,and to do or cause to be done,all
things necessary,proper or advisable to consummate the transactions contemplated by this
Agreement and to execute such further documentation as may be required.
7 INSURANCE.First Party shall procure and maintain,at First Party's expense,General Liability
Insurance on the Equipment and products provided for in this agreement against all risk of loss or
damage to persons or property caused by said equipment or products. Such liability insurance
shall be in an amount no less than$2,000,000 combined single limit bodily injury and property
damage and name Second Party as an additional insured. First Party will carry,at Party's
expense,Workers'Compensation Insurance as required by applicable State statutes. First Party
will deliver a certificate evidencing such coverages,which names Second Party as an additional
insured.
LIABILITY Each party will indemnify and hold harmless the other with respect to any direct or
indirect,consequential or incidental liability,loss,cost,expense,or damage,including reasonable
attorney's fees,resulting from any injury or damage to any person or property to the extent caused
by any act,neglect,default,or omission by the party or any of its agents,employees.or other
representatives. Second Party will be responsible for damage to First Party's Equipment resulting
from vandalism occurring at any of Second Party's Locations. Second Party will assist First
Party in taking all necessary actions against Second Party employees,contractors and other
authorized paries for identified theft or damage of Products or other property of First Party
Second Party agrees to reimburse First Party for Product spoilage due to power failures of the
building at the Second Party's Location lasting more than 30 minutes. Nothing herein is intended
to nor will it relieve either party from liability for its own act,omission or neglect.Any liability
of the second party under this agreement shall be subject to the liability limits for political
subdivisions set out in section 537.610 of the revised statutes of Missouri,and shall be payable
solely from the proceeds of liability insurance covering that occurrence.
8. Dispute Resolution.Any dispute or disagreement between the parties arising out of or relating to
this agreement shall be settled by final and binding arbitration,in Cape Girardeau County,
Missouri under the rules then obtaining of the American Arbitration Association.The parties
hereto expressly stipulate that the arbitrator(s)shall have MI subpoena power and full powers to
fashion appropriate remedies,including without limitation the power to grant equitable and/or
injunctive and/or declaratory relief.Judgment upon the award may be entered in any court having
jurisdiction.The prevailing parry shall be entitled to an award for all costs,expenses,and
reasonable attorney's fees incurred in any arbitration,litigation,or other dispute arising out of or
relating to this Agreement.
9 Venue and Trial by Jun In the event,for any reason,the arbitration provisions of this
Agreement shall not apply or court proceeding are necessary to enforce arbitration,then the
parties hereby agree that jurisdiction and venue for all litigation relating in any way to this
agreement shall be proper only in the Circuit Court of Cape Girardeau County,Missouri to the
fullest extent permitted by law the parties waive any objections or defenses they may have to the
exercise ofjurisdiction by,or to the venue being proper in,the foregoing courts;the parties
further waive any right to trial by jury on any claim,counterclaim,setoff,demand,action or cause
of action arising out of or in any way pertaining to this agreement,or the transactions
contemplated by this agreement,whether now existing or hereafter arising,and whether sounding
in contract,tort or otherwise;the parties agree that any of them may file a copy of this paragraph
with any court as written evidence of the knowing,voluntary and bargained-for agreement
between them irrevocably to waive trial by jury and that any dispute or controversy whatsoever
between or among them,and not subject to arbitration,shall instead by tried in a court of
competent jurisdiction by a judge sitting without a jury.
10. Governing Law This agreement shall be governed by and construed according to the laws of
The State of Missouri.
11. Waiver and Cumulative Remedies. Neither pato'shall be deemed to have waived any of its
rights hereunder unless such waiver is in writing and signed by a duly authorized officer.No
failure to exercise and any delay or omission in exercising any right on the part of either party
shall operate as a waiver of such right,nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof.A waiver on any one occasion shall not
be construed as a ban to or waiver of any right on any other occasion.All rights and remedies of
either pan'shall be cumulative and may be exercised separately or concurrently
12. Severability. If any provision of this Agreement or of any of the documents or instruments
delivered pursuant hereto,or any portion of any provision hereof or thereof,shall be deemed
invalid or unenforceable pursuant to a final determination of any arbitration,court of competent
jurisdiction or as a result of future legislative action,such determination or action shall be
construed so as not to affect the validity or enforceability hereof or thereof and shall not affect the
validity or effect of any other portion hereof or thereof.
13. Survival of Representations and Warranties and Obligations.All representations,warranties,
and obligations contained in this Agreement,unless waived in writing,shall survive the
consummation of any and all transactions contemplated herein.No investigation,audit or other
examination that may have been made or may be made at any time by or on behalf of the parties
shall limit,diminish,or impair or in any way affect the representations and warranties set forth in
this Agreement.
14. Notices. All notices and other communications hereunder shall be in writing and shall be deemed
to have been given when delivered by hand,faxed,email or mailed by registered or certified mail
(return receipt requested),postage prepaid,or for overnight delivery,by a nationally recognized
overnight mail service to the parties at the following addresses(or at such other address for a
parry as shall be specified by like notice):
If to First Party: PEPSI MIDAMERICA,CO.
Ann: Harry L Crisp II
Chairman
P.O.Box 1070
Marion,IL 62959
Fax No.(618)998-3260
Email:eclayton@pepsimidarnerica.com
If to Second Part': CITY OF CAPE GIRARDEAU,MISSOURI
Attn: Scott Meyer,City Manager
Copy to:Julia Thompson,Director of Parks and
Recreation
401 Independence St.
Cape Girardeau,Missouri 63701
Phone No.(573)339-6340
Email:ithompsonecitvofca egirardeau.org
15. Captions. The captions of this Agreement have been inserted only for the purpose of
convenience of references. The captions are not a part of this Agreement and shall not be deemed
in any manner to modify,explain,enlarge or restrict any provision of this Agreement.
16- Assignment;Successors and Assigns. Neither party shall have the right to assign or transfer
any of its rights and obligations under this Agreement without the prior written consent of the
other parry which consent shall not be unreasonably withheld. The terms of this Agreement shall
bind the parties and their permitted successors and assigns.
17 Execution by Facsimile. The parties may execute this agreement by facsimile transmitted
signature and execution of this document may be proven by either party by compilation of
original,photo static or facsimile signatures of the parties and the document.
18. Drafting. Each of the parties has participated in the drafting of this agreement and therefore the
language of this agreement shall not be presumptively construed in favor of either party
19 Successors and Assigns Included in Parties.Whenever herein one of the parties hereto is
named or referred to,the heirs,trustees,executors,administrators,successors and permitted
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assigns of such parry shall be included and all covenants and agreements contained herein by or
on behalf of any party shall hind and mure to the benefit of their respective heirs,trustees,
executors,administrators,successors and permitted assigns,whether so expressed or not
20. Entire Agreement This Agreement shall constitute the entire agreement of the parties
concernmc the subject matter hereof and no other representations,agreements or understandings
between the parties shall be of any force or effect.This Agreement cannot be altered or modified
except m venting signed by all the parties.
in me event that litigation arises as the result of any previous beverage supply agreements between the
Second Parr'and any previous beverage supplier/bottler,First Party agrees to defend,and hold harmless:
the Second Pam throughout the course of litigation and/or alternative dispute resolution proceedings.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first
above written.
PEPSIMIDAMERICA,CO.
Marion,Illinois
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CITY OF CAPE GIR&RDEAU SPORTSPLEX
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