07-E Coca Cola Agr
.-
DRAFT
F:ATTORNEY/RESWORK/CURRENlìParis Coca Cola Bottling Agreement
May 12,2005
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS,
PARIS, TEXAS, APPROVING AND AUTHORIZING AN AGREEMENT
BETWEEN THE CITY OF PARIS AND PARIS COCA-COLA BOTTLING
COMP ANY OF NORTH TEXAS FOR THE PURCHASE OF
SCOREBOARDS AT THE PARIS SPORTS COMPLEX IN RETURN FOR
SAID BEVERAGE AGREEMENT; MAKING OTHER FINDINGS AND
PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the Paris Coca-Cola Bottling Company of North Texas has proposed an
agreement to the City of Paris whereby the bottling company would pay the sum of$12,500 towards
the construction and erection of scoreboards at the new Paris Sports Complex; and,
WHEREAS, in return for the paYment of the aforesaid sum and the erection of said
scoreboards and associated equipment, the City would sign an agreement designating as the
exclusive provider of beverage products, those products conveyed and offered by Paris Coca-Cola
Bottling Company of North Texas; and,
WHEREAS, Section 252.022 (14) of the Local Government Code exempts from competitive
bidding goods purchased by a municipality for subsequent retail sale by the municipality; and,
WHEREAS, the City Council finds and determines that the aforesaid compensation in
furtherance of erection of the sports complex scoreboards serves a public purpose and is in the best
interest of the citizens of the City of Paris, and that the agreement for beverage sale is beneficial to
the City of Paris; NOW, THEREFORE,
BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS,
TEXAS:
Section 1. That the findings set out in the preamble to this resolution are hereby in all things
approved.
Section 2. That an agreement by and between the City of Paris and Paris Coca-Cola Bottling
Company of North Texas, for construction of scoreboards at the Paris Sports Complex, in return for
exclusive sale and vending of beverages at the aforesaid complex, a copy of which said agreement
is attached hereto and for all purposes incorporated herein as Exhibit A, shall be and is hereby in all
things approved, and the Mayor is hereby authorized to execute and the City Clerk to attest to the
aforesaid agreement.
-
I
..
.
Section 3. That this resolution shall be effective from and after its date of passage.
PASSED AND APPROVED this 25th day of July, 2005.
ATTEST:
Curtis Fendley, Mayor
Janice Ellis, City Clerk
APPROVED AS TO FORM:
Larry W. Schenk, City Attorney
I
BEVERAGE PROVIDER AGREEMENT
This agreement ("Agreement") is made between Paris Coca-Cola Bottling Company
of North Texas, a Texas Corporation (hereinafter referred to as ("Beverage Provider") and
the City of Paris having its principal place of business at 50 W. Hickory, Paris, Texas
(hereinafter referred to as "City").
WHEREAS, Beverage Provider is dedicated to being responsive to the needs of the
City and to improving the communities in which it does business; and
WHEREAS, City is vested with the appropriate authority and wishes to grant to
Beverage Provider the exclusive beverage availability rights described herein with respect
to the City's new Paris Sports Complex Softball Facility (hereinafter referred to as the
" Complex" . )
NOW, THEREFORE, in consideration of the acts and promises contained herein,
the parties hereby agree as follows:
A.
DerIDed Terms.
1.
"Beverages" shall mean all nonalcoholic beverages of any kind, but shall
not include fresh-brewed unbranded coffee and tea products, unflavored
dairy products, water drawn from the public water supply or unbranded
juice squeezed fresh at the Complex (as defined below).
2.
"Products" shall mean Beverages products purchased directly from
Beverage Provider or sold through vending machinès owned and stocked
by Beverage Provider.
3.
"Competitive Products" shall mean all Beverages other than Products.
4.
"Complex" shall mean and include the entire premise of the City of Paris
Sports Complex Softball Facility.
B
Term. This Agreement shall be a term of one (1) year effective the date of final
execution thereof, automatically renewable for an additional four (4) one-year
terms; provided, however, the City may terminate this Agreement at any time for
cause following thirty (30) days written notice to Paris Coca Cola of intent to
terminate. Likewise, the City may terminate this Agreement by providing thirty
(30) days written notice to the company in advance of any automatic renewal
period, subject, however, to the City's obligation to make a pro rata
reimbursement (based on the number of years out of five (5) the Agreement has
concluded) of a portion of those monies paid to the City pursuant to paragraph C
of this Agreement.
c.
~onsibi1ities ofBevera~Provid~. In order to advance the mission of the City,
to benefit the Complex, in exchange for the rights granted to Beverage Provider
Beverage Provider Agreement - Page 1
E.XHIBIT A
,
I
D.
hereunder, Beverage Provider agrees to provide the following support described
below:
1.
Beverage Provider shall pay the cost of purchasing a Scoreboard, up to
$12,500, including the freight charges.
Responsibilities of City. City hereby grants to Beverage Provider the following
exclusive Beverage availability and merchandising rights:
1.
City shall cause the Products to be the exclusive Beverages sold, dispensed.
served or sampled at all locations and at all functions at the Complex,
including all concessions, coolers and vending machine locations. No
Competitive Products shall be made available at the Complex. City will
serve al1200z. and 240z. products along with fountain BIB with guaranteed
favorable pricing as shown in Exhibit A attached hereto.
2.
City shall offer a wide variety of Beverage Provider's carbonated and
noncarbonated Products during all hours and at all locations in the
Complex.
3.
City shall promote the sale of Products by causing all Products hawked in
stands(if any) to be sold in approved trademarked cups and plastic bott 1 es
(currently twenty-ounce), for all sporting events and during all events when
any items of any make or description are hawked in the stands of the
Complex.
4.
City shall use and cause all concessionaires (If applicable) to use
Coca-Cola@ trademark cups purchased from Beverage Provider. If Teams
use isotonic Products, use Products with POWERADE@ trademark cups.
5.
Materials promoting Products at the point of sale on Complex and all menu
boards, Scoreboard, or other similar Equipment and equipment dispensing
Beverages at the Complex shall be prominently displayed and are to be
clearly visible to the purchasing public. City shall be given the right to
preview all materials and to rej ect any materials reasonably deemed by the
City to be offensive, disruptive or contrary to sound practice.
6.
Beverage Provider shall be entitled to premiere and exclusive Beverage
sign age rights on the Scoreboard and at the Complex and City will not
grant sign age and advertising rights at the Complex with respect to any
Competitive Products.
7.
City shall grant to Beverage Provider the exclusive Beverage vending rights
at the Complex and permit Beverage Provider to place a minimum of 5
Beverage vending machines in mutually agreed upon locations as required
to meet Beverage availability needs at the Complex (if City decides to
change to full service).
Beverage Provider Agreement - Page 2
I
8.
E.
F.
G.
City shall operate and maintain the Scoreboard in good condition and
repair during the Term of this Agreement at City's expense and allow
access by Beverage Provider's personnel to change the promotional
message on the Scoreboard, such changes to be in Beverage Provider's sole
discretion and at Beverage Provider's expense and subject to City approval
of content, not to he unreasonably withheld.
9.
City shall pay all costs of operating the Scoreboard including, but not
limited to, all utility charges and lamp replacement.
10.
City shall maintain the following insurance:
a.
All risk property insurance in an amount equal to the replacement
cost of the Scoreboard, and shall be self insured for an amount in
excess of its liability under the Texas Torts Claim Act.
Ownershi
1.
The Scoreboard shall be the property of the City.
2.
City shall pay all taxes and permit and license fees, if any, with the
erection, use or ownerslùp of the Scoreboard.
3.
THE PROVISION OF THE SCOREBOARD IS ON AN "AS IS" BASIS.
BEVERAGE PROVIDER HEREBY DISCLAIMS ANY AND ALL EXPRESS AND
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF
MERCHANT ABILITY AND FITNESS FOR INTENDED USE, AND BEVERAGE
PROVIDER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL
OR INDIRECT DAMAGES.
Equipment. During the Term, Beverage Provider will loan to City, pursuant to the
terms of Beverage Provider's equipment placement agreement, at no cost, that
Beverage dispensing equipment reasonably required and as mutually agreed upon
to dispense Beverages at the Complex ("Dispensing Equipment"). City represents
and warrants that electric service on the Complex is proper and adequate for the
installation of Dispensing Equipment and City agrees to indemnify and hold
harmless Beverage Provider from any damages arising out of defective electrical
servIces.
Indemnification.
1.
To the extent permitted by state law, City agrees to defend, indemnify and
hold Beverage Provider harmless from and against all claims, suits,
liabilities, costs and expenses, including reasonable attorneys' fees, for any
injury, damage or loss to persons, including death, whether they be third
persons or employees of either of the parties hereto, or any injury, damage
or loss of property arising out of the purchase, use, or operation of the
Scoreboard by City or third parties.
Beverage Provider Agreement - Page 3
,
I
H.
I.
2.
This indemnity shall survive the termination of this Agreement and shall
not apply to any injury, damage or loss caused in whole or in part by the
negligence of Beverage Provider.
Termination.
1.
If City fails to perform any of the promises set forth in this Agreement, then
as its sole remedy, Beverage Provider may terminate this Agreement, and
City shall return the Dispensing Equipment to Beverage Provider and pay
to Beverage Provider, within (30) days, a pro rata portion (based on the
number of years out of five (5) the Agreement has concluded) of the amount
Beverage Provider has invested in the purchase of the Scoreboard.
2.
Notwithstanding the other provisions of this Agreement, if any federal, state
or local law, rule, regulation or order prohibits, restricts, or in any manner
interferes with, limits or prohibits the use of the Scoreboard by City or the
availability of Beverages at any time during the Term of this Agreement or
if for any reason a material component of the Complex is closed, then as its
sole remedy, Beverage Provider may terminate this Agreement and City
shall return the Dispensing Equipment to Beverage Provider and pay to
Beverage Provider, within (30) days, a pro rata portion (based on the
number of years out of five (5) the Agreement has concluded) of the amount
Beverage Provider has invested in the purchase of the Scoreboard.
3.
City represents and warrants that it has full right and authority to enter
into this Agreement and to grant and convey to Beverage Provider the rights
set forth herein. Upon expiration or revocation of such authority, and as its
sole remedy, Beverage Provider may terminate this Agreement, and City
shall return the Dispensing Equipment to Beverage Provider and pay to
Beverage Provider, within (30) days, a pro rata portion (based on the
number of years out of five (5) the Agreement has concluded) of the amount
Beverage Provider has invested in the purchase of the Scoreboard.
4.
Beverage Provider shall have the right to withhold and not pay further any
amounts which may become payable to City pursuant to this Agreement if
City (i) has failed to perform its obligations hereunder, (ii) Beverage
Provider's rights hereunder have been lost, limited or restricted, or (iii)
there exists a bona fide dispute between the parties.
Miscellaneous. This Agreement and its Exhibits constitute the entire
understanding of the parties and no terms may be altered or waived except by the
mutual written consent of both parties. This Agreement may not be assigned nor
the Scoreboard sold or otherwise conveyed by City during the term of this
Agreement without Beverage Provider's written consent. Each of the parties hereto
agrees that it will, in its performance of its obligations hereunder, fully comply
with all applicable laws, regulations and ordinances of an relevant authorities and
shall obtain all licenses, registrations or other approvals required in order to fully
perform its obligations hereunder.
Beverage Provider Agreement - Page 4
,
I
BEVERAGE PROVIDER:
By:
Printed Name:
Title:
Date:
Beverage Provider Agreement - Page 5
I
CITY OF PARIS, PARIS, TEXAS
By:
Printed Name:
Title:
Date:
Beverage Provider Agreement - Page 6
II
EXHIBIT A - YEAR 1
Pricing
200z.NCB/CSD: $16.00
20 oz. Powerade: $18.00
20 oz. Dasani: $13.00
24 oz. Oasani: $17.00
Fountain Pricing
BIB 5.0: $57.55
BIB 2.5: $29.40
PACKAGE
Beverage Provider Agreement - Page 7
I
EXHIBIT B
Commission Schedule
COMMISSION RATE
VEND PRICE