Loading...
HomeMy WebLinkAbout2014-02-8115691 ORDINANCE NO. 2014-2-8115 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING AN AGREEMENT WITH PEPSI MIDAMERICA CO., FOR EXCLUSIVE BEVERAGE AND SNACK PROVIDER SERVICE IN PADUCAH PARKS FACILITIES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: SECTION 1. Recitals and Authorization. The City hereby approves the Agreement with Pepsi MidAmerica Co., in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary and desirable and in the best interest of the City to enter into the Agreement for the purposes therein specified, and the execution and delivery of the Agreement is hereby authorized and approved. The Mayor of the City is hereby authorized to execute said Agreement. The agreement is for seven (7) years and contains two (2) — four (4) year renewal options. SECTION 2. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 3. Compliance With Open Meetings Laws. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. SECTION 4. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. SECTION 5. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. Mayor ATTEST: Tammara S. Sanderson, City Clerk Introduced by the Board of Commissioners, February 4, 2014 Adopted by the Board of Commissioners, February 18, 2014 Recorded by Tammara S. Sanderson, City Clerk, February 18, 2014 Published by The Paducah Sun, February 22, 2014 \Ord\parks\agree-pepsi 692 „....... _... ........ .. �_L• ,..._ :�::--JJ_- L L .__ .. ;:. i. .:,� ._. EXHIBIT A AGREEMENT THIS AGREEMENT made and entered into this day of , 2014, by and between PEPSI MIDAMERICA CO., a Missouri Corporation, hereinafter called First Party, and PADUCAH PARKS SERVICES (and any additional property owned and /or acquired by the Parks Services during the length of this agreement);herein collectively referred to as Second Party. WITNESSETH: WHEREAS, the parties have agreed that the First Party shall be the exclusive beverage and snack provider for Second Party, and will provide a one-time monetary contribution of Thirty - Two Thousand, Five Hundred and Fifty -Eight Dollars and Twenty -Six Cents ($32,558.26) in year one (1) of this Seven (7) year agreement (with two (2) — four (4) year renewal options), in addition to an annual contribution of Three Thousand Dollars ($3,000) for Sponsorship. NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties agree as follows: 1. First Party agrees to provide a one-time, upfront monetary contribution of Thirty -Two Thousand, Five Hundred and Fifty -Eight Dollars and Twenty -Six Cents ($32,558.26) to the Second Party for the purchase of Scoreboards and Field Signs. (Quotes and Example Images provided in the First Party's Proposal.) First Party further agrees to provide an annual monetary contribution of Three Thousand Dollars ($3,000) to Second Party for sponsorship support, for each of the seven (7) years of this Agreement. This shall not exceed Twenty -One Thousand Dollars ($21,000) in total. Total monetary contributions to Second Party are not to exceed Fifty -Three Thousand, Five Hundred and Fifty -Eight Dollars and Twenty -Six Cents ($53,558.26) over the life of this seven (7) year Agreement. Please see Page 4 of this Agreement for additional Sponsorship information. 2. Second Party agrees to purchase, display and dispense only beverages provided directly by First Party, throughout the Second Party's Property and any additional property the Second Party acquires during the length of this Agreement. 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 syrups, powders, crystals, concentrates or otherwise, from which such drinks and beverages are made. Products shall mean all items of the First Party to include, but are not limited to cups and CO2. 3. The First Party will install and maintain ownership of all other dispensing equipment placed throughout the Second Party's property, in all locations and events where refreshments are available. Second Party also expressly agrees to the following: a. Require all concessionaires to use First Party P.E.T. 20oz package and/or fountain products. Second Party will purchase all products direct from First Party. Pricing will be set at $22.50/case on 20oz CSDs, $20.40/case on 20oz Gatorade products and Local Courtesy Price for 5gal Syrup Post -Mix in year one of this Agreement. All other products to be purchased at wholesale price levels. All products subject to an annual five percent (5%) price increase. b. All vendors will be full service to include a mix of : 20 oz. carbonated soft drinks (CSD), 20 oz. isotonic and bottled water, ready -to -drink juices, "sports drinks", tea drinks, fruit punches and ades. Minimum vend price in year one will be $1.50 on 20oz CSDs and $0.75 on 12oz CSDs. Both Parties will mutually agree upon all vending machine locations and agree to standard pricing levels as set by First 1 Party. J� Except as may otherwise be required by law or legal process, neither party hereto shall disclose to any third party the terms and conditions of this Agreement. d. First Party to retain first right of refusal on all snack and coffee vending if available during the lifetime of this Agreement. No commissions to be paid on snack or coffee vending. 693 4. 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 party 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. 5. 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. 6. 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 Paducah, KY under the rules then obtaining of the American Arbitration Association. The parties hereto expressly stipulate that the arbitrator(s) shall have full 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 party 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. 7. Venue and Trial by Jury. 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 McCracken County, Kentucky and to the fullest extent emitted by law, the parties waive any objections or defenses they may have to the exercise of jurisdiction 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. 8. Governing Law. This agreement shall be governed by and construed according to laws of the State of Kentucky. 9. Waiver and Cumulative Remedies. Neither party 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 no 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 party shall be cumulative and may be exercised separately or concurrently. 10. 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. H. 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. 12. 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 Z 1. • a nationally recognized overnight mail service to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to First Party: PEPSI MIDAMERICA, CO. Attn: Harry L. Crisp II Chairman and CEO P.O. Box 1070 Marion, Illinois 62959 Fax: (618) 998-3260 Email: eclayton@pepsimidamerica.com Customer Service 800-827-7020 If to Second Party: PADUCAH PARKS SERVICES Attn: Mark H. Thompson Director 1400 H.C. Mathis Drive Paducah, KY 42001 Phone: (270) 444-8696 Fax: (270) 444-8627 mthompson@paducahky.gov 13. 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. 14. 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 party, which consent shall not be unreasonably withheld. The terms of this Agreement shall bind the parties and their permitted successors and assigns. 15. 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. 16. 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. 17. 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 assigns of such party shall be included and all covenants and agreements contained herein by or on behalf of any party shall bind and inure to the benefit of their respective heirs, trustees, executors, administrators, successors and permitted assigns, whether so expressed or not. 18. Entire Agreement. This Agreement shall constitute the entire agreement of the parties concerning 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 in writing signed by all the parties. In the event that litigation arises as the result of any previous beverage supply agreements between the Second Party and any previous beverage supplier/bottler, Second Party agrees to defend, and hold harmless, First Party throughout the course of litigation and/or alternative dispute resolution proceedings. Second Party represents and warrants to the First Party that the execution, delivery and performance of this Agreement by the Second Party will not violate any agreements with, or rights of, third parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PEPSI MIDAMERICA CO. Marion, Illinois Chairman PADUCAH PARKS SERVICES Paducah, Kentucky Director 695 Paducah Parks Services / Pepsi MidAmerica Sponsorship Information Event Da s Dat s Approz.#Served SponsorshiaCash, Sponsorship Product Type & SponsashipSiltnaJ;e&Material Amount Vahre 4Banners to Promote the Event. Event Easter Egg Dash Tues/fhurs 2weekspriortoEaster 750 $300.00 Trailer wilertorConcessaanfMovies in the Park. 4 Banners to Promote the Event. Event MoviesnthePark 3rd &4th Thursdays 50-150 $300.00 Traik;rtorwConcession niMoviesin May•luly the Park. Bikes on Broadway 2ndSunday 150-350 $300.00 4BannerstoPromote the Event. June -October 1 Event Trailers placed and picked up July 4th July 4th 10,000 $300.00 for Concession Sales to fund Parks Celebration rtmentEvents. Youth Triathlon 3rd Saturday in July Soo $300.00 4 Banners to Promote the Event. Touch a Truck 3rd/4th Thursday 600-800 $300.00 in September Fall Festival 3rd Saturday in 500 $300.00 4Banners toPromote the Event. October Veteran's Day November 11th 1500 $300.00 Parade Donatiwof(4)Cases ofHotChocolate EvwtTraBerplaced and picked upfor Christmas Parade 1st Saturday 10,000 $300.00 Mbrand (2)Cases ofCups. (Est,$300.00 the Christmas Parade for Free Hat in December Value.) Chocolate. Candy Cane Hunt BUM Saturday 75.150 $300.00 4 boners to Promote the Event. in December Adult Athletic Seasonal 100400 each (4) Scoreboards and (4) Field Marker Banners to advertise Sign-up Dates. Leagues Signs. See Quotes (4) Scoreboards and (6) Feld Marker SiBns,(1)Basketball Scoreboard and (2) Banners to advertise Sign-up Dates. Youth Athletic Seasonal 50450 each Soccer Scoreboards. (SeeQwtes.) Advertise in the local Newspaper for Leagues Shelving for placement ofSlushie Sign-up Dates (1) Week prior. Machine. (Est.$500.00Value) $32,55816 (1)TimePaymentToW: (ScoreWrds,Field Signs&Shelving $3,01100 $300.00 $1A00 AmualTotal: (Annual Donation (ttotchocdate&Nps) (Banners & Newspaper Ads) 7yr. Agreement Total: VIAORA $34,658.2 $7,000. Grand Total: 52bS816