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HomeMy WebLinkAboutBeverage agreement 2013 BEVERAGE AGREEMENT Date: May 17, 2013 Parties: BOTTLER: Coca -Cola Refreshments USA, Inc. d /b /a Coca -Cola of Louisville. KY, a Delaware corporation Coca -Cola 1661 W Hill St Lou isv i I le, KY 40210 ACCOUNT: Parks and Recreation City of Jeffersonville, 500 Quartermaster Court Jeffersonville, IN 47130 1. Definitions (a) "Agreement Year means each twelve -month period during the Term beginning with the first day of the Term. (b) Beverage' or "Beverages" shall mean all non- alcoholic beverages (i.e. anything con- sumed by drinking), whether or not such beverages (i) contain nutritive, Food, or dairy ingredients. OR (ii) are in a frozen form. This definition applies without regard to the beverage's labeling or marketing. Powders, syrups. grounds (such as for coffee). herbs (such as for tea), concentrates, and all other beverage bases from which Beverages can be made are deemed to be included in this definition. For the avoidance of doubt. "liquid flavor enhancers", "liquid water enhancers". and non- alcoholic beverages sold as "shots" or "supplements' are considered Beverages. "Beverage" or "Beverages" shall not include fresh- brewed unbranded coffee and fresh - brewed unbranded tea products, unflavored dairy products, water drawn from the public water supply or unbranded juice squeezed fresh at the Facility. (c) "Products' shall mean Beverage products purchased directly from Bottler or sold through vending machines owned and stocked exclusively by Bottler. (d) "Competitive Products" shall mean all Beverages which are not Products. (e) "Concessionaire" means any current or future third -party food service provider under agreement with Account at the Facility that directly or indirectly relate to the service of Beverages. (f) "Facility" or "Facilities" shall mean the entire premises and properties of Parks and Recreation City of Jeffersonville, IN., on file located at Parks and Recreation City of Jeffersonville, 500 Quartermaster Court, Jeffersonville, IN. 47130 including all currently existing and future buildings, and includes, without limitation, the grounds, all vending and concession areas. sidelines, benches and locker rooms, branded and unbranded food service outlets and dining facilities. 2. Term: March 18, 2013 (Effective Date") through March 17, 2018. 3. Advertising Rights C'`,.U sersq65b42\AppData' LoenIMicrosott indows'.Tcmporary Internet Files ' Cont cut Outloak '•U ?LT 85l !?P'.C'onrtnct, doex (a) Account hereby grants to Bottler the exclusive right to advertise Beverages and specifically Products (i) at the Facility and (11) in connection with the Facility. No permanent or temporary advertising, signage or trademark visibility for Competitive Products will be displayed or permitted anywhere at the Facility. (b) Account hereby grants Bottler the specific advertising rights and benefits as indicated on Exhibit A hereto. (c) Account agrees that Bottler's advertising shall be positioned at all times in such a manner that the advertising message is in no way obscured (electronically or otherwise) and is clearly visible to the general public. The Products shall be prominently listed on any menu boards located at the Facility and all equipment dispensing Products shall be prominently identified with the appropriate trademarks /logos. (d) Account further agrees that all Products will be dispensed in Bottler's equipment and that no other trademarked, equipment, coolers or containers will be permitted. 4. Sponsorship Rights (a) Bottler will have the exclusive right to advertise the Products as the "Official" or "Exclusive" soli drink, sports drink, water. tea, energy drink and/or juice or juice drink, etc. of the Facility. (b) Account hereby grants to Bottler a royalty -free license, exclusive for Beverages, to use the trademarks, logos and other intellectual property of the Account and Facility ('Account Marks ") in connection with the promotion of Products. Such promotion may occur in advertising (TV, radio, and print), packaging, vessels. promotional materials, and point of sale materials for Products and may be in connection with the marks and logos of Bottler's customers. (c) Account will not enter into any agreement or relationship whereby any Competitive Products are associated in any manner with Account, the Facility, or any of the Account Marks in any advertising or promotional activity of any kind. 5. Product Rights (a) Account hereby grants to Bottler the exclusive right to sell or distribute Beverages at the Facility. Account and /or its Concessionaires shall purchase all Products, (and cups, lids and carbon dioxide, if applicable) directly from Bottler. No Competitive Products may be sold, dispensed, sampled or served anywhere at the Facility. (b) Account hereby grants to Bottler the exclusive Beverage vending rights at the Facility. Account agrees that Bottler shall have the right to place a minimum of three (3) Beverage cooler machines in mutually agreed upon locations at the Facility. (c) During the Term, Bottler will loan to Account, pursuant to the terms of Bottler's equipment placement agreement, at no cost (except as prohibited by law, rule or regulation, in which case the rent charged shall be the lowest legal rate available from Bottler), that Beverage dispensing equipment reasonably required and as mutually agreed upon to dispense Beverages at the Facility ( "Equipment "). Account represents and warrants that electrical service at the Facility is proper and adequate for the installation of Equipment, and Account agrees to indemnify and hold Bottler harmless from any damages arising out of defective electrical services. 7 6. Consideration In consideration of the rights and benefits granted to Bottler hereunder, Bottler agrees to provide Account with the following: (a) Pricing. Account shall be entitled to purchase bottle /can Products from Bottler in accordance with the price schedule set forth in Exhibit C. Such prices shall remain in effect until March 17, 2014. Thereafter, such prices will be subject to an annual increase of no more than five percent (5 %) over the previous Agreement Year's price, except in the event of an increase in a component of Bottler's cost of goods, manufacture or delivery, or increases in taxes, deposits and other government related fees in which case Bottler may increase prices to cover such increased costs. Annual price increases shall oc- cur automatically on March 18. Bottlers may offer tiered pricing that requires Account to order certain quantities or to comply with Bottler's minimum order quantities to get the contractual price or may charge a de- livery fee if such minimums are not met. (b) In the event Account employs a Concessionaire, Account will cause Concessionaire to purchase from Bottler all requirements for Beverages (and cups, lids and carbon dioxide, if applicable). Such purchases will be made at prices and on terms set forth in Bottler's existing agreement with Concessionaire. if any. If no agreement exists between Concessionaire and Bottler, such purchases will be made at prices and on terms set forth in this Agreement. Account acknowledges that there will be no duplication of allowances, finding or benefits (including pricing) to Account or Concessionaire if Concessionaire has an existing agreement with Bottler. 7. Miscellaneous (a) During the Term, Account shall provide to Bottler those items set forth in Exhibit E hereto. 8. Termination (a) If Account breaches any of its obligations set forth in this Agreement, then at its option and not as its sole remedy. Bottler may terminate this Agreement, and Account shall (i) return any Equipment, (ii) pay to Bottler a pro rata portion of the costs of refurbishing and installing the Equipment, and (iii) pay to Bottler the unearned portion of pre -paid Sponsorship Fees or other upfront funding, Warty. (b) 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 the sale or advertising of Beverages at any time during the Term of this Agreement or if for any reason the use of the Facility declines, then at its option and not as its sole remedy, Bottler may terminate this Agreement and Account shall (i) return any Equipment. (ii) pay to Bottler a pro rata portion of the costs of refurbishing and installing the Equipment. and (iii) pay to Bottler the unearned portion of pre -paid Sponsorship Fees or other upfront funding, if any. 3 (c) Account represents and warrants that it has full right and authority to enter into this Agreement and to grant and convey to Bottler the rights set forth herein. Upon expiration or revocation of such authority, then at its option and not as its sole remedy, Bottler may terminate this Agreement, and Account shall (i) return any Equipment, (ii) pay to Bottler a pro rata portion of the costs of refurbishing and installing the Equipment, and (iii) pay to Bottler the unearned portion of pre -paid Sponsorship Fees or other upfront funding, if any. (d) Bottler shall have the right to withhold and not pay further any amounts which may become payable to Account pursuant to this Agreement if: (i) Account has failed to perform its obligations hereunder. (ii) Bottler's rights hereunder have been lost. limited or restricted, or (iii) there exists a bona fide dispute between the parties. (e) Nothing in this section shall operate to restrict any of Bottler's other remedies in the event of a material breach by Account. 9. Governing Law This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. without reference to its conflict of law rules. 10. Compliance with Law 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 all relevant authorities and shall obtain all licenses, registrations or other approvals required in order to fully perform its obligations hereunder. 11. Retention of Rights Account shall not obtain, by this Agreement, any right. title or interest in the trademarks of The Coca -Cola Company or Bottler, nor shall this Agreement give Account the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Bottler or The Coca -Cola Company. 1?. Confidentiality During the Term. and for a one (1) year period thereafter. the parties shall keep the terms of this Agreement confidential. 13. Jury Waiver EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUN- TARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY AC- TION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER AP- PLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER ARISING IN CON- TRACT, TORT OR OTHERWISE. 14. Entire Agreement 4 This Agreement and its exhibits contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be assigned without the prior written consent of all parties: provided, however, that Bottler may assign this Agreement in connection with its reorganization or the sale of all or substantially all of its assets. All amendments to or waivers of this Agreement must be in writing signed by all the parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. 130 "EE f 4, AC NT Y: L .'? By: T Printed ,/ai • aril; _ IT Printed Narne: ‘11 1 k/Or` , 14".1 Title: _ -� � i� � L �� �Title:� �TQ �S ©� PA Date: � ,� —�.� �' `"�, Date: �' )? e 3 5 EXHIBIT C INITIAL PRICE SCHEDULE* Pam Price per case 20 ounce bottles (carbonated) $ 18.00 20 ounce bottles (Powerade) $ 16.80 20 ounce bottles Dasani water $ 9.60 20 ounce bottles Minute Maid refresh $ 18.00 20 ounce bottles Fuze Tea $ 18.00 20 ounce bottles Smart Water $21.36 18.5 ounce bottles Gold Peak (12 pack) $ 11.16 10.1 ounce bottles Tummy Yummies (12pk) $ 6.72 16.9 ounce bottles Vitamin Water $ 19.44 12 ounce bottles V8 Splash (12pk) $ 11.16 Post -Mix Price per box Coke Products 5.0 gallon BIB $ 60.00 Coke Products 2.5 gallon BIB $ 30.00 Cups 16 ounce $ 57.90 per 2000 Lids 16 ounce $ 40.45 per 2.000 CO2 20 Ib. cylinder $ 23.00 per cylinder (plus $ 75.00 deposit) *All prices are per standard physical case and exclusive of taxes, deposits, handling tees, and recycling fees. 6