HomeMy WebLinkAbout2013-029 (IMPPORTANT NOTE: Resolution is Null and Void
because the agreement was not executed within
the time specified.)
RESOLUTION NO. 2013-29
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
3 OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
4 VENDOR SERVICE AGREEMENT WITH BCI COCA-COLA BOTTLING
COMPANY OF LOS ANGELES DBA THE COCA-COLA BOTTLING COMPANY
5 OF SOUTHERN CALIFORNIA FOR THE EXCLUSIVE BEVERAGE SALES AND
VENDING RIGHTS AT CERTAIN CITY LOCATIONS.
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7 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
8 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
9 SECTION 1. The Mayor and Common Council of the City of San Bernardino hereby
10 authorizes and directs the City Manager to execute a Vendor Service Agreement with BCI
11 Coca-Cola Bottling Company of Los Angeles dba the Coca-Cola Bottling Company of
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Southern California for the exclusive beverage sales and vending rights to certain City
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14 locations, a copy of which is attached hereto marked Exhibit A and incorporated herein.
15 SECTION 2. The authorization to execute the Agreement is rescinded if the parties to
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the Agreement fail to execute it within sixty days of the passage of this resolution.
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2013-29
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
2 VENDOR SERVICE AGREEMENT WITH BCI COCA-COLA BOTTLING
COMPANY OF LOS ANGELES DBA THE COCA-COLA BOTTLING COMPANY
3 OF SOUTHERN CALIFORNIA FOR THE EXCLUSIVE BEVERAGE SALES AND
4 VENDING RIGHTS AT CERTAIN CITY LOCATIONS.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at ai oint regular meeting thereof, held
7 on the 4th day of February , 2013, by the following vote, to wit:
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9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ x
11 JENKINS x
12 VALDIVIA x
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SHORETT x
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15 KELLEY x
16 JOHNSON x
17 MCCAMMACK x
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19
Geo _earn Hanna, ity Clerk
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The foregoing resolution is hereby approved this 4th day of
21 February , 2013.
23 MS Morris, Mayor
City o an Bernardino
24 Approved as to form:
25 James F. Penman,
City Attorney
26
By: f SztrlaC.L_; -C aC
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2013-29
1 VENDOR SERVICE AGREEMENT
2 THIS AGREEMENT entered into this 4th day of February 2013, by and between
3 BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES doing business as the
4 COCA-COLA BOTTLING COMPANY OF SOUTHERN CALIFORNIA, a Delaware
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Corporation ("COMPANY") and the CITY OF SAN BERNARDINO ("CITY").
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7 WITNESSETH:
8 WHEREAS, CITY owns, operates or is responsible for libraries, police and fire
9 stations, and other facilities such as sports and recreation facilities, parking lots, bus shelters
10 and CITY events; and
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WHEREAS, COMPANY wishes to establish a new agreement with CITY to provide
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beverage refreshments to CITY'S visitors at CITY-owned facilities and to establish a
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14 partnership with the CITY to promote and sell COMPANY'S beverage products; and,
15 WHEREAS, CITY will receive a commission on gross sales of the COMPANY'S
16 beverage products as well as receive sponsorship funding, marketing assistance, and free
17 beverage products from the COMPANY.
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NOW, THEREFORE, the parties hereto agree as follows:
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20 Section 1. GENERAL SCOPE OF SERVICES
21 The CITY shall grant to COMPANY the exclusive beverage sales and vending rights
22 at all CITY locations listed in Attachment 1, attached and incorporated herein. In
23 consideration for the exclusive beverage sales and vending rights to the CITY, the
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COMPANY shall provide, install, and maintain all equipment necessary to facilitate the
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26 continued sale of beverage products, and shall pay commissions to the CITY as set forth
27 herein.
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Exhibit "A"
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2013-29
1 Section 2. TERRITORY/CATEGORY EXCLUSIVITY
2 CITY grants to COMPANY the right of "Territory Exclusivity," for non-alcoholic
3 beverage rights subject to the limitations set forth herein. For the purposes of this Agreement,
4 "Territory Exclusivity" is defined as exclusivity as to all properties listed in Attachment 1,
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owned by the CITY and within the CITY limits, including CITY parks & recreation facilities,
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7 CITY offices, and other public and municipal facilities.
8 The CITY grants to the COMPANY the right of"Category Exclusivity," subject to the
9 limitations set forth herein. For the purposes of this agreement, "Category Exclusivity" is
10 defined as insuring that COMPANY is the only company provided exclusivity with respect to
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all carbonated and non-carbonated, non-alcoholic beverages of any kind, including without
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13 limitation soft drinks, juices, juice drinks, teas, isotonics, water and frozen beverages sold at
14 all CITY owned properties listed in Attachment 1.
15 Section 3. AGREEMENT MONITORING
16 COMPANY designates the Coca-Cola Los Angeles Southern California Rancho
17 Cucamonga Office to represent it and be its sole contact and agent in all consultations with the
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CITY during the performance and implementation of this Agreement throughout the entire
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20 term of the Agreement. Company also designates the Coca-Cola Los Angeles Southern
21 California Rancho Cucamonga Office to be available to answer all questions regarding
22 maintenance and repairs and who will visit the City of San Bernardino on a monthly basis.
23 The Coca-Cola Los Angeles Southern California Rancho Cucamonga Office will supervise
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the delivery and service personnel assigned to the CITY and will be responsible for
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26 maintaining all vending machines in an aesthetically pleasing and operable condition.
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Exhibit"A"
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2013-29
1 CITY hereby designates the City Manager or his/her designee, to represent it and be its
2 sole contact and agent in all consultations with the COMPANY during the performance and
3 implementation of this Agreement throughout the entire term of the Agreement.
4 Section 4. TERM
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The term of this Agreement shall be for five (5) years unless sooner terminated as
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7 herein provided. The term shall commence on July 1, 2012. Any pre-existing activity of the
8 COMPANY with regard to providing commissions and beverages to the CITY shall continue
9 until June 30, 2012. Any new vending machines and equipment shall be delivered, installed,
10 and operational within forty five (45) days from the execution of this Agreement.
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Section 5. VENDING MACHINE LOCATIONS
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CITY shall make its best effort to provide COMPANY with locations for its beverage
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14 products. The CITY shall provide a minimum of thirty-four (34) vending locations
15 throughout the term of this Agreement;
16 A. Vending machine locations: COMPANY shall have access to all vending machine
17 locations designated by CITY. COMPANY shall provide, at its cost, the power
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hook-ups for electrical utility to all vending machine locations. COMPANY shall
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20 have the responsibility to connect the vending machines to the stub-out sites and
21 CITY shall pay for any electrical/utility charges incurred for the operation of the
22 vending machines. Vending machines shall be installed by COMPANY at no cost
23 to the CITY.
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B. City locations: During the term of this Agreement, COMPANY shall have the
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26 exclusive right to sell beverages to CITY locations excluding those locations
27 where the CITY is currently under contract with a third party for the supply of
28 Exhibit"A"
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2013-29
1 beverages. No other third party agreements shall be entered into during the term of
2 this Agreement. Upon expiration of any such third party agreement, the CITY
3 shall include those locations and/or facilities as part of the locations for the
4 purposes of this Agreement.
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C. Exclusivity exclusions: This exclusive right to sell beverages at CITY locations
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7 shall not include the right to sell such beverages at events, CITY-sponsored or
8 otherwise. Notwithstanding any other provision of this Agreement, regardless of
9 sponsorship, this exclusion specifically applies to the Route 66 Rendezvous.
10 Section 6. SPONSORSHIP FUNDING AND MARKETING PROGRAM
11 The COMPANY shall provide cash sponsorship to the CITY in the amount of$15,000
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to be paid in annual installments of$3,000 over the term of this Agreement, starting on June
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14 30, 2012 and continuing until expiration of this Agreement.
15 The COMPANY shall provide cash contribution of $2,500 for marketing/
16 merchandising support in annual installments of$500 over the term of this agreement, starting
17 on June 30, 2012 and continuing until expiration of this Agreement. These funds are to be
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used as mutually agreed upon by both parties to promote and merchandise the COMPANY'S
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20 beverage products.
21 The COMPANY shall provide, upon request, up to 100 free cases of 12 oz. cans of
22 Coca-Cola beverage on an annual basis to the CITY during the term of this Agreement,
23 starting on July 1, 2012.
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The COMPANY shall provide one recycling barrel for every pair of vending machines
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26 placed.
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Exhibit "A"
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1 Section 7. COMMISSION
2 In consideration of the rights and privileges provided to the COMPANY under this
3 Agreement, the COMPANY agrees to pay the CITY a set commission of 30% on gross sales
4 at all COMPANY vending machines at CITY-owned facilities. Commissions to the CITY
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will be paid on a quarterly basis during the term of this Agreement. Each commission
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7 payment shall be made to the CITY on or before the 10th day of each month following the end
8 of each quarter for the term of this Agreement.
9 Total commission to the CITY is set at 30% of actual sales. COMPANY estimates
10 that CITY'S commission will be a total of $178,200 over the term of this agreement, as set
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forth in the formula provided in Attachment 2, which is incorporated herein in its entirety by
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reference. CRV and sales tax will be at the COMPANY cost without reducing the
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14 commission due to the CITY.
15 The commissions specified in this Section shall be paid by COMPANY to the City
16 Treasurer at 300 North "D" Street, San Bernardino, CA 92418-001 or at such other place or
17 places as the CITY may from time to time designate by written notice delivered to
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COMPANY.
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20 Section 8. POINT OF SALE REPORTS
21 The COMPANY shall provide quarterly written reports showing an itemized listing of
22 beverages sold at the various points of sale at CITY-owned facilities as well as an itemized
23 listing of cases sold at each point of sale. This report shall accompany the quarterly
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commission payment to the CITY. The COMPANY shall submit to the CITY at the place
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26 where payments are to be made under this Agreement, a written statement, on a form
27 approved by the CITY and subscribed and certified to by the COMPANY, showing an
28 Exhibit "A"
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2013-29
1 itemization of gross beverage and vending sales for the preceding calendar month, together
2 with a certified statement as to all items of inventory. The COMPANY agrees to permit the
3 CITY and its agents and representatives at reasonable intervals at any and all times upon
4 reasonable advance notice during the COMPANY'S usual business hours, to inspect all
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books, records and accounts for the gross sales and inventories provided to CITY locations.
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7 Section 9. MAINTENANCE OF VENDING MACHINES AND OTHER
EQUIPMENT
8 COMPANY agrees to maintain its vending machines, signs and other equipment
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installed and/or operated pursuant to this Agreement in good order and repair at
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11 COMPANY'S own cost and expense during the entire term of this Agreement. COMPANY
12 shall perform at its own cost and expense (within 48 hour response time) any required
13 maintenance and repairs, and should COMPANY fail, neglect or refuse to do so, CITY shall
14 have the right to perform such maintenance or repairs for COMPANY, and COMPANY
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agrees to promptly reimburse CITY for the cost thereof, provided, however, that CITY shall
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17 first give COMPANY seven (7) days written notice of its intention to perform such
18 maintenance or repairs for COMPANY for the purpose of enabling COMPANY to proceed
19 with such maintenance or repairs at its own expense. CITY shall not be obligated to make
20 any repairs to, nor maintain, any vending machines, signs or other equipment installed and/or
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operated by COMPANY pursuant to this Agreement. CITY will assist the COMPANY in
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expediting the required permit and inspection process that may be necessary for installation of
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24 the vending machines. COMPANY agrees that vending machines shall be specially designed
25 for outdoor service, and are vandal resistant. COMPANY agrees to re-stock vending
26 machines as often as needed and adjust route service as necessary during peak business
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periods. COMPANY agrees to remove any g y graffiti on vending machines on a weekly basis.
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Exhibit"A"
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2013-29
1 CITY shall be responsible for any damage to machines directly caused by its employees or
2 contractors.
3 Section 10. INSURANCE
4 While not restricting nor limiting the foregoing, during the term of this Agreement,
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COMPANY shall maintain in effect policies of comprehensive public, general and automobile
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7 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
8 Worker's Compensation coverage, and shall file copies of said policies with the CITY'S
9 Human Resources Department prior to undertaking any work under this Agreement. CITY
10 shall be set forth as an additional named insured in each policy of insurance provided
11 hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to
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notify CITY ten days (10) prior to any change or termination of the policy.
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14 Section 11. INDEMNITY
15 COMPANY shall indemnify, defend and hold harmless the CITY, its officers,
16 employees and agents from any claims, demands, lawsuits, liabilities,judgments, or expenses
17 (including, without limitation, reasonable costs of defense and reasonable attorney's fees),
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damage to property, or injuries to or death of any person or persons, or damages of any nature,
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20 including, but not limited to, all civil claims or worker's compensation claims, arising out of
21 or related to the negligence, recklessness, or willful misconduct of COMPANY, its
22 employees, agents, or contractors in the performance of this Agreement, except that such duty
23 to indemnify, defend and hold harmless shall not apply where injury to person or property is
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caused by CITY'S negligence, recklessness, or willful misconduct.
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26 M
27 M
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Exhibit"A"
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2013-29
1 Section 12. NO EMPLOYMENT
2 COMPANY shall perform work tasks provided by this Agreement; but for all intents
3 and purposes, COMPANY shall be an independent contractor and not an agent or employee of
4 the CITY. COMPANY shall not receive any salary, bonuses, or employment benefits from
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the CITY.
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Section 13. TERMINATION PROVISIONS
8 A. The term of the Agreement shall be for five (5) years, from the date above.
9 B. At any time after ninety (90) days following the execution of this Agreement, this
10 Agreement may be terminated for any reason upon ninety (90) days written notice
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by either the CITY or COMPANY.
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C. In the event COMPANY or any representative or employee of the COMPANY
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14 breaches this Agreement, CITY shall have the right to terminate this Agreement
15 immediately upon written notice to the COMPANY. CITY shall have no
16 obligation to pay any costs to COMPANY (i.e. removal of equipment).
17 Termination of this Agreement by CITY shall not limit any other rights or
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remedies which CITY may have under this Agreement, at law or in equity.
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20 Section 14. REMOVAL OF VENDING MACHINES AND OTHER
EQUIPMENT AND LOSS OF RIGHTS AFTER
21 TERMINATION
22 Within ninety (90) days after this Agreement is terminated for any reason,
23 COMPANY shall remove at its expense, all vending machines, and other equipment and signs
24 that COMPANY installed and/or operated pursuant to this Agreement, if CITY so desires,
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except as expressly excepted by CITY in writing. If COMPANY fails to remove the above
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27 vending machines, signs, and equipment within this ninety (90) day period, the CITY may:
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Exhibit "A"
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2013-29
1 a. Continue this Agreement in effect, in which event CITY shall be entitled to
2 enforce all of its rights and remedies under this Agreement, including the right
3 to recover from COMPANY any commissions and sponsorships and other
4 payments and fees specified in this Agreement; or
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b. Remove the above vending machines, signs and equipment at COMPANY'S
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7 sole cost and expense and recover any amount necessary to compensate CITY
8 for all costs proximately caused by COMPANY'S failure to perform its
9 obligations under this Agreement.
10 In addition, all rights granted to COMPANY under this Agreement including, but
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not limited to, Territory Exclusivity and Category Exclusivity, shall cease upon the
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termination of this Agreement. COMPANY agrees that immediately after termination of this
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14 Agreement, CITY shall have the right, and COMPANY waives any claims against CITY to
15 enter into another similar type contract with a competitor of COMPANY.
16 Section 15. ENTIRE AGREEMENT/AMENDMENT
17 This Agreement comprises the entire agreement of and between the parties with
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respect to the subject matter hereof. This Agreement may be amended or supplemented only
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20 by written agreement of CITY and COMPANY.
21 Section 16. WAIVER OF BREACH
22 Any breach or failure of COMPANY or CITY to comply with any provision of
23 this Agreement may be expressly waived in writing, but such waiver shall not be construed as
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a waiver of or an estoppel with respect to any subsequent breach or failure to comply with any
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26 other provision of the Agreement.
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Exhibit "A"
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2013-29
1 Section 17. ASSIGNMENT: SUCCESSORS AND ASSIGNS
2 COMPANY shall have no right to assign, sell, transfer or delegate, whether
3 involuntary or by operation of law, any right or obligation under this Agreement without the
4 prior written consent of CITY. Any purported assignment, transfer or delegation in violation
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of this section shall be null and void. Subject to the foregoing limits on assignment and
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7 delegation, this Agreement shall be binding and shall inure to the benefit of the parties and
8 their respective successors and assigns.
9 Section 18. CONTROLLING LAW
10 The validity, interpretation, and performance of this Agreement shall be controlled
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by and construed under the laws of the State of California.
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Section 19. NOTICES
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14 Any notices to be given pursuant to this Agreement shall be deposited with the
15 United States Postal Service, postage prepaid and addressed as follows:
16 TO THE CITY: City Manager
17 Office of City Manager
300 North "D" Street, 6th Floor
18 San Bernardino, CA 92418
Facsimile: (909) 384-5138
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20 TO THE COMPANY: Coca-Cola Bottling Company
10670 Sixth Street
21 Rancho Cucamonga, CA 91730
Facsimile: (909) 476-1628
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23 Notice may also be given by facsimile ("fax") during regular business hours to the
24 numbers listed above, and such notice shall be deemed given upon receipt as reflected in a
25 transmission verification. Nothing in this paragraph shall be construed to prevent the giving
26 of notice by personal service.
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Exhibit "A"
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• 2013-29
1 IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
2 executed by and through their respective authorized officers, as of the date first above written.
3 BCI Coca-Cola Bottling Company of Los Angeles
4 dba the Coca-Cola Bottling Company of Southern California
5 By:
6 Name/Title:
7
8 City of San Bernardino
9 By:
Andrea Travis-Miller, Acting City Manager
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11 ATTEST:
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13 Georgeann Hanna, City Clerk
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15 Approved as to form:
James F. Penman, City Attorney
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17 By: -' � - �--�
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Exhibit "A"
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2013-29
ATTACHMENT 1
APPROVED LOCATIONS
Location Address
Metrolink Station 1204 W 3rd Street
Police Station 710 N D Street
Norton Gym 1554 E Art Townsend
City Hall 300 N D Street
Garage Yard Waiting 182 S Sierra Way
Feldehym Library 555 W 6th Street
Animal Control Lobby 333 Chandler Place
CID Lobby 8088 Palm Lane
Hernandez Center 222 N Lugo Avenue
Delmann Heights 2969 Flores Street
Lytle Creek Center 380 S K Street
City Yard 234 S Mt View Avenue
Galaxy Center 1494 E Art Townsend
Jerry Lewis Pool 900 E Highland Avenue
5th Street Senior Center 600 W 5th Street
Ruben Campos Center 1717 W 5th Street
City Hall Parking Structure 300 N D Street
Nicholson Center 2750 W 2nd Street
Main Snack North Side 2500 E Pacific Street
2013-29
ATTACHMENT 2
ESTIMATED COMMISSION
CITY OF SAN BERNARDINO
• Vendor Rate $1.50 x 24 units in a case = $36.00/case
• City Commission= 30% on gross sales/case
• Vendor Pays City's Commission: $36.00 x 30%= $10.80/case
• Historical Sale 2011: 3,300 cases
• 3,300 cases projected to be sold x $10.80 Commission= $35,640.00 Annual Commission
to City
• $35,640 over 5 years = $178,200 projected commission