HomeMy WebLinkAbout2013-280 1 RESOLUTION NO. 2013-280
2
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.
6
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 hereby authorizes and directs the City
10 Manager to execute a Vendor Service Agreement with BCI Coca-Cola Bottling Company of
11 Los Angeles dba the Coca-Cola Bottling Company of Southern California for the exclusive
12
beverage sales and vending rights to certain City locations, a copy of which is attached hereto
13
14 marked Exhibit A and incorporated herein.
15 SECTION 2. The authorization to execute the Agreement is rescinded if the parties to
16
the Agreement fail to execute it within sixty days of the passage of this resolution.
17
18 ///
19 //I
20
21 ///
22
///
23
24 ///
25
26 ///
27 ///
28
2013-280
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
1
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 a oint regularmeeting thereof, held
7 on the 7*h y October
day of 2013, by the following vote, to wit:
8
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ x
11 JENKINS x
12 VALDIVIA x
13 SHORETT x
14
KELLEY x
15
16 JOHNSON x
17 MCCAMMACK x
18
19 _ .� y ._... �✓
Geor_/ann Han 4r City Clerk
20 Q day of
The foregoing resolution is hereby approved this a y
21 October , 2013.
22 •�
23 II J. Morris, Mayo
City of San Bernardino
24 Approved as to form:
25 James F. Penman,
City Attorney
26 By: t
27
28
2013-280
VENDOR SERVICE AGREEMENT
1
2 THIS AGREEMENT entered into this 7th day of October 2013, by and
3 between BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES doing business as
4 the COCA-COLA BOTTLING COMPANY OF SOUTHERN CALIFORNIA, a Delaware
5
Corporation("COMPANY") and the CITY OF SAN BERNARDINO ("CITY").
6
WITNESSETH:
7
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
11 WHEREAS, COMPANY wishes to establish a new agreement with CITY to provide
12
beverage refreshments to CITY'S visitors at CITY-owned facilities and to establish a
13
14 partnership with the CITY to promote and sell COMPANY'S beverage products; and,
15 WHEREAS, CITY will receive a commission on the sale of COMPANY'S beverage
16 products as well as receive sponsorship funding, marketing assistance, and free beverage
17 products from the COMPANY.
18
NOW,THEREFORE, the parties hereto agree as follows:
19
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
24
COMPANY shall provide, install, and maintain all equipment necessary to facilitate the
25
26 continued sale of beverage products, and shall pay commissions to the CITY as set forth
27 herein.
28 Exhibit"A"
1
2013-280
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,
5
owned by the CITY and within the CITY limits, including CITY parks & recreation facilities,
6
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
11 all carbonated and non-carbonated, non-alcoholic beverages of any kind, including without
12
limitation soft drinks, juices, juice drinks, teas, isotonics, energy, water and frozen beverages
13
14 sold at 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
18
CITY during the performance and implementation of this Agreement throughout the entire
19
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
24
the delivery and service personnel assigned to the CITY and will be responsible for
25
maintaining all vending machines in an aesthetically pleasing and operable condition.
26
27
28 Exhibit"A"
2
2013-280
1 CITY hereby designates the City Manager of the City of San Bernardino, California,
2 or his/her designee, to represent it and be its sole contact and agent in all consultations with
3 the COMPANY during the performance and implementation of this Agreement throughout
4 the entire term of the Agreement.
5
Section 4. TERM
6
The term of this Agreement shall be for five (5) years unless sooner terminated as
7
8 herein provided. The term shall commence on July 1, 2013. The parties agree that any pre-
9 existing activity with regard to commissions and beverage exclusivity shall continue until
10 June 30, 2013. Any new vending machines and equipment shall be delivered, installed, and
11 operational within forty five (45) days from the execution of this Agreement.
12
Section 5. VENDING MACHINE LOCATIONS
13
14 CITY shall make its best effort to provide COMPANY with locations for its beverage
15 products. The CITY shall provide a minimum of twenty (20) vending locations throughout
16 the term of this Agreement;
17 A. Vending machine locations: COMPANY shall have access to all vending machine
18
locations designated by CITY. CITY shall pay for any electrical/utility charges
19
20 incurred for the operation of the vending machines. Vending machines shall be
21 installed by COMPANY at no cost to the CITY.
22 B. City locations: During the term of this Agreement, COMPANY shall have the
23 exclusive right to sell beverages to CITY locations excluding those locations
24
where the CITY is currently under contract with a third party for the supply of
25
beverages. No other third party agreements shall be entered into during the term of
26
27 this Agreement. Upon expiration of any such third party agreement, the CITY
28 Exhibit"A"
3
2013-280
1 shall include those locations and/or facilities as part of the locations for the
2 purposes of this Agreement.
3 C. Exclusivity exclusions: This exclusive right to sell beverages at CITY locations
4 shall not include the right to sell such beverages at events, CITY-sponsored or
5
otherwise. Notwithstanding any other provisions of this Agreement, regardless of
6
7 sponsorship, this exclusion specifically applies to the Route 66 Rendezvous.
8 Section 6. SPONSORSHIP FUNDING AND MARKETING PROGRAM
9 The COMPANY shall provide cash sponsorship to the CITY in the amount of$15,000
10 to be paid in annual installments of$3,000 each year over the term of this Agreement, starting
11 on July 01, 2013 and continuing until expiration of this Agreement.
12
The COMPANY shall provide cash contribution of $2,500 for marketing/
13
14 merchandising support in annual installments of $500 each year over the term of this
15 Agreement, starting on July 01, 2013 and continuing until expiration of this Agreement.
16 These funds are to be used as mutually agreed upon by both parties to promote and
17 merchandise the COMPANY'S beverage products, and shall be deemed earned over the term.
18
COMPANY shall make available to CITY a maximum of 100 standard physical cases
19
20 of 12 oz cans as complimentary Products, with a retail value not to exceed $1,000, each
21 Agreement Year. Such complimentary Products shall be provided to CITY upon reasonable
22 advance request. CITY must request all available complimentary Products during the course
23 of each Agreement Year. If CITY does not request all available complimentary Products by
24
the end of each Agreement Year, then any complimentary Products remaining at the end of
25
any Agreement Year shall be forfeited by CITY and retained by COMPANY with no further
26
27 obligation.
28 Exhibit"A"
4
2013-280
1 The COMPANY shall provide one recycling receptacle for every pair of vending
2 machines placed at mutually agreed upon locations.
3 Section 7. COMMISSION
4 In consideration of the rights and privileges provided to the COMPANY under this
5
Agreement, the COMPANY agrees to pay the CITY a set commission of 30%. Commissions
6
7 are paid based upon cash collected after deducting taxes, deposits, recycling fees, other
8 handling fees, communication charges and credit and debit card fees, if any. Commissions
9 shall not be payable on any sales from vending machines not filled or serviced exclusively by
10 COMPANY. COMPANY may adjust the vend prices and/or commission rates as necessary
11 to reflect changes in its costs, including cost of goods. Commissions shall be paid each
12
quarter in the month following the end of the quarter in which they are earned, with an
13
14 accounting of all sales and monies in a form reasonably satisfactory to the CITY, and shall
15 become immediate property of CITY. Any payment delay in commission payment shall not
16 be considered a breach of this Agreement.
17 COMPANY estimates that CITY'S commission shall be a total of$132,000 over the
18
term of this agreement, as described in Attachment 2, which is incorporated herein by
19
20 reference.
21 The commissions specified in this Section shall be paid by COMPANY to the City
22 Treasurer at 300 North "D" Street, San Bernardino, CA 92418-001 or at such other place or
23 places as the CITY may from time to time designate by written notice delivered to
24
COMPANY.
25
26
27
28 Exhibit"A"
5
2013-280
1 Section 8. POINT OF SALE REPORTS
2 The COMPANY shall provide quarterly written reports showing an itemized listing of
3 beverages sold at the various points of sale at CITY-owned facilities as well as an itemized
4 listing of cases sold at each point of sale. This report shall accompany the quarterly
5
commission payment to the CITY. The COMPANY shall submit to the CITY at the place
6
7 where payments are to be made under this Agreement, a written statement, on a form
8 approved by the CITY and subscribed and certified to by the COMPANY, showing an
9 itemization of gross beverage and vending sales for the preceding calendar month, together
10 with a certified statement as to all items of inventory. The COMPANY agrees to permit the
11 CITY and its agents and representatives at reasonable intervals at any and all times upon
12
reasonable advance notice during the COMPANY'S usual business hours, to inspect all
13
14 books, records and accounts for the gross sales and inventories provided to CITY locations at
15 COMPANY's facility. Any inspections will be at CITY'S expense.
16 Section 9. MAINTENANCE OF VENDING MACHINES AND OTHER
17 EQUIPMENT
18 COMPANY agrees to maintain its vending machines, signs and other equipment
19 installed and/or operated pursuant to this Agreement in good order and repair at
20 COMPANY'S own cost and expense during the entire term of this Agreement. COMPANY
21
shall perform at its own cost and expense (within 48 hour response time) any required
22
maintenance and repairs, and should COMPANY fail, neglect or refuse to do so, CITY shall
23
24 have the right to perform such maintenance or repairs. CITY shall assist the COMPANY in
25 expediting the required permit and inspection process that may be necessary for installation of
26 the vending machines. COMPANY agrees that vending machines shall be specially designed
27 for outdoor service. If necessary, COMPANY agrees to add full metal jacket and/or cage that
28 Exhibit"A"
6
2013-280
1 are vandal resistant. COMPANY agrees to re-stock vending machines as often as needed and
2 adjust route service as necessary during peak business periods. COMPANY agrees to remove
3 any graffiti on vending machines when notified by the city. CITY shall be responsible for any
4 damage to machines directly caused by its employees or contractors.
5
Section 10. INSURANCE
6
While not restricting nor limiting the foregoing, during the term of this Agreement,
7
8 COMPANY shall maintain in effect policies of commercial general liability in the amount of
9 $1,000,000 per occurrence and $1,000,000 in the aggregate; automobile liability insurance, in
10 the amount of $1,000,000.00 combined single limit, and statutory Worker's Compensation
11 coverage. CITY shall be named as an additional named insured on the commercial general
12
liability and automobile liability policy. The Certificate of Insurance furnished to the CITY
13
14 shall endeavor the insurer to notify CITY thirty days (30) prior to any change or termination
15 of the policy.
16 Section 11. INDEMNITY
17 COMPANY shall indemnify, defend and hold harmless the CITY, its officers,
18
employees and agents from any claims, demands, lawsuits, liabilities,judgments, or expenses
19
20 (including, without limitation, reasonable costs of defense and reasonable attorney's fees),
21 damage to property, or injuries to or death of any person or persons, or damages of any nature,
22 including, but not limited to, all civil claims or worker's compensation claims, arising out of
23 or related to the negligence, recklessness, or willful misconduct of COMPANY, its
24
employees, agents, or contractors in the performance of this Agreement, except that such duty
25
to indemnify, defend and hold harmless shall not apply where injury to person or property is
26
27 caused by CITY'S negligence, recklessness, or willful misconduct.
28 Exhibit"A"
7
2013-280
1 Section 12. INDEPENDENT CONTRACTOR
2 COMPANY is and shall be acting at all times as an independent contractor and not as
3 an employee of CITY. COMPANY shall secure, at its expense, and be responsible for any
4 and all payment of Income Tax, Social Security, State Disability Insurance Compensation,
5
Unemployment Compensation, and other payroll deductions for COMPANY and its officers,
6
agents, and employees, and all business licenses, if any are required, in connection with its
7
8 performance under this Agreement.
9 Section 13. TERMINATION PROVISIONS
10 A. The term of the Agreement shall be for five (5) years, beginning from the date
11 stated above.
12
B. Any time after ninety (90) days following the execution of this Agreement, this
13
14 Agreement may be terminated for any reason upon ninety (90) days written notice
15 by either the CITY or COMPANY.
16 C. In the event any representative or employee from either party or any representative
17 or employee of either party breaches this Agreement, either party shall have the
18 right to terminate this Agreement immediately upon written notice to the
19
20 COMPANY or CITY. Termination of this Agreement by CITY shall not limit any
21 other rights or remedy which either party may have under this Agreement, at law
22 or in equity.
23 Section 14. REMOVAL OF VENDING MACHINES AND OTHER
24 EQUIPMENT AND LOSS OF RIGHTS AFTER
TERMINATION
25
Within ninety (90) days after this Agreement is terminated for any reason,
26
27 COMPANY shall remove at its expense, all vending machines, and other equipment and signs
28 Exhibit"A"
8
2013-280
1 that COMPANY installed and/or operated pursuant to this Agreement, if CITY so desires,
2 except as expressly excepted by CITY in writing. If COMPANY fails to remove the above
3 vending machines, signs, and equipment within this ninety (90) day period, the CITY may:
4 a. Continue this Agreement in effect, in which event CITY shall be entitled to
5
enforce all of its rights and remedies under this Agreement, including the right
6
to recover from COMPANY any commissions and sponsorships and other
7
8 payments and fees specified in this Agreement; or
9 b. Remove the above vending machines, signs and equipment at COMPANY'S
10 sole cost and expense and recover any amount necessary to compensate CITY
11 for all costs proximately caused by COMPANY'S failure to perform its
12
obligations under this Agreement.
13
14 In addition, all rights granted to COMPANY under this Agreement including, but
15 not limited to, Territory Exclusivity and Category Exclusivity, shall cease upon the
16 termination of this Agreement. COMPANY agrees that immediately after termination of this
17 Agreement, CITY shall have the right, and COMPANY waives any claims against CITY to
18
enter into another similar type contract with a competitor of COMPANY.
19
20 Section 15. ENTIRE AGREEMENT/AMENDMENT
21 This agreement comprises the entire agreement of and between the parties with
22 respect to the subject matter hereof. This Agreement may be amended or supplemented only
23 by written agreement of CITY and COMPANY.
24
Section 16. WAIVER OF BREACH
25
Any breach or failure of COMPANY or CITY to comply with any provision of
26
27 this Agreement may be expressly waived in writing, but such waiver shall not be construed as
28 Exhibit"A"
9
2013-280
1 a waiver of or an estoppel with respect to any subsequent breach or failure to comply with any
2 other provision of the Agreement.
3 Section 17. ASSIGNMENT: SUCCESSORS AND ASSIGNS
4 COMPANY shall have no right to assign, sell, transfer or delegate, whether
5
involuntary or by operation of law, any right or obligation under this Agreement without the
6
prior written consent of CITY. Any purported assignment, transfer or delegation in violation
7
8 of this section shall be null and void. Subject to the foregoing limits on assignment and
9 delegation, this Agreement shall be binding and shall insure the benefits of the parties and
10 their respective successors and assigns.
11 Section 18. CONTROLLING LAW
12
The validity, interpretation, and performance of this Agreement shall be controlled
13
14 by and construed under the laws of the State of California.
15 Section 19. NOTICES
16 Any notices to be given pursuant to this Agreement shall be deposited with the
17 United States Postal Service, postage prepaid and addressed as follows:
18
TO THE CITY: City Manager
19 Office of City Manager
300 North"D" Street, 6th Floor
20 San Bernardino, CA 92418
21 Facsimile: (909) 384-5138
22 TO THE COMPANY: Coca-Cola Bottling Company
10607 Sixth Street
23 Rancho Cucamonga, CA 91730
24 Facsimile: (909) 476-1628
25
26
27
28 Exhibit"A"
10
2013-280
1 Notice may also be given by facsimile ("fax") during regular business hours to the
2 numbers listed above, and such notice shall be deemed given upon receipt as reflected in a
3 transmission verification. Nothing in this paragraph shall be construed to prevent the giving
4 of notice by personal service.
5
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
6
executed by and through their respective authorized officers, as of the date first above written.
7
8
9 BCI Coca-Cola Bottling Company of Los Angeles
dba the Coca-Cola Bottling Company of Southern California
10
11 By:
12 Name/Title:
13
14 City of San Bernardino
15
By:
16 Allen J. Parker, City Manager
17
18 ATTEST:
19
20 Georgeann Hanna, City Clerk
21 Approved as to form:
James F. Penman, City Attorney
22
23 By: ��
24
25
26
27
28 Exhibit"A"
11
2013-280
ATTACHMENT 1
APPROVED LOCATIONS
Location Address
Metrolink Station 1204 W 3rd Street, 3 at ticket station
Police Station 710 N D Street, 3 Coke, 1 Power Aid
Norton Gym 1554 E Art Townsend, 1 Power Aid, 1 Coke
City Hall 300 N D Street, 1 2nd Floor, 1 Basement
Garage Yard Waiting 182 S Sierra Way, 1 in break room
Feldehym Library 555 W 6th Street, zero
Animal Control Lobby 333 Chandler Place, 1 outside lobby
CID Lobby 8088 Palm Lane, 1
Hernandez Center 222 N Lugo Avenue, 1
Delmann Heights 2969 Flores Street, 1
Lytle Creek Center 380 S K Street, 1
City Yard 234 S Mt View Avenue, 1 in Quad
Galaxy Center 1494 E Art Townsend, zero
Jerry Lewis Pool 900 E Highland Avenue, 1 Power Aid, 1 Coke
5th Street Senior Center 600 W 5th Street, 1 in side lobby
Ruben Campos Center 1717 W 5th Street, 1
City Hall Parking Structure 300 N D Street, zero
Nicholson Center 2750 W 2nd Street, 1
Main Snack North Side 2500 E Pacific Street, zero
Perris Hill Senior Center 720 W 21st Street, 20 Coke, 3 Power Aid
2013-280
ATTACHMENT 2
1
2
3
4 Gross -
Brand/Category Vend Rate 0/Case Revenue Less Tax Sales Less CRV Revenue Co/Case on Estimated C ses N Commimaoond Estimated
5 Sparkling $ 1.50 24 $ 36.00 $ 2.97 $ 1.20 $ 31.83 $ 9.55 2,223 $ 21,227.43
POWERADE $ 1.75 24 $ 42.00 $ 3.47 $ 2.20 $ 36.34 $ 10.90 189 $ 2,060.19
6 vitaminwater 1$ 2.00 24 $ 48.00 $ 3.96 $ 3.20 $ 40.84 $ 12.25 3 $ 36.76
DASANI $ 1.50 24 $ 36.00 $ 2.97 $ 4.20 $ 28.83 $ 8.65 325 $ 2,810.93
7 Energy $ 2.50 24 $ 60.00 $ 4.95 $ 5.20 $ 49.85 $ 14.96 13 $ 194.42
8 Sparkling $ 0.75 24 $ 18.00 $ 1.49 $ 6.20 $ 10.32 $ 3.09 1 $ 3.09
2,754 $ 26,332.81 Annual
9 $ 131,664.06 5 year
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 Exhibit"A"
12
2013-280
VENDOR SERVICE AGREEMENT
1
2 THIS AGREEMENT entered into this 7th day of October 2013, by and
3 between BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES doing business as
4 the COCA-COLA BOTTLING COMPANY OF SOUTHERN CALIFORNIA, a Delaware
5
Corporation ("COMPANY") and the CITY OF SAN BERNARDINO ("CITY").
6
WITNESSETH:
7
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
11 WHEREAS, COMPANY wishes to establish a new agreement with CITY to provide
12
beverage refreshments to CITY'S visitors at CITY-owned facilities and to establish a
13
14 partnership with the CITY to promote and sell COMPANY'S beverage products; and,
15 WHEREAS, CITY will receive a commission on the sale of COMPANY'S beverage
16 products as well as receive sponsorship funding, marketing assistance, and free beverage
17 products from the COMPANY.
18
NOW, THEREFORE, the parties hereto agree as follows:
19
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
24
COMPANY shall provide, install, and maintain all equipment necessary to facilitate the
25
continued sale of beverage products, and shall pay commissions to the CITY as set forth
26
27 herein.
28 Exhibit "A"
1
2013-280
• 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,
5
owned by the CITY and within the CITY limits, including CITY parks & recreation facilities,
6
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
11 all carbonated and non-carbonated, non-alcoholic beverages of any kind, including without
12
limitation soft drinks, juices, juice drinks, teas, isotonics, energy, water and frozen beverages
13
14 sold at 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
18
CITY during the performance and implementation of this Agreement throughout the entire
19
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
24
the delivery and service personnel assigned to the CITY and will be responsible for
25
maintaining all vending machines in an aesthetically pleasing and operable condition.
26
27
28 Exhibit"A"
2
• 2013-280
1 CITY hereby designates the City Manager of the City of San Bernardino, California,
2 or his/her designee, to represent it and be its sole contact and agent in all consultations with
3 the COMPANY during the performance and implementation of this Agreement throughout
4 the entire term of the Agreement.
5
Section 4. TERM
6
The term of this Agreement shall be for five (5) years unless sooner terminated as
7
8 herein provided. The term shall commence on July 1, 2013. The parties agree that any pre-
9 existing activity with regard to commissions and beverage exclusivity shall continue until
10 June 30, 2013. Any new vending machines and equipment shall be delivered, installed, and
11 operational within forty five (45) days from the execution of this Agreement.
12
Section 5. VENDING MACHINE LOCATIONS
13
14 CITY shall make its best effort to provide COMPANY with locations for its beverage
15 products. The CITY shall provide a minimum of twenty (20) vending locations throughout
16 the term of this Agreement;
17 A. Vending machine locations: COMPANY shall have access to all vending machine
18
locations designated by CITY. CITY shall pay for any electrical/utility charges
19
20 incurred for the operation of the vending machines. Vending machines shall be
21 installed by COMPANY at no cost to the CITY.
22 B. City locations: During the term of this Agreement, COMPANY shall have the
23 exclusive right to sell beverages to CITY locations excluding those locations
24
where the CITY is currently under contract with a third party for the supply of
25
beverages. No other third party agreements shall be entered into during the term of
26
27 this Agreement. Upon expiration of any such third party agreement, the CITY
28 Exhibit"A"
3
• 2013-280
1 shall include those locations and/or facilities as part of the locations for the
2 purposes of this Agreement.
3 C. Exclusivity exclusions: This exclusive right to sell beverages at CITY locations
4 shall not include the right to sell such beverages at events, CITY-sponsored or
5
otherwise. Notwithstanding any other provisions of this Agreement, regardless of
6
sponsorship, this exclusion specifically applies to the Route 66 Rendezvous.
7
8 Section 6. SPONSORSHIP FUNDING AND MARKETING PROGRAM
9 The COMPANY shall provide cash sponsorship to the CITY in the amount of$15,000
10 to be paid in annual installments of$3,000 each year over the term of this Agreement, starting
11
on July 01, 2013 and continuing until expiration of this Agreement.
12
The COMPANY shall provide cash contribution of $2,500 for marketing/
13
14 merchandising support in annual installments of $500 each year over the term of this
15 Agreement, starting on July 01, 2013 and continuing until expiration of this Agreement.
16 These funds are to be used as mutually agreed upon by both parties to promote and
17 merchandise the COMPANY'S beverage products, and shall be deemed earned over the term.
18
COMPANY shall make available to CITY a maximum of 100 standard physical cases
19
20 of 12 oz cans as complimentary Products, with a retail value not to exceed $1,000, each
21 Agreement Year. Such complimentary Products shall be provided to CITY upon reasonable
22 advance request. CITY must request all available complimentary Products during the course
23 of each Agreement Year. If CITY does not request all available complimentary Products by
24
the end of each Agreement Year, then any complimentary Products remaining at the end of
25
any Agreement Year shall be forfeited by CITY and retained by COMPANY with no further
26
27 obligation.
28 Exhibit"A"
4
2013-280
• 1 The COMPANY shall provide one recycling receptacle for every pair of vending
2 machines placed at mutually agreed upon locations.
3 Section 7. COMMISSION
4 In consideration of the rights and privileges provided to the COMPANY under this
5
Agreement, the COMPANY agrees to pay the CITY a set commission of 30%. Commissions
6
are paid based upon cash collected after deducting taxes, deposits, recycling fees, other
7
8 handling fees, communication charges and credit and debit card fees, if any. Commissions
9 shall not be payable on any sales from vending machines not filled or serviced exclusively by
10 COMPANY. COMPANY may adjust the vend prices and/or commission rates as necessary
11 to reflect changes in its costs, including cost of goods. Commissions shall be paid each
12
quarter in the month following the end of the quarter in which they are earned, with an
13
14 accounting of all sales and monies in a form reasonably satisfactory to the CITY, and shall
15 become immediate property of CITY. Any payment delay in commission payment shall not
16 be considered a breach of this Agreement.
17 COMPANY estimates that CITY'S commission shall be a total of$132,000 over the
18
term of this agreement, as described in Attachment 2, which is incorporated herein by
19
20 reference.
21 The commissions specified in this Section shall be paid by COMPANY to the City
22 Treasurer at 300 North "D" Street, San Bernardino, CA 92418-001 or at such other place or
23 places as the CITY may from time to time designate by written notice delivered to
24
COMPANY.
25
26
27
28 Exhibit"A"
5
• 2013-280
1 Section 8. POINT OF SALE REPORTS
2 The COMPANY shall provide quarterly written reports showing an itemized listing of
3 beverages sold at the various points of sale at CITY-owned facilities as well as an itemized
4 listing of cases sold at each point of sale. This report shall accompany the quarterly
5
commission payment to the CITY. The COMPANY shall submit to the CITY at the place
6 where payments are to be made under this Agreement, a written statement, on a form
7
8 approved by the CITY and subscribed and certified to by the COMPANY, showing an
9 itemization of gross beverage and vending sales for the preceding calendar month, together
10 with a certified statement as to all items of inventory. The COMPANY agrees to permit the
11 CITY and its agents and representatives at reasonable intervals at any and all times upon
12
reasonable advance notice during the COMPANY'S usual business hours, to inspect all
13
14 books, records and accounts for the gross sales and inventories provided to CITY locations at
15 COMPANY's facility. Any inspections will be at CITY'S expense.
16 Section 9. MAINTENANCE OF VENDING MACHINES AND OTHER
17 EQUIPMENT
18 COMPANY agrees to maintain its vending machines, signs and other equipment
19 installed and/or operated pursuant to this Agreement in good order and repair at
20 COMPANY'S own cost and expense during the entire term of this Agreement. COMPANY
21
shall perform at its own cost and expense (within 48 hour response time) any required
22
maintenance and repairs, and should COMPANY fail, neglect or refuse to do so, CITY shall
23
24 have the right to perform such maintenance or repairs. CITY shall assist the COMPANY in
25 expediting the required permit and inspection process that may be necessary for installation of
26 the vending machines. COMPANY agrees that vending machines shall be specially designed
27 for outdoor service. If necessary, COMPANY agrees to add full metal jacket and/or cage that
28 Exhibit"A"
6
2013-280
1 are vandal resistant. COMPANY agrees to re-stock vending machines as often as needed and
2 adjust route service as necessary during peak business periods. COMPANY agrees to remove
3 any graffiti on vending machines when notified by the city. CITY shall be responsible for any
4 damage to machines directly caused by its employees or contractors.
5
Section 10. INSURANCE
6
While not restricting nor limiting the foregoing, during the term of this Agreement,
7
8 COMPANY shall maintain in effect policies of commercial general liability in the amount of
9 $1,000,000 per occurrence and $1,000,000 in the aggregate; automobile liability insurance, in
10 the amount of $1,000,000.00 combined single limit, and statutory Worker's Compensation
11 coverage. CITY shall be named as an additional named insured on the commercial general
12
liability and automobile liability policy. The Certificate of Insurance furnished to the CITY
13
14 shall endeavor the insurer to notify CITY thirty days (30) prior to any change or termination
15 of the policy.
16 Section 11. INDEMNITY
17 COMPANY shall indemnify, defend and hold harmless the CITY, its officers,
18
employees and agents from any claims, demands, lawsuits, liabilities,judgments, or expenses
19
20 (including, without limitation, reasonable costs of defense and reasonable attorney's fees),
21 damage to property, or injuries to or death of any person or persons, or damages of any nature,
22 including, but not limited to, all civil claims or worker's compensation claims, arising out of
23 or related to the negligence, recklessness, or willful misconduct of COMPANY, its
24
employees, agents, or contractors in the performance of this Agreement, except that such duty
25
to indemnify, defend and hold harmless shall not apply where injury to person or property is
26
27 caused by CITY'S negligence, recklessness, or willful misconduct.
28 Exhibit"A"
7
2013-280
1 Section 12. INDEPENDENT CONTRACTOR
2 COMPANY is and shall be acting at all times as an independent contractor and not as
3 an employee of CITY. COMPANY shall secure, at its expense, and be responsible for any
4 and all payment of Income Tax, Social Security, State Disability Insurance Compensation,
5
Unemployment Compensation, and other payroll deductions for COMPANY and its officers,
6
7 agents, and employees, and all business licenses, if any are required, in connection with its
8 performance under this Agreement.
9 Section 13. TERMINATION PROVISIONS
10 A. The term of the Agreement shall be for five (5) years, beginning from the date
11 stated above.
12
B. Any time after ninety (90) days following the execution of this Agreement, this
13
14 Agreement may be terminated for any reason upon ninety (90) days written notice
15 by either the CITY or COMPANY.
16 C. In the event any representative or employee from either party or any representative
17 or employee of either party breaches this Agreement, either party shall have the
18 right to terminate this Agreement immediately upon written notice to the
19
20 COMPANY or CITY. Termination of this Agreement by CITY shall not limit any
21 other rights or remedy which either party may have under this Agreement, at law
22 or in equity.
23 Section 14. REMOVAL OF VENDING MACHINES AND OTHER
24 EQUIPMENT AND LOSS OF RIGHTS AFTER
TERMINATION
25
Within ninety (90) days after this Agreement is terminated for any reason,
26
27 COMPANY shall remove at its expense, all vending machines, and other equipment and signs
28 Exhibit"A"
8
2013-280
1 that COMPANY installed and/or operated pursuant to this Agreement, if CITY so desires,
2 except as expressly excepted by CITY in writing. If COMPANY fails to remove the above
3 vending machines, signs, and equipment within this ninety (90) day period, the CITY may:
4 a. Continue this Agreement in effect, in which event CITY shall be entitled to
5
enforce all of its rights and remedies under this Agreement, including the right
6
to recover from COMPANY any commissions and sponsorships and other
7
8 payments and fees specified in this Agreement; or
9 b. Remove the above vending machines, signs and equipment at COMPANY'S
10 sole cost and expense and recover any amount necessary to compensate CITY
11 for all costs proximately caused by COMPANY'S failure to perform its
12
obligations under this Agreement.
13
14 In addition, all rights granted to COMPANY under this Agreement including, but
15 not limited to, Territory Exclusivity and Category Exclusivity, shall cease upon the
16 termination of this Agreement. COMPANY agrees that immediately after termination of this
17 Agreement, CITY shall have the right, and COMPANY waives any claims against CITY to
18
enter into another similar type contract with a competitor of COMPANY.
19
20 Section 15. ENTIRE AGREEMENT/AMENDMENT
21 This agreement comprises the entire agreement of and between the parties with
22 respect to the subject matter hereof. This Agreement may be amended or supplemented only
23 by written agreement of CITY and COMPANY.
24
Section 16. WAIVER OF BREACH
25
Any breach or failure of COMPANY or CITY to comply with any provision of
26
27 this Agreement may be expressly waived in writing, but such waiver shall not be construed as
28 Exhibit"A"
9
2013-280
1 a waiver of or an estoppel with respect to any subsequent breach or failure to comply with any
2 other provision of the Agreement.
3 Section 17. ASSIGNMENT: SUCCESSORS AND ASSIGNS
4 COMPANY shall have no right to assign, sell, transfer or delegate, whether
5
involuntary or by operation of law, any right or obligation under this Agreement without the
6
prior written consent of CITY. Any purported assignment, transfer or delegation in violation
7
8 of this section shall be null and void. Subject to the foregoing limits on assignment and
9 delegation, this Agreement shall be binding and shall insure the benefits of the parties and
10 their respective successors and assigns.
11 Section 18. CONTROLLING LAW
12
The validity, interpretation, and performance of this Agreement shall be controlled
13
14 by and construed under the laws of the State of California.
15 Section 19. NOTICES
16 Any notices to be given pursuant to this Agreement shall be deposited with the
17 United States Postal Service, postage prepaid and addressed as follows:
18
TO THE CITY: City Manager
19 Office of City Manager
300 North"D" Street, 6th Floor
20 San Bernardino, CA 92418
21 Facsimile: (909) 3 84-513 8
22 TO THE COMPANY: Coca-Cola Bottling Company
10607 Sixth Street
23 Rancho Cucamonga, CA 91730
24 Facsimile: (909) 476-1628
25
26
27
28 Exhibit"A"
10
2013-280
• 1 Notice may also be given by facsimile ("fax") during regular business hours to the
2 numbers listed above, and such notice shall be deemed given upon receipt as reflected in a
3 transmission verification. Nothing in this paragraph shall be construed to prevent the giving
4 of notice by personal service.
5
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
6
7 executed by and through their respective authorized officers, as of the date first above written.
8
9 BCI Coca-Cola Bottling Company of Los Angeles
dba the Coca-Cola Bottling Company of Southern California
10
11
By: G'
12 Name/Title: j�,,a� C Cor i t(I O i r PC-10c
13
14 City of San Berna ino
15
By:
16 Allen . Parker, City Manager
17
18 ATTEST:
4-de el-44.4
20 Georgea # anna, City Clerk
21 Approved as to form:
James F. Penman, City Attorney
22
23 By' `
24
25
26
27
28 Exhibit"A"
11
2013-280
ATTACHMENT 1
APPROVED LOCATIONS
Location Address
Metrolink Station 1204 W 3rd Street, 3 at ticket station
Police Station 710 N D Street, 3 Coke, 1 Power Aid
Norton Gym 1554 E Art Townsend, 1 Power Aid, 1 Coke
City Hall 300 N D Street, 1 2nd Floor, 1 Basement
Garage Yard Waiting 182 S Sierra Way, 1 in break room
Feldehym Library 555 W 6th Street, zero
Animal Control Lobby 333 Chandler Place, 1 outside lobby
CID Lobby 8088 Palm Lane, 1
Hernandez Center 222 N Lugo Avenue, 1
Delmann Heights 2969 Flores Street, 1
Lytle Creek Center 380 S K Street, 1
City Yard 234 S Mt View Avenue, 1 in Quad
Galaxy Center 1494 E Art Townsend, zero
Jerry Lewis Pool 900 E Highland Avenue, 1 Power Aid, 1 Coke
5th Street Senior Center 600 W 5th Street, 1 in side lobby
Ruben Campos Center 1717 W 5th Street, 1
City Hall Parking Structure 300 N D Street, zero
Nicholson Center 2750 W 2nd Street, 1
Main Snack North Side 2500 E Pacific Street, zero
Perris Hill Senior Center 720 W 21st Street, 20 Coke, 3 Power Aid
2013-280
• ATTACHMENT 2
1
2
3
4 Gross Less Sales Net Commission Estimated Net Estimated
Brand/Category Vend Rate 0/Case Revenue Tax Less CRV Revenue /Case Cases Commission Estimated
5 Sparkling $ 1.50 24 $ 36.00 $ 2.97 $ 1.20 $ 31.83 $ 9.55 2,223 $ 21,227.43
POWERADE $ 1.75 24 $ 42.00 $ 3.47 $ 2.20 $ 36.34 $ 10.90 189 $ 2,060.19
6 vitaminwater $ 2.00 24 $ 48.00 $ 3.96 $ 3.20 $ 40.84 $ 12.25 3 $ 36.76
DASANI $ 1.50 24 $ 36.00 $ 2.97 $ 4.20 $ 28.83 $ 8.65 325 $ 2,810.93
7 Energy $ 2.50 24 $ 60.00 $ 4.95 $ 5.20 $ 49.85 $ 14.96 13 $ 194.42
8 Sparkling $ 0.75 24 $ 18.00 $ 1.49 $ 6.20 $ 10.32 $ 3.09 1 $ 3.09
2,754 $ 26,332.81 Annual
9 $ 131,664.06 5 year
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 Exhibit"A"
12