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HomeMy WebLinkAbout114170 COCA-COLA BOTTLING CO GREELEY - CONTRACT - BID - 5753 SOFT DRINK CONCESSION EPIC ANNUALEd nnetta Fort Collins BMA -Services Agreement_1doc.doc Page 1 _ __——J SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Coca-Cola North America Foodservice and Hospitality, an operating unit of The Coca-Cola Company, hereinafter referred to as "Service Provider." WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of one (1) page, and incorporated herein by this reference. 2. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated immediately following execution of this Agreement. Time is of the essence. Any extensions of the time limit set forth above must be agreed upon in a writing signed by the parties. 3. Contract Period. This Agreement shall commence upon the date of execution shown on the signature page of this Agreement and shall continue in full force and effect for five (5) years, unless sooner terminated as herein provided (see Non -appropriation of Funds clause, below). Pricing changes shall be negotiated by and agreed to annually by both parties and may not exceed the Denver -Boulder CPI-U as published by the Colorado State Planning and Budget Office. 4. Non -appropriation of Funds. The City reasonably believes that it will have a need for the services for the duration of this Agreement and that funds will be available and appropriate to make all payments under this Agreement; however, the availability of funds in future fiscal years is dependent upon appropriation of funds by the City Council, which appropriation is entirely discretionary. The City will seek funding each year as part of its budget process. If funds to continue the purchase of the services for the portion of this Agreement term falling in the next year are not legally available for such purpose, the City may terminate this Agreement at the end of the current year without penalty. The City will notify Service Provider SA 05/01/03 Bid N5753 Fountain Agreement Ed Bonnette - Epic Term Sheet.doc Page 3 If this Agreement is terminated before its expiration date, Customer must return any dispensing equipment owned by CCF and, unless the Agreement is terminated by CCF without cause, Customer will pay the following damages at the time of tenmination: The unamortized portion of the cost of installation, and the entire cost of refurbishing and removal of all equipment owned by CCF. Interest on the damages due to CCF at the rate of one percent per month, accrued from the date the unearned funds were paid or costs were incurred. This list of damages is not intended to restrict the right of either party to pursue other remedies or damages if the other party breaches the terms of the Agreement. DISPUTE RESOLUTION Should there be a dispute between CCF and Customer relating in any way to the Agreement or the breach of the Agreement, the parties agree that they will make a good faith effort to settle the dispute in an amicable manner. If the parties are unable to settle the dispute through direct discussions, they will attempt to settle the dispute by mediation administered by the American Arbitration Association (the "AAA"), and if that procedure is unsuccessful, the dispute will be resolved by binding arbitration administered by AAA in accordance with its Commercial Arbitration Rules. A judgment on the award of the arbitrator(s) may be entered in any court with jurisdiction. ACQUISITION AND ASSIGNMENT If there is a transfer of a substantial number of the Covered Outlets, and CCF does not elect to terminate the Agreement under the "Termination" section above, Customer shall cause the acquiring, surviving or newly created business to assume all of Customer's obligations under this Agreement with regard to the acquired business. This Agreement shall not be otherwise assignable without the express written consent of CCF. TRADEMARKS Neither Customer nor CCF shall make use of any of the other party's trademarks or logos without the prior written consent of that party, and all use of the other party's trademarks shall inure to the benefit of that party. OFFSET If Customer defaults on any financial obligation to CCF, CCF may offset the amount of the default against funding that Ali Buffet Term Sheet. doc Ed Bonnette - Epic Term Sheet.doc Page 4 would otherwise be payable under this Agreement. CONFIDENTIALITY Neither party shall disclose to any third party without the prior written consent of the other party, any information concerning the programs described in this Agreement, unless disclosure is required by law. When signed by both parties, this Agreement will supersede all prior agreements between the parties relating to the subject matter of this Agreement. Agreed to this CU day of �2002 COCA -COLA NORTH AMERICA FOODSERVICE By: Gene Farrell Title: VP Area Sales Coca-Cola North America Foodservice Agreed to this S2 day ofn t, 203 The City of Fort Collins, Colorado By: Ti .D�2�cc�•� v � �- Pv2 s� �4 T' Skrt��+4c�F Ali Buffet Term Sheet. d.c CEd Bonnette -Epic Term Sheet.doc Page 5 J on the the re lease EXHIBIT "A" COCA -COLA FOUNTAIN EQUIPMENT LEASE AGREEMENT AND i5 ieasea mr an initial Derma or one t )year, commencing on n date set forth on the reverse si a (the "Commencement Oil a year to yyear basis thereafter without further notice. This n terinated by either party on any annual anniversary of the sending the other party notice of termination not less than he end of the then -current year of the tern. If this Lease is prior to 60 months from the Commencement Date, other than ny pursuant to this section, upon termination Lessee shall he actual costs of installation and removal and the standard ch Equipment incurred by Company. Following notice of this Lease will continue in effect until the Equipment has 2. RENT FOR THE EQUIPMENT. Lessee shall pay to Company the amount set forth on the reverse side plus all applicable sales and use taxes, if any, as rent for the Equipment Rent will be due monthly. At Company's discretion, Company may utilize funds due Lessee to offset amounts due Company under this Agreement. It Lessee fails to pay, within 10 days of its due date, rent or any other amount required by this Izase to be paid to Company, Lessee shall pay to Company a late charge equal to five percent (5%) per month of such overdue payment, or such lesser amount that Compauy is entitled to receive under any applicable law. LE TO THE EQUIPMENT. Title to the Equipment is, and will at all times vested in Company. Lessee will have no right, title, or interest in or to the ant, except the right to quiet use of the Equipment in the ordinary course of its as provided in this Lease. Lessee shall execute such title documents, g statements, fixture filings, certificates and such other instruments and its as Company shall reasonably request to ensure to Company's satisfaction eclion of Company's title to the Equipment and Company's interests and under this Lease. Lessee shall not transfer, pledge, lease, sell, hypothecate, e, assign or in any other way encumber or dispose of any of the Lquipment. ties agree, and Lessee warrants, that the Equipment is, and will at all times iP01 cruiauemuy resting upon, real property or IMFKVVr,MCN IS ON ER . Lessee may perform ordinary maintenance and repairs to the as required by this Lease but shall not make any alterations, additions, or its to the Equipment without the prior written consent of Company. All to the Equipment thomah alterations. repairs_ additions nr o-nrovropentc In or any part of Company s rTht title and interest in or or in part) and this Lease, and any amounts due or to b or sucn assig qunment, Lessee stall perform all its obligations with respect to any such Eipment for the benefit of the applicable Assignee, and, if so directed, shall pay all amounts due or to become due hereunder directly to the applicable Assignee or to any other party designated by such Assignee. 4. USE OF EQUIPMENT. Lessee acknowledges that the rent set forth herein does not fully comppensate Company for its expenses concerning its research and development Notts desigtied to improve fountain equipment or in providing the Equipment to Lessee, and that Company provides the Equipment to Lessee for the vumose of dispensing Comnanv nroducis ThNretnrr I....-. .... . ),., if rh, or more no any valve is used for a non -Company beverage (including water), at a rate of than $40 per year. It' the Equipment is a pump for bag -in -box or similar a such pump may be used only to dispense Company products. If the Equipmem than a fountain beverage dispenser or a ppump, then it will be used only in a where fountain beverage products of (:ampany are served and where no beverage products of PepsiCo. Inc. or an aft fare of PepsiCo. Inc. are serve Section 4 shall not auoly within the Suite of W iseonaio 5. INSPECTION AND NOTIFICATION. Company shall have the right during Lessee's regular business hours to inspect the Equipment at Lessee's premises or wherever the Equipment may be located and to review all records that relate to the Equipment. Lessee shall promptly notify Company of all details arising out of any change in location of the Equipment, any alleged encumbrances thereon or any accident allegedly resulting from the use or operation thereof. 7. TAXES. Lessee shall pay all assessments, license fees, taxes (including sales, use excise, personal property, ad valorem, stamp, documentary and other taxes) and A other governmental charges, fees, dines or equipment whatsoever, whether payable b n y Company or Lessee, oor relating to the quipment or the use, registraion, rental, shipment, transportation, delivery, or operation thereof, and on or relating to this Lease. 8. MAINTENANCE AND REPAIRS. If Lessee elects to use one valve to dispense a non -Company beverage pursuant [o Section 4, Company may charge for its costs of szrviciig such valve m accordance with Company's hair Share Policy at a rate of not Tess than $25 per year. Lessee shall, at its ezvense, keep the Equipment in good condition, repair, and working order. Lessee shell pay all costs incurred in connection with the shipmeat, use, operation, ownership, or possession of the Equipment during the ten- of this Lease. Lessee's sole recourse against Company with respect to service provided by Company or its agents to [he Equipment is that Company will correct any defective workmanship a[ no additional charge to Lessee, provided that Company is given prompt a ifficsoon of any defective workmanship. Company shall not be otherwise liable for negligent acts or omissons wmmitted in rygar to maintenance or repair of the Equipment and assumes no responsibility for incidental, consequential or special damages occasioned by such negligent acts or omissions. 9. RISK OF LOSS. All risk of loss, including damage, theft or destination, to each item of Equipment will be home by Lessee. No such loss, damage, theft or destruction of Equipment, in whole or in part, will impair the obligations of Lessee under this Lease, all of which will continue in full force and effect. 10. INDEMNIFY. Lessee shall indemnify Company and out use, operation, control or disposition of the equipment or act or omission of Lessee, ineludin but not limited to sustained by Company arisen out of Lessee's failure to cc conditions of this Lease; (c) any claims for liability i Equipment, excepting only to the degree such claims a negligent or willful acts. The provisions of this Section 10 expiration of this Lease. 11. DEFAULT. The occurrence of any ofthe following will constitute a "Default" by Lessee: (a) nonpayment by Lessee when due of any amount due and payable under this Lease; (b failure of Lessee to comply with any provision of this Lease, and failure of Lessee to remedy, cure, or remove such failure within ten (10) days after receipt of written notice thereof from Company; (c), any statement, representation, or warrant of Lessee to Company, at any time, that is untrue as of the date made; (d) Lessee's becoming insolvent or unable to pay its debts as they mature, or Lessee making an assi6nune It for the benefit of creditors, or any proceeding, whether voluntary or involuntary, beintr instituted by or against Lessee alleging that Lessee is insolvent or unable to pay its debts as they mature; (e) appointment of a receiver liquidator online, cusrodian or other similar o6icial For any of [he E�Luipment or )'or any property m which Lessee has an interest; (t) seizure of any of [he equipment; (g) default by Lessee under the terns of any note, doeninent, aygreement or instrument evidencing an obligation of Lessee [o Company or to any at I late of Company, whether now existing or hereafter arising; (h) Lessee taking any action with respect to the liquidation. dissolution, winding up or otherwise discontinuing the conduct of its business; (i) Lusee transferring all or substantially all of its assets [o a third party; or (j) [tic than' ,conveyance, assignment or pledge of a controlling interest or ownership of Izssee to a third party without Company's poor written consent. 12. OPTION TO ACCELERATE AT WILL. Ifat any time Company in 6cod faith believes that the prospect for Lessee's payment or other performance under this Lease is impaired, Company may demand immediate payment of all rents due and scheduled to come due during the remainder of the Lease term. All future rent accelerated under this or any other provision of this Agreement will be discounted to present value, which will be computed at a discount rate of five (5) percent Failure of Lessee to make full payment within thiryy (30) days of its receipt of the demand for accelerated rent will constitute a "Default" by Lessee as defined in Section 11. 13. REMEDIES. Upon the occurrence of any Default or at any time thereafter, Company may terminate this Lease as to any or all items of Equipment. may enter Lessee's premises and retake possession of the Equipment at Lessee's expense, and will have all other remedies at law or in equity for breach of the Lease. Lessee acknowledges that in the event of a breach of Sections 4 or 5 or a failure or refusal of Lessee to relinquish possession of the Equipment in breach of this section following termination or Default Company's damages would be difficult or impossible to ascertain, and Lessee therefore agrees that Company will have the n5l t to an injunction in any court of competent jurisdiction restraining said breach and granting Company the right to immediate possession of the Equipment. 14. LIOL'IDATED DAMAGES. If Lessee acts in violation of the prohibitions described in Section 3 of this Agreement, or is unable or unwdlin, to return the Egwpmen[ m Company in good workin r order, normal usage we and tear excepted. at the expiration or termination of [he Lease, Lessee shall pay as liquidated damages the total of`. (i) the amount of past -due lease payments, discounted accelerated future lease payments, and the value of Company's residual interest in the Equipment, plus (ii) all tax indemnities associated with [he Equipment [o which Company would have been entitled if Lessee had fully performed this Lease, plus (i..) costs, Interest, and attorneys' fees f ces by Company due to Lessee's violation of Sveri al3 or its failure to return the Equipment to Company, imnus (iv) any proceeds or offset from the release orsale of the Equipment by Company. 15. OTHER TERMS. No failure by Company to exercise and no del%yin exercising any of Company's ritrhts hereunder will operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or of anyy other rights. This Lease constitutes the entire agreement of the parties and suppersedes all poor oral and written agreements between the parties t,ovemm the subject matter of this Lease; provided, however, that if Company and Lesseeave entered into a Marketing Agreement into which this Lease is incorporated to the extent that any I the taints in this Lease confiict with the terns set forth in the Marketing Af6,reemenl, the terns at [he Marketing Agreement will control. No agreement will be eti _u to amend this Lease unless such agreement is m writing and signed, byy the party to be charged thereby. An notices pcnnitted or required by this Lease will be in wnnng and marled by certifredymaiI in hand delivered, addressed to the respective addresses of [he parties on [he reverse side of this Lease. THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA. Time is of the essence to each and all of the provisions of this Lease. LE961120 015 Ed Bonnette - Fort Collins BMA -Services Agreement.ldoc.doc page 2 at least thirty (30) days prior to the end of the year if funds are not available for the payments required under this Agreement by reason of non -appropriation or non -availability of funds as set forth above. 5. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the perfonnance is actually prevented, Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 6. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to Service Provider. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: City: David Carey, C.P.M., Buyer City of Fort Collins Purchasing Division P.O. Box 580 Fort Collins, CO 80522 Service Provider: Andrea Tseng Coca-Cola Foodservice and Hospitality 2450 S. Peoria Suite 100 Aurora, CO 80014 In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of Service Provider's obligations under this Agreement. Such payment shall be Service Provider's sole right and remedy for such termination. 7. City Representative. The City designates Mike McDonnell, EPIC Facilities Administrator, its representative who shall make, within the scope of his authority, all necessary and proper decisions with reference to the services provided under this Agreement. All requests concerning this Agreement shall be directed to the City Representative. 8. Independent Service Provider. The services to be performed by Service Provider are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workers' Compensation or other taxes or benefits or for any other purpose. SA 05/01/03 Bid t15753 Fountain Agreement Ed Bonnette - Fort Collins BMA -Services Agreement. 1 doc.doc Page 3 9. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, Service Provider shall neither assign any responsibilities nor delegate any duties arising under this Agreement to any third party outside The Coca-Cola Company and its authorized bottlers and service agents without the prior written consent of the City. 10. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 11. Standard of Performance/Warranty/Disclaimer. (a) Service Provider represents that all work performed hereunder shall be performed in accordance with standards of services commonly accepted in the Beverage industry. (b) Unless otherwise provided in this Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of suitable grade of its respective kind for its intended use. (c) The City acknowledge that Service Provider is not a manufacturer of the dispensing equipment provided under this Agreement and that Service Provider has made no representations of any nature whatsoever pertaining to the dispensing equipment or its performance, whether express or implied, including (without limitation) any implied warranties of merchantability or fitness for a particular purpose, or any other warranties relating to the design, condition, quality, capacity, material or workmanship of the dispensing equipment or its performance, or any warranty against interference or infringement, or any warranty with respect to patent rights, if any, pertaining to the dispensing equipment. Service Provider shall not be responsible for any loss of profits, any direct, incidental or consequential losses, or damages of any nature whatsoever, resulting from the delivery, installation, maintenance, operations service or use of any dispensing equipment or otherwise. 12. Default. Each and every term and condition hereof shall be deemed to be a SA 05/01/03 Bid #5753 Fountain Agreement Ed Bonnette_- Fort Collins BMA -Services Agreement.1 doc.doc Page 4 material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this Agreement, such party may be declared in default thereof. 13. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of fifteen (15) days within which to cure the default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate this Agreement and seek damages; or (b) treat the Agreement as continuing and require specific performance; or (c) avail itself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non - defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. 14. BindingEffect. ffect. This writing, together with the exhibits hereto and the Beverage Marketing Agreement, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. hi the event of any conflict between the Beverage Marketing Agreement and this Agreement, the Beverage Marketing Agreement shall control. 15. Indemnity/Insurance. (a) Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees from and against any and all actions, suits claims, demands or liability brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, resulting from or occurring in connection with Service Provider's negligent performance of services hereunder. (b) The City agrees to indemnify and save harmless Service Provider, its officers, agents and employees from and against any and all actions, suits claims, demands or liability brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, resulting from or occurring in connection with the City's negligent actions or inactions. (c) Service Provider shall take all necessary and reasonable precautions in performing the work hereunder to prevent injury to persons and property. (d) Without limiting any of Service Provider's obligations hereunder, Service Provider shall provide and maintain insurance coverage naming the City as SA 05/01/03 Bid 95753 Fountain Agreement rEd Bonnette.- Fort Collins BMA -Services Agreement. 1 doc.doc Page 5 an additional insured under this Agreement of the type and with the limits specified with Exhibit `B", consisting one (1) page, attached hereto and incorporated herein by this reference. Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P.O. Box 580, Fort Collins, CO 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company reasonably acceptable to the City. 16. Entire Agreement. This Agreement, along with all Exhibits, the Beverage Marketing Agreement, and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. 17. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. CITY OF FORT COLLINS, COLORADO a municipal corporation By: J es .O'Neill II, CPPO, FNIGP D rect of Purchasing and Risk Management COCA -COLA NORTH AMERICA FOODSERVICE AND HOSPITALITY an operating unit of The Coca-Cola Company By: Dan Manning West Area Vice President SA 05/01/03 Bid R5753 Foumain Agreement Ed Bonnette•- Fort Collins BMA -Services Agreement.ldoc.doc Page 6 EXHIBIT "A" To City of Fort Collins/Coca-Cola North America Foodservice and Hospitality Service Agreement The following Product Pricing shall prevail for the first year of this Agreement, which shall commence upon the date of execution shown on the signature page of this Agreement. Pricing changes, if any, shall be negotiated by and agreed to annually by both parties and may not exceed the Denver -Boulder CPI-U as published by the Colorado State Planning and Budget Office. Quantities are 2002 estimates for pricing purposes only. The exact product mix and order quantities will be determined by EPIC and City Park personnel and Service Provider. Quantity Description Price/each Price/lot 150 bag -in- 5 gallon BIB, fountain beverage syrup $40.57 per 5 $6,085.50 box of The Coca-Cola Company gallon BIB ("BIB") 1 BIB 5 gallon BIB, Minute Maid® Pink $40.57 per 5 $40.57 Lemonade fountain beverage syrup gallon BIB 1 BIB 5 gallon BIB, Hi -CV Fruit Punch fountain $40.57 per 5 $40.57 beverage syrup gallon BIB In order to support a customized marketing program at EPIC and City Park Pool, Service Provider will offer the following funding: One -Time Payment: $1,500.00 One time payment in the first year, to be used for The Coca-Cola Company sponsorship signage. Merchandising Fund: $200 per year for 5 years = $1,000.00 This annual fund is to be allocated strictly for the use of purchasing menu boards, cups and all other merchandising items that promote Service Provider's fountain beverages. SA 05/01/03 Bid k5753 Fountain Agreement Ed Bonnette - Fort Collins BMA -Services Agreement.1doc.doc Page 7� Exhibit `B" INSURANCE REQUIREMENTS Service Provider will provide, from insurance companies reasonably acceptable to the City, the insurance coverage designated hereinafter and will pay all costs of procuring and maintaining such insurance. Before commencing work under this bid, Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been given to the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on Service Provider's general liability and automobile liability insurance policies for any claims arising out of work negligently performed by Service Provider under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. Service Provider shall maintain during the life of this Agreement for all of Service Provider's employees engaged in work performed under this Agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the negligent performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, Service Provider shall be responsible for any liability directly or indirectly arising out of the work negligently performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. SA 05/01/03 Bid #5753 Fountain Agreement Ed Bonnet,d - Epic Term Sheet.doc Page 1 Beverage Marketing Agreement The City of Fort Collins, Colorado May 1, 2003 SCOPE OF AGREEMENT The parties to this Beverage Marketing Agreement (the "Agreement") are The City of Fort Collins, Colorado ("Customer") and Coca-Cola North America Foodservice and Hospitality ("CCF"). The Agreement will apply to all outlets within the United States where Fountain Beverages are served that are owned or operated by Customer including such outlets that are opened or acquired after this Agreement is signed. If an acquired outlet is governed by an agreement with CCF, the prior agreement must be terminated before this Agreement will apply to the acquired outlet. All outlets to which this Agreement applies are referred to as "Covered Outlets." TERM The Agreement will go into effect as of the first day of the month in which it is signed by Customer and will continue for a period of five (5) years or until the Covered Outlets have purchased three -thousand nine hundred seventy-five (3,975) gallons of CCF's Fountain Syrups (the "Volume Commitment"), whichever occurs last. Projected annual volume (the "Projected Annual Volume") is currently seven hundred ninety-five (795) gallons. BEVERAGE AVAILABILITY The term "Beverage' means all soft drinks and other non-alcoholic, non-dairy beverages, including waters, sports drinks, frozen beverages, juices, juice -containing drinks, punches, ades, bar mixers and iced teas, whether carbonated or non- carbonated. "Fountain Beverages" are those Beverages that are dispensed from post -mix, pre -mix or frozen beverage dispensers, bubblers, or similar equipment. Coffee or tea that is fresh -brewed on the premises is not considered a Fountain Beverage. The term "Fountain Syrup" means the post -mix syrup used to prepare Fountain Beverages, but does not include other forms of concentrate, BreakMateCR� syrup, or syrup for frozen Beverages that is purchased from a full service supplier of frozen Beverages to which CCF provides promotional funding. Customer will serve in each Covered Outlet a core brand set of Fountain Beverages that consists of Coca-ColaR classic, diet Cokc� and Sprite®, and the remaining products will be jointly selected by Customer and CCF. All Fountain Beverages served in the Covered Outlets will be CCF's brands. Customer further recognizes that the sale of competitive Beverages in bottles, cans, or other packaging would diminish the product availability rights given to CCF, and therefore also agrees not to serve competitive Beverages in bottles, cans or other packaging in the Covered Outlets. Ed Bonnette - Epic Term Sheet.doc Page 2.1 MARKETING PROGRAM The following marketing programs will be provided to assist Customer in maximizing the sale of Fountain Beverages in the Covered Outlets: One -Time Sponsorship Allowance. A one-time payment of fifteen hundred ($1,500) dollars will be paid on the first date of the contract in sponsorship of the ice rink. Point of Sale Support Funds. Funding will be two hundred ($200) per year for the term of the agreement. The Point of Sale fund is to be used for such items as tumblers and in store merchandising materials or other mutually agreed upon items or programs. EQUIPMENT PROGRAM CCF will provide for Customer's use without charge during the Term the equipment owned by CCF that is currently installed in the Covered Outlets. The equipment provided by CCF will at all times remain the property of CCF and is subject to the terns and conditions of CCF's standard lease agreement, but no lease payment will be charged. The standard lease terns are attached as Exhibit A and are a part of this Agreement, except as specifically changed by the Agreement. SERVICE PROGRAM Customer may use CCF's Service Network without charge for up to three (3) regular mechanical repair calls for post -mix dispensing equipment annually for each Covered Outlet. These calls are calculated on a per outlet basis and may not be aggregated. Parts required for these repair calls that are valued at no more than Fifteen Dollars ($15) will also be provided without charge. Customer will be invoiced for other types of service calls or for regular mechanical repair calls in excess of those available under this program. TERMINATION Once this Agreement is signed by both parties, it may be terminated before the scheduled expiration date only in the following circumstances: (i) Either party may terminate this Agreement if the other party fails to comply with a material term or condition of the Agreement and does not remedy the failure within ninety (90) days after receiving written notice (the "Cure Period"). Termination will be effective thirty (30) days after the end of the Cure Period. (ii) Either party may tenninate this Agreement without cause after giving twelve months' prior written notice. (iii) CCF may terminate this Agreement if there is a transfer or closing of a substantial number of the Covered Outlets. (iv) CCF may terminate the Agreement if Customer fails to purchase Projected Annual Volume. All Buffet Term Sheet doc