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CCR2005069. . . AMENDED COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #069-2005 APPROVAL OF BEVERAGE AGREEMENT BETWEEN PEPSIAMERICAS, INC. AND THE CITY OF MUSKEGO BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Parks and Recreation Board and the Finance Committee, does hereby approve the attached Agreement between PepsiAmericas, Inc. and the City of Muskego. BE IT FURTHER RESOLVED That the Mayor is authorized to sign the Agreement in the name of the City upon his review and approval of the final document. DATED THIS 12th DAY OF APRIL ,2005. SPONSORED BY FINANCE COMMITTEE Ald. Nancy Salentine Ald. Eric Schroeder Ald. Eileen Madden This is to certify that this is a true and accurate copy of Resolution #069-2005 which was adopted by the Common Council of the City of Muskego. 4/05 jmb . BEVERAGE AGREEMENT This Beverage Agreement (the "Agreement") is made on April 1, 2005 by and between PepsiAmericas, Inc. ("PAS") and City of Muskego, W182 S8200 Racine Avenue, Muskego, Wisconsin, 53150 (the "CUSTOMER"). The customer has independently selected PAS as a beverage supplier pursuant to the terms of this agreement. . WHEREAS, CUSTOMER and PAS each desire that PAS, through its Brands (as hereinafter defined), serve as the sole, exclusive and official Beverage (as hereinafter defined) supplier, distributor and advertiser of CUSTOMER at each and every location owned, operated, controlled or utilized by it including, but not limited to, each and every location, fountain location, special events area, concession vending area and any and all other areas and locations that become operational during the term of this Agreement (the "Facilities"). NOW THEREFORE, in consideration of the mutual covenants PAS and CUSTOMER hereby agree as follows: 1. Beverages shall be defined as any and all non-alcoholic drinks except hot brewed coffee, hot brewed tea and milk. 2. Brands shall mean any and all Beverages sold and distributed by PAS and any and all Beverages PAS may sell or distribute in the future including, but not limited to, carbonated soft drinks, non-carbonated soft drinks, juices, juice containing beverages, teas, sports or isotonic drinks, bottled waters and bottled coffees. 3. Subject to the renewal provisions set forth herein below, the term of this Agreement shall commence on April 1, 2005 and terminate on March 31, 2012. 4. The parties agree as follows: b. PAS shall pay CUSTOMER an annual payment of $5000.00 within 30 days of full execution of this Agreement. Annual payments to be paid within 30 days of anniversary date of contract agreement. PAS will provide annually the CUSTOMER 20 cases of CSD can product and 10 cases of bottled water. PAS will provide annually the $200.00 in promotional and merchandising material to be used as mutually agreed upon by PAS and the customer. a. c. . . d. All vending to be Full Service 20 ounce with a minimum of $1.00 vend rate, PAS and the CUSTOMER to mutually agree upon locations of vending machines, minimum of 5 placements. PAS shall pay the CUSTOMER a one time electric hook-up of $100.00 for each vendor needing an electrical outlet. e. 5. CUSTOMER hereby licenses and appoints PAS, through its Brands, as the sole, exclusive and official Beverage supplier, distributor and advertiser of CUSTOMER and the Facilities. CUSTOMER shall cause the Brands to be exclusively available at the Facilities and no Beverages or Beverage related items including, but not limited to, cups or premium items, that compete with or are the same as or similar to the Brands shall be made available, advertised and/or promoted at the Facilities or by CUSTOMER. . 6. CUSTOMER recognizes that PAS has paid valuable consideration to ensure an exclusive Beverage associational relationship with CUSTOMER with respect to an exclusive Beverage supply and distribution program and that any dilution or diminution of such exclusivity seriously impairs PAS's valuable rights. Accordingly, in the event another person or entity attempts, without PAS's explicit consent, to associate Beverages that compete with or are the same as or similar to the Brands ("Competitive Products") with CUSTOMER or to suggest that Competitive Products are endorsed by or associated with CUSTOMER by referring directly or indirectly to CUSTOMER (all of which actions described herein are sometimes referred to as "Ambush Marketing"), CUSTOMER will promptly oppose such actions and take any and all steps necessary including, but not limited to written complaints to the violating party and local media outlets; private and public cease and desist announcements; and the filing of appropriate legal actions including actions for temporary and permanent injunctive relief, to stop the Ambush Marketing and to protect the exclusive associational rights granted to PCGB in this Agreement. In the event any such Ambush Marketing occurs during the term of this Agreement or any renewal thereof, immediately upon learning thereof, each party shall notify the other party hereto. Purchasing agreements shall be made available between PAS and the third party concessions who have a working relationship with City of Muskego, ie: Waterbugs Ski Team, Muskego Athletic Association and Land of Lakes Baseball. 7. CUSTOMER grants to PAS the right of first refusal to serve as the sole, exclusive and official Beverage sponsor, supplier, distributor, advertiser and promoter to CUSTOMER and the Facilities for the two year period immediately following the expiration of this Agreement upon such conditions as the parties mutually agree. 8. CUSTOMER agrees to inform, require and cause any food provider, caterer or concessionaire that operates or will operate at the Facilities or third party that leases or builds on any portion of the Facilities during the term of this Agreement to be bound by the terms and conditions of this Agreement and to honor the Brand sales, advertising and promoting exclusivity. The Muskego Community Festival is excluded from this agreement. 9. All art work and logo sheets to be used in any advertisements, signage and press releases promoting the Brands are subject to the prior mutual approval of PAS and CUSTOMER, with neither party unreasonably withholding such approval. . 10. Except if prohibited by law, PAS will provide service on all equipment without charge to CUSTOMER. All rights, title and interest in all PAS equipment leased to CUSTOMER shall at all times remain with PAS. 2 . 11. CUSTOMER represents and warrants to PAS that all appropriate approvals required to enter into this Agreement have been granted and the individual executing this Agreement on behalf of CUSTOMER has been duly authorized by any and all persons or entities of which authorization is required to enter into this Agreement on behalf of CUSTOMER. CUSTOMER also agrees that at no time will it challenge, contest, disclaim or deny the authority of the individual signing this Agreement on behalf of CUSTOMER or use as a basis to void, cancel or nullify this Agreement a claim that the individual signing below was not authorized to sign this Agreement on behalf of CUSTOMER. Further, CUSTOMER guarantees and warrants that the execution, delivery and performance of this Agreement by CUSTOMER will not and does not violate any agreements with or the rights of third parties. 12. In the event any of the covenants, agreements, terms or provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms and provisions contained herein shall not in any way be affected, prejudiced or disturbed thereby. 13. In the event either party believes there has been a material breach of this Agreement it shall notify the party alleged to be in breach, in writing, of the alleged breach. The notice shall state the alleged breach and the steps necessary to cure. In the event the alleged breach is not cured, and/or the parties are unable to agree on the nature of the breach or cure, either party may terminate this Agreement. . 14. If either party fails to perform any of the promises set forth in this Agreement after an opportunity to cure, then as an option but not as its sole remedy, a party may terminate this Agreement. Upon termination CUSTOMER shall return to PAS a pro rata portion of all paid but unearned monetary payments. 16. In the event the parties are unable to resolve an alleged breach or termination of this Agreement, the dispute shall be resolved by non-binding arbitration to be conducted in Milwaukee, Wisconsin, pursuant to the American Arbitration Association's rules of commercial arbitration before a single arbitrator. In the event of arbitration or other litigation, the prevailing party shall be entitled to collect its reasonable attorney's fees and costs from the non-prevailing party. 17. Any failure by either party hereto to enforce at any time or for any period of time anyone or more of the terms or conditions of this Agreement, shall not be a waiver of such terms or conditions or of either party's right thereafter to enforce each and every term and condition of this Agreement. 18. It is mutually understood and agreed, and it is the intent of PAS and CUSTOMER that an independent contractor relationship be established and is hereby established under the terms and conditions of this Agreement: that employees of CUSTOMER are not, nor shall they be deemed to be, employees of PAS; and, that employees of PAS are not nor shall they be deemed to be employees of CUSTOMER. 19. This Agreement may not be assigned by either party hereto without the express written consent of the other. . 20. This Agreement fully expresses the entire understanding of PAS and CUSTOMER. Any and all prior understandings are hereby canceled. No future changes in the terms of this Agreement shall be valid, except when and if reduced to writing and signed by legally authorized officials of PAS and CUSTOMER. 3 . 21. This Agreement shall be governed by Wisconsin law. IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written. City of Muskego PepsiAmericas, Inc. By: /JI((/d d~ I By: ~c#~ Marti Latour Title: ~/? Date: - /J/t?J Title: Date: . . 4 . . . COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #069-2005 APPROVAL OF BEVERAGE AGREEMENT BETWEEN PEPSIAMERICAS, INC. AND THE CITY OF MUSKEGO BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Parks and Recreation Board and the Finance Committee, does hereby approve the attached Agreement between PepsiAmlricas, Inc. and the City of Muskego. J BE IT FURTHER RESOLVED That the Mayor is ~uthi,ted to sign the Agreement in the name of the City. I ) DATED THIS DAY OF 'J.:.'Ìf í~ l P NSORED BY rI\> r.~ !l NANCE COMMITTEE \) lAid. Nancy Salentine i / Ald. Eric Schroeder \' :/ Ald. Eileen Madden / II / This is to certify that this is a true and accurate copy of Resolution #069-2005 which was adopted by the Common Council of the City of Muskego. Clerk-Treasurer 4/05 jmb