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HomeMy WebLinkAboutresolution.council.097-05RESOLUTION #97 (Series of 2005) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND SWIRE PACIFIC HOLDINGS INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING VENDING MACHINES, PRODUCT AND EVENT SPONSORSHIP AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Swire Pacific Holdings Inc., a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Swire Pacific Holdings Inc. regarding vending machines, product and event sponsorship, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: January 3, 2006 derud, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held December 12, 2005 K~hryn S. Koch, City Clerk CITY OF ASPEN EXCLUSIVE PURCHASE, SALE, AND ADVERTISING AGREEMENT This EXCLUSIVE PURCHASE, SALE, AND ADVERTISING AGREEMENT (the "Agreement") is entered into between The City of Aspen, a Colorado Home Rule Municipality ("Customer"), whose address is City Manager, 130 S. Galena Street, Aspen, Colorado 81611, and SWIRE PACII~IC HOLDINGS INC. which is a Delaware corporation doing business as Swire Coca-Cola, U.S.A., CCoca-Cola"), whose address is1220 Devereux Road, Glenwood Springs, Colorado 81601. RECITALS WHEREAS, Customer is engaged in the operation of various recreational facilities in the City of Aspen, including, but not limited to the Aspen Recreation Center, the Red Brick Recreation Department, Aspen City Hall, Ice Garden (the "Facilities"), and in connection therewith sells and advertises certain beverage products to its students, patrons, employees, guests, and others; WHEREAS, Coca-Cola is engaged in the business of bottling and distributing various beverage products and in operating related businesses; WHEREAS, Customer and Coca-Cola desire to enter into this Agreement pursuant to which Customer will purchase from Coca-Cola for resale, or otherwise allow Coca-Cola to sell, through vending machines snack products, including without limitation, all vended snacks, soft drinks, mineral waters, water, flavored water, juices, sports drinks, iced teas, and similar products, but not including dairy products, alcoholic beverages, fresh perishable juices, brewed teas, personalized for Customer labeled water, and Water from the "tap" (collectively the "Products") to consumers at Customer's Facilities, including new locations opening during the Term of the Agreement, and any expansions of the Facilities; NOW THEREFORE, in exchange for valuable consideration, including without limitation, the mutual covenants, agreements and representations contained in this Agreement, the receipt of which is hereby acknowledged, Customer and Coca-Cola, with the intent to be legally bound, do covenant and agree as follows: OBLIGATIONS Section One: Exclusivity and Marketing 1.1 Coca-Cola will provide Customer with: (a) Commissions on sales and all necessary Vending Machines and Coolers as agreed by parties for use during the Term as set forth below; (b) "Marketing Funds" of Five Thousand Dollars ($5,000) per year for three (3) years of the Agreement in exchange for an equivalent value in sponsorship of City of Aspen special events. The first payment will be made within thirty (30) days of the execution of this Agreement by all parties, and each succeeding payment to be made within thirty days of the anniversary of the execution of this agreement by all parties; 1.2 Customer will not sell, offer for sale, or offer for complimentary consumption (or allow others persons or entities to sell, offer for sale, or offer for complimentary consumption) at the Facilities any Product other than Products purehased directly from Coca-Cola. Such obligation will apply at all times at the Facilities including, but not limited to, all special events held at the Facilities by Customer. Notwithstanding any language to the contrary herein, this agreement shall not apply to any concessionaires currently leasing space from the City, including, but not necessarily limited to Schlomo's restaurant at the Aspen Municipal Golf Course, and Champs at the Aspen Recreation Facility. Those concessionaires may continue to sell any beverage products that they desire and shall not be made a party to this Agreement. Customer may have up to 10 nonexclusive special events per cale>endar year. Vending machines shall remain operational during such events. Section Two: Vending Machines 2.1 Coca-Cola will provide all necessary Product vending machines (the "Vending Machines"), as determined by the City of Aspen, for use exclusively at the Facilities at high traffic locations mutually acceptable to Customer and Coca-Cola. The Vending Machines will be used exclusively for the resale to consumers by Customer of Products purchased by Customer from Coca-Cola as provided for by this Agreement. The Vending Machines will remain on and accessible at the Facilities at all times the Facilities are open or otherwise in use during the Term. 2.2 The Vending Machines (i) belong to and remain the property of Coca-Cola throughout and afier the expiration of the Term, and (ii) are removable by Coca-Cola from the Facilities at any time. If Coca-Cola removes the Vending Machines pursuant to this Section due to excessive damage loss or drop in volume, Coca-Cola at its sole option may terminate this Agreement without liability of any kind to Coca-Cola. 2.3 Coca-Cola will provide routine maintenance service on the Vending Machines at no cost to Customer. Coca-Cola will provide a service technician for the purpose of preventative maintenance. 2.4 Customer and Coca-Cola ;vill agree on the location of the Vending Machines. Customer will not move any of the Vending Machines at the Facilities from the locations where such machines are originally placed pursuant to this Agreement, or from any subsequent locations, without the prior written consent of Coca-Cola. Should it become necessary to move any of the Vending Machines from one location to another at the Facilities, Coca-Cola will arrange to move the Vending Machines. Customer will not move the Vending Machines. 2.5 Coca-Cola will supply and stock the Vending Machines with Products fo~ sale to consumers. Coca-Cola and the City of Aspen will mutually agree on the vending price of the Products. Coca-Cola will collect all monies deposited in the Vending Machines and pay to Customer a commission on such monies after deducting for applicable sales and use taxes and lost product as follows: 30% on 20 ounce bottled Product based on a vending price of $1.50 per bottle; 30% on 12 ounce cm~/bottled water Products based on a vending price of $1.00 per can/bottle; 30% on snack vended product based on a price of $1.00 per snack. Where appropriate, Coca-Cola will deduct all sales and use taxes from monies collected from the Vending Machines and will pay the same to the appropriate govenunent authorities on behalf of Customer. 2.6 Coca-Cola will regularly stock the vending machines twice per week on high volume locations, once per week on average volume locations, and adjust the schedule seasonally as needed. Coca Cola will provide radio dispatched, on-call service technicians to respond to service calls in a reasonable time frame during critical business hours (not limited to 8:00am to 5:00pm Monday - Friday). Section Three: Fountain Equipment 3.1 Coca-Cola may provide Customer with certain fountain equipment ("Equipment") if requested by Customer as detem~ined solely by Coca-Cola for Customer's use at the Facilities. The Equipment will be used exclusively for the resale and/or complimentary distribution to consumers by Customer of Products purchased by Customer directly from Coca-Cola as provided for by this Agreement. 3.2 The Equipment shall belong to and remain the property of Coca-Cola throughout and after the expiration of the Term. Customer will take no action to encumber or allow others to encumber the Equipment. The Equipment will be promptly picked up by Coca-Cola at the termination of the Agreement and Customer will allow Coca-Cola prompt access to the Facilities for such purpose. 3.3 Coca-Cola will provide routine maintenance service on the Equipment at no cost to Customer. If service and repairs become necessary as a result of misuse and/or vandalism, Customer will promptly reimburse Coca-Cola for the costs of all such repairs. Section Four: Snack, Soft Drink and Beverage Purchases 4.1 Customer will purchase from Coca-Cola for resale and/or complimentary distribution to consumers at the Facilities all of the fountain, bottled, and canned Products that Customer shall in good faith require at Coca-Cola's standard wholesale prices. Customer will use its best efforts to sell the maximum quantity of Products at the Facilities during the Term. Section Five: Taxes 5.1 Customer hereby assumes all liability, if any, for any federal, state and/or local taxes and licenses resulting from the resale and/or complimentary distribution by Customer of the 3 Products purchased or distributed pursuant to this Agreement. Customer agrees and certifies that the Products which Customer purchases pursuant to this Agreement will be purchased solely for the purpose of resale. Customer further agrees and certifies that in the event it pumhases the Products for any purpose other than resale, that the user or consumer of such products will file all applicable tax returns mud pay all applicable federal, state and/or local taxes Section Six: Term 6.1 The "Terns" of this Agreement will commence as of November 19, 2005 and will remain in full force until November 30, 2008 unless terminated by either party by giving the other party thirty (30) days written notice of its intent to tenuinate this agreement. Section Seven: Miscellaneous 7.1 This Agreement may not be assigned, waived, amended or modified by Customer unless agreed to by Coca-Cola in writing, and that any attempt by Customer to assign either its benefits or duties under this Agreement without first obtaining such written consent fi.om Coca- Cola shall be void. 7.2 This Agreement constitutes the entire integrated understanding between Customer and Coca-Cola, and that there are no other terms, conditions, representations or understanding, whether written or oral, concerning the rights and obligations of the parties to this Agreement except as set forth in this Agreement. 7.3 Customer in its corporate and/or institutional capacity, and any individual signing on behalf of Customer, personally represent and warrant to Coca-Cola that the execution of this Agreement has been duly and properly authorized by Customer, and if required the appropriate state, local, and/or school district officials, mud is valid and enforceable against Customer. 7.4 Where possible, each provision of this Agreement will be interpreted in such a manner as to be consistent and valid under applicable law; but if any provision of this Agreement shall be invalid, prohibited or unenforceable under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 7.5 This Agreement will be interpreted and construed according to Colorado law. The parties hereto agree that Pitkin County is the proper venue for any litigation initiated pursuant to this Agreement. 7.6 If any legal action or other proceeding is brought by a party to this Agreement or if a party engages the services of an attorney for enforcement of this Agreement or for any other purpose related to this Agreement, that party will be entitled to recover from the other party to this Agreement reasonable attorneys' fees (in-house or otherwise), costs and expenses incurred, in addition to any other relief if they successfully obtain relief. 7.7 The waiver of any breach of this Agreement by either party will in no event constitute a waiver as to any subsequent breach. 4 7.8 Customer will promptly refund to Coca-Cola an amount equivalent to the cash and cash value of all consideration provided by Coca-Cola to Customer pursuant to Section 1.1 of this Agreement, pro-rated to reflect the remaining portion of the original Three (3) year Term, in the event Customer ceases doing business, there is a change in ownership or control of the Facility, Coca Cola temfinates the Agreement pursuant to Section 2.2, or Customer otherwise breaches any of its obligations under this Agreement. This Paragraph will not limit Coca-Cola's ability to pursue its lost profits or any other remedies it may have for the breach of this Agreement by Customer. By: Its: Dated: SWIRE COCA-COLA By: Its: Dated: THE CITY OF ASPEN JPW- saved: 12/21/2005-1864-G:\john\word~agr\Coca-Cola-12-21-O5.doc Page I of 1 John Worcester From: Lee Emmons [LEmmons@swirecc.com] Sent: Tuesday, December 20, 2005 3:08 PM To: John Worcester Cc: Nancy Lesley Subject: Coca-Cola contract changes John, Paragraph 1.2 Strikethrough change - "Such obligation will apply at all times at the Facilities including, but not limited to, all special events held at the Facilities ;':bother by Customer cr cthcrc. Paragraph 1.2 Add "Customer may have up to 10 nonexclusive special events per calendar year. Vending machines will remain in operational during said events". Lee Emmons Cold Drink Manager 970-945-2434 Ext 13 12/21/2005 7.6 If any legal action or other proceeding is brought by a party to this Agreement or if a party engages the services of an attorney for enforcement of this Agreement or for any other purpose related to this Agreement, lhat party will be entitled to recover from the other party to this Agreement reasonable attorneys' fees (in-house or otherwise), costs and expenses incurred, in addition to any other relief if they successfully obtain relief. 7.7 The waiver of any breach of this Agreement by either party will in no event constitute a waiver as to any subsequent breach. 7.8 Customer will promptly refund to Ceca-Cola an amount equivalent to the cash and cash value of all consideration provided by Coca-Cola to Customer pursuant to Section 1.1 of this Agreement, pro-rated to reflect the remaining portion of the year in which any such consideration was provided to Customer in the event Customer ceases doing business, there is a change in ownership or control of the Facility, Coca Cola terminates the Agreement pursuant to Section 2.2, or Customer terminates this Agreement pursuant to Section 6.1 or breaches any of its obligations under this Agreement. This Paragraph will not limit Coca-Cola's ability to pursue its lost profits or may other remedies it may have for the breach of this Agreement by Customer. SW~ COCA-COLA By: ~ 3(_l,~ .~-"-' By: THE CITY OF ASPEN 5