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HomeMy WebLinkAboutContract 36650 (2)c©NTRACNSECRETARY T3 0 BEVERAGE SERVICES AGREEMENT This AGREEMENT (the "Agreement") is made and entered into between Coca-Cola Enterprises Inc. d/b/a Coca-Cola Bottling Company of North Texas, a Delaware corporation (hereinafter referred to as "Company"), and the City of Fort Worth, a home rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas, acting by and through its July authorized City Manager, having its principal place of business at 1000 Throckmorton Street, Fort Worth, Texas 76102 (hereinafter referred to as the "City"). In consideration of the mutual promises as set out herein, the City wishes to grant to Company, and Company wishes to obtain, the exclusive rights to (i) offer Beverages for sale at certain City -owned Facilities (as defined herein), and (ii) market and associate Beverages with the City and to promote their consumption and sale generally and at the Facilities. The parties agree to the following terms. 1. Term. This Agreement takes effect on cku�,u,,. Z , 2008 (the "Effective Date") and expires on J",,u� uj , 2018 unless (i) mutually extended under the terms hereof or by writ- ten agreement o hf tt e parties, or (ii) sooner terminated as provided herein (the "Term"). 2. Definitions. All defined terms used in this Agreement and not otherwise defined shall have the meanings set forth on Exhibit A. 3. Beverage Availability Rights. 3.1 Subject to the Permitted Exceptions set forth in Section 5, City hereby grants to Com- pany the exclusive right to sell or distribute Beverages at the Facilities identified in Exhibit C, including portable concession beverage stations operated by licensed and contracted concessionaires. Subject to the Permitted Exceptions set forth in Section 5, City agrees that its concessionaires will purchase their complete requirements of beverage Products for the Facilities directly from Company. Company and City agree that, at a minimum, the following Products shall be available at each refreshment location: Coca-Cola® classic (or Coke®), diet Coke®, and Sprite. Subject to the Permitted Exceptions set forth in Section 5, no Competitive Products shall be sold, made available, advertised, or promoted at the Facilities. 3.2 City shall use its reasonable efforts to maximize the sale and distribution of Products at the Facilities. 3.3 Company agrees to sell post -mix Products to City for City's own use and for direct re- sale to the ultimate consumer, at the initial price per gallon set forth in Exhibit C. Such prices shall remain in effect through Agreement Year one and thereafter are subject to change on an annual basis. Annual price increases for post -mix Products shall occur automatically on or about the anniversary date of each year in the Term. The City agrees that neither the City nor its licensed and contracted concessionaires shall display Com- petitive Product logos on any cups served at the Facilities. 3.4 Subject to the Permitted Exceptions set forth in Section 5, City hereby grants to Company exclusive Beverage vending machine rights at the Facilities identified in Exhibit C. Com- pany shall be required and City shall permit Company to place and maintain in place a minimum of one hundred thirty-two (132) Beverage vending machines, a minimum of six 02-'I 9-08 P05 � 15 I N (6) Beverage coolers, and a minimum of eighteen (18) fountain Beverage dispensers in mutually agreed upon high -traffic locations during the Term. 4. Marketing Rights. 4.1 City grants to Company the following exclusive marketing rights to: 4.1.1 Market and promote City's Facilities and events held at said Facilities through signage placed on the front of Company's Beverage vending machines. Such marketing activity will be mutually agreed upon between City and Company. 4.1.2 Market and promote Beverages in connection with the City and the Facilities during the Term of this Agreement, including the use, subject to Sections 4.3 and 19 of this Agreement, of the Account Marks on a royalty -free basis. City acknowledges and agrees that such promotional activities may be conducted in conjunction with Company's customers; as such, Company shall have the right to incorporate its customers' marks, logos and/or branded products with the Account Marks on any advertising, point -of -sale, packaging or premium items or materials. Subject to Sections 4.3 and 19, City hereby grants Com- pany a license to use the Account Marks during the term of this Agreement, on a royalty -free basis for the sole purpose of promoting Products as provided herein. City agrees to work with Company on a case -by -case basis to assist in promotions conducted by Company with its customers. 4.1.3 Refer to the Company in any of the Company's marketing materials as the ficial Beverage Provider for the City of Fort Worth." 4.1.4 City recognizes that Company has paid valuable consideration to ensure an ex- clusive associational relationship with City, the Facilities, and the Account Marks with respect to Beverages and this Agreement and that any dilution or diminution of such exclusivity seriously impairs Company's valuable rights under this Agreement. Accordingly, City will promptly oppose Ambush Marketing and take all reasonable steps to stop Ambush Marketing and to protect the exclusive as- sociational rights granted to Company by City in this Agreement. In the event any such Ambush Marketing occurs during the Term, each party shall notify the other parties of such activity immediately upon learning thereof. 4.2 City grants to Company the following exclusive merchandising rights, subject to the Permitted Exceptions set forth in Section 5: 4.2.1 Materials promoting the Products at the point -of -sale at the Facilities shall in- clude translites and pictorials on dispensing equipment depicting Products. Products shall be clearly visible to the purchasing public and shall be displayed in a manner and location mutually acceptable to Company and the City. 4.2.2 If a menu board is provided by the Company, at its sole expense, for use at the Facilities, Product trademarks shall be prominently displayed. 4.2.3 If provided by the Company, at its sole expense, trademarked dispensing equip- ment, including hawking trays, and mobile carts, shall be used by City and its licensed and contracted concessionaires during the Term of this Agreement. 2 4.3 City shall have the right to pre -approve (i) the concept for any promotional activity; and (ii) any artwork, advertising or other items created by Company for use in promotional activities or otherwise in accordance with the terms of this Agreement and that incorpo- rate any of the Account Marks. Provided, however, that if City fails to respond to any submission within a period of twenty (20) working days subsequent to the actual receipt by City of such submission, then such submission shall be deemed approved by City. City agrees that its approval shall not be unreasonably withheld. 4.4 Subject to the Permitted Exceptions and the execution of this Agreement, the City agrees that it shall not, directly or indirectly, (nor shall City permit anyone to whom City has granted promotional, advertising or other rights) maintain any agreement or rela- tionship where Competitive Products are associated in any manner with the Facilities or City or in any fashion that creates or tends to create the impression of a relationship or connection between, the Facilities, City and any Competitive Product. Subject to the Permitted Exceptions set forth in Section 5, City agrees that no permanent or temporary advertising, signage, or trademark visibility for Competitive Products will be displayed or permitted anywhere at the Facilities. 5. Permitted Exceptions. City shall have the right to permit Competitive Products or cups to be made available: 5.1 to the attendees of all catered events 5.2 at all private events (i.e., events that are closed to the public) 5.3 any private meetings not open to the general public hosted by the owner, manufacturer or distributor (or an Affiliate of such owner, manufacturer or distributor) of Competitive Products; 5.4 To attendees of the Southwestern Exposition and Livestock Show; 5.5 to fulfill the City's contractual obligations with the Sports Advisory Council and any rights granted thereto unto the Sports Advisory Council; 5.6 To attendees of private or public events where a competitor may be exhibiting a product and sampling same to attendees. 5.7 To fulfill any previously existing contractual obligations of the City prior to the execution of this Agreement, including, but not limited to, any Facilities listed in Exhibit C. In the event of a conflict between this Agreement and City Secretary Contract No. 31742, the provisions of City Secretary Contract No. 31742 shall control. 5.8 City shall have the right to allow temporary signage, advertising or trademark display for Competitive Products to be displayed at the Fort Worth Convention Center, Will Rogers Complex and City of Fort Worth Golf Courses; provided, however, that (i) Company's exclusive promotional rights shall not be otherwise affected, and (ii) no Competitive Products may be sold. 3 6. Consideration. 6.1 Sponsorship Fees. For the rights described herein, Company agrees to pay City the total amount of Eight Hundred Fifty Thousand Dollars ($850,000) for the entire Term (the "Sponsorship Fees"). The Sponsorship Fees shall be paid in annual installments as follows: 6.1.1 For each of Agreement Years One through Three, Company will pay the City the total amount of One Hundred Fifty Thousand Dollars ($150,000); 6.1.2 For each of Agreement Years Four and Five, Company will pay the City Seventy- five Thousand Dollars ($75,000); 6.1.3 For each of Agreement Years Six through Ten, Company will pay the City Fifty Thousand Dollars ($50,000). The Sponsorship Fees for Agreement Year One will be paid within thirty (30) days of the date that this Agreement is fully executed, and subsequent installments shall be due on the anniversary of the Effective Date, Sponsorship Fees shall be deemed earned evenly over the entire Term. 6.2 Pricing Schedule. City and/or its concessionaires shall purchase all Products (excluding post -mix Products), lids and carbon dioxide from Sponsor at the initial prices set forth in Exhibit B. Thereafter, pricing is subject to an annual increase of Three percent (3%) over the previous Agreement Year's prices. Any price proposed by the Company shall be equal to or less that the cost of post -mix and other Company Products that the City's licensed and contracted concessionaires could obtain from their standard distribution channel. Annual price increases shall occur automatically on January 1 S` of each year. 6.3 Full Service Beveraae Vending Machine and Bulk Commissions. Company shall pay the City the following commissions on full -service Beverage vending sales based on the following rates and vend prices: Agreement Year I Product Commission Vend Rate 12 oz. carbonated/non-carbonated 0% $0.65 20 oz. carbonated 0% $1.00 20 oz. Dasani/PowerAde 0% $1.00 Agreement Years 2 — 5: Product Commission Vend Rate 12 oz. carbonated/non-carbonated 0% $0.75 20 oz. carbonated 0% $1.25 20 oz. Dasani/PowerAde 0% $1.25 Agreement Years 6 — 10: Product Commission Vend Rate 12 oz. carbonated/non-carbonated 20% $1.00 20 oz. carbonated 30% $1.50 20 oz. Dasani/PowerAde 20% $1.50 0 Commissions are paid at the rates set forth above based upon cash collected, after de- ducting taxes. Commissions shall not be payable on any sales from vending machines not filled or serviced by Company. Company may adjust the vend prices and commis- sions on an annual basis as necessary to reflect changes in its costs, including cost of goods. Commissions will be paid quarterly, in arrears, within thirty (30) days of the end of each applicable three-month period in which the commissions were earned, with an accounting of all sales and monies in a form satisfactory to City, and shall become im- mediate property of City. 6.4 Incremental (Volume Incentive) Funding. If, in any Agreement Year, the volume of Product purchased and paid for by City from Company and sold at the Facilities in- creases by more than ten percent (10%) (the "Volume Growth Threshold") over the im- mediately prior Agreement Year (or prior 12-month period with respect to Agreement Year one), then City will earn Incremental (volume incentive) Funding at the rate of One Dollar ($1.00) on each standard physical case of Product purchased by City directly from Company for sale at the Facilities and/or sold through Company's full -service Bev- erage vending machines that exceeds the Volume Growth Threshold (an "Incremental Case"). Incremental (volume incentive) Funding shall be paid on Incremental Cases only. Incremental (volume incentive) Funding, if earned, shall be paid by Company to City annually, in arrears, within thirty (30) days after the end of each applicable Agree- ment Year. City agrees to accept Company's case sales records for purposes of deter- mining Incremental (volume incentive) Funding earned hereunder. 6.5 Marketing Support. Company shall offer City with marketing support, with an estimated retail value of Twenty-five Thousand Dollars ($25,000) during each Agreement Year, as determined in good faith by Company ("Marketing Support" ). Such Marketing Support shall be used to develop and implement mutually agreed upon marketing programs. Any Marketing Support funds remaining unused at the end of any Agreement Year shall be retained by Company. 7. Equipment, Service and Deliveries. 7.1 Company will loan to the City and the City's licensed and contracted concessionaires all Beverage dispensing equipment ("Equipment") which is reasonably required in Company's and City's discretion to dispense Products at the Facilities during the Term. City represents and warrants that, at the execution of this Agreement, electric service at the Facilities is proper and adequate for the installation of Equipment. Company retains - - ownership of the Equipment at all times. 7.2 Company will provide City, including the City's licensed and contracted concessionaires, reasonable free maintenance service to the Equipment under a routine schedule as pro- vided by the Company. All Equipment service will be provided during normal business hours of the City, i.e., 8:00 AM — 5:00 PM, Monday through Friday, holidays excluded. Upon receipt of a service request, Company shall provide the City a toll -free service number. Upon request by the City or the City's licensed and contracted concessionaries, Company will respond within eight (8) hours during regular business hours and within twenty-four (24) hours during non -business hours and weekends, excluding holidays recognized by the City. Company shall provide a toll -free service number. 7.3 City agrees (i) it will execute documents evidencing Company's ownership of its Equip- ment, (ii) if any of the terms of the CEPA are in conflict with the terms of this Agreement, this Agreement will control, (iii) the Equipment may not be removed from the Facilities without Sponsor's written consent, (iv) City will not encumber the Equipment in any manner or permit any attachment thereto except as authorized by Company. 7.4 Company shall not be obligated to provide service hereunder during periods in which it is prevented from doing so due to strikes, civil disturbances, unavailability of parts or other causes beyond the control of Company. Neither Company nor City shall be liable for damages of any kind arising out of delays of the Company in rendering service due to strikes, civil disturbances, unavailability of parts, or any other circumstances which are reasonably beyond the control of the Company. 7.5 Delivery trucks shall be permitted only on existing service drives at the Facilities, and must be clearly identified with Company's name. Where no service drives are available, delivery trucks should follow applicable parking regulations. All Company's drivers and employees must have identification on their uniforms/clothing clearly identifying who they are and the Company's name and/or logo. 8. Installation Schedule. Upon execution of the Agreement, the City and Company agree to the following schedule: 8.1 Installation of Equipment shall be completed within ninety (90) days. Priority locations requiring earlier installations will be mutually agreed upon between the City and Com- pany. 8.2 Future equipment, if deemed necessary by mutual agreement between the City and Company, shall be installed under normal service provisions including volume projec- tions as mutually agreed upon between the City and Company. 8.3 Fountain equipment, if deemed necessary by mutual agreement between the City and Company, will be installed under the normal provisions including volume projections of 30 gallons per month per unit. 8.4 Company assumes all labor costs associated with the installation of Company desig- nated equipment. 9. Remedies for Loss of Rights, Termination and Withholding Commission. 9.1 In addition to any other legal or equitable remedy, City shall have the right to terminate this Agreement upon forty-five (45) days prior written notice to Company at any time if: 9.1.1. Company fails to make any payment due under this Agreement, and if such de- fault continues uncured after written notice for the forty-five (45) day period ref- erenced in this Section 9.1; or 9.1.2 Company breaches any material term or condition of this Agreement, and if such breach continues uncured after written notice for the forty-five (45) day period referenced in this Section 9.1. 0 9.2 In addition to any other legal or equitable remedy, Company shall have the right to ter- minate this Agreement upon forty-five (45) days prior written notice to City at any time if: 9.2.1 City breaches any material term or condition of this Agreement, and if such breach continues uncured for the forty-five (45) day period referenced in this Section 9.2; or City's right to convey the promotional and Beverage availability rights contained in this Agreement expire or are revoked. 9.3 Upon termination of this Agreement by the City for any reason other than termination under Sections 9.1.1 or 9.1.2 of this Section, City will refund any prepaid Sponsorship Fees for the applicable Agreement Year pro rated to the date of termination or, if earlier, the date of any default hereunder by City. 9.4 If any of the rights granted to Company herein are materially restricted or limited during the Term, (including, without limitation, as a result of Ambush Marketing where the City has not taken reasonable steps to stop the Ambush Marketing) then in addition to any other remedies available to Company, Company may elect, at its option, to adjust the Sponsorship Fees to be paid for the then remaining portion of the Term to reflect the diminution of the value of rights to be paid to City for the then remaining portion of the Agreement Year by notifying the City in writing prior to such election. In the event Com- pany elects to exercise its right to such adjustment, City may, at its option, within ten (10) days following receipt of notice of any adjustment, notify Company of its disagree- ment with the amount of the adjustment. The parties shall then attempt in good faith to resolve the disagreement over such adjustment. If the parties cannot, after good faith negotiations, resolve the disagreement, either the City or the Company may terminate this Agreement. 9.5 Company shall have the right to withhold and not pay further Sponsorship Fees or any other amounts which may become payable to the City pursuant to this AgreementCity has failed to perform its obligations hereunder, (ii) Company's rights hereunder have been lost, lim- ited or restricted, or (iii) there exists a bona fide dispute between the parties. In the event Com- pany elects to exercise its right to such withholding and nonpayment, City may, at its option, within ten (10) days following receipt of notice of any withholding and nonpayment, notify Com- pany of its disagreement with the action of the Company. The parties shall then attempt in good faith to resolve the disagreement over such withholding and nonpayment. If the parties cannot, after good faith negotiations, resolve the disagreement, either the City or the Company may terminate this Agreement. 10. Confidenfiality. Company understands and acknowledges that the City is a public entity under the laws of the State of Texas, and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Company shall clearly indicate to the City Oat information it deems proprietary. If the City is required to disclose any documents that may reveal any Company Proprietary information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdic- 7 tion, the City will notify Company prior to disclosure of such documents, and give Company the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Company's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Company will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11. Representations, Warranties and Covenants. 11.1 City hereby represents warrants and covenants to as follows: 11.1.1 City has full power and authority to enter into this Agreement and to grant and convey to Company the rights set forth herein. 11.1.2 All necessary approvals for the execution, delivery and performance of this Agreement by City have been obtained, and this Agreement has been duly executed and delivered by City and constitutes the legal and binding obligation of City enforceable in accordance with its terms. 11.1.3 City has the exclusive right to license the Account Marks. 11.1.4 Upon execution of this Agreement and subject to the Permitted Exceptions set forth in Section 5, City has not entered into, and during the Term of this Agree- ment, will not enter into, (a) any other agreements which would prevent it from fully complying with the provisions of this Agreement, or (b) any agreement granting Beverage availability and merchandising or promotional and/or adver- tising rights that are inconsistent with the rights granted to Company pursuant to this Agreement, including any agreements with concessionaires or third party food service operators, vending companies, and/or other entities which sell or distribute Beverages. City further covenants that it will require compli- ance with the relevant provisions of this Agreement by third party food service operators, vending companies, concessionaires, and/or other entities which sell or distribute Beverages at the Facilities. 11.2 Company hereby represents warrants and covenants to City as follows: 11.2.1 Company has full power and authority to enter into and perform this Agree- ment. 11.2.2 All necessary approvals for the execution, delivery and performance of this Agreement by Company have been obtained, and this Agreement has been duly executed and delivered by Company and constitutes the legal and binding obligation of Company, enforceable in accordance with its terms. 11.2.3 Company has not entered into and during the Term of this Agreement, will not enter into, any other agreements which would prevent it from fully complying with the provisions of this Agreement. 12. Construction %J this Agreement. 12.1 This Agreement and any dispute arising out of or relating to this Agreement, shall be governed by and construed in accordance with the laws of the State of Texas, without regard to principles of conflicts of law. 12.2 The captions used in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of the provisions set forth herein. 12.3 This Agreement, including the Exhibits, which are an integral part of this Agreement and are expressly incorporated herein by this reference, shall constitute the final, complete and exclusive written expression of the intentions of the parties hereto and shall super- sede all previous communications, representations, agreements, promises or state- ments, either oral or written, by or between any party. This provision shall not be read to invalidate or amend any other written agreements between Company and/or any Affiliate of Company and City and/or any Affiliate of City. This Agreement, and each of its terms and conditions, may be amended, modified, or waived only in writing signed by each of the parties hereto. Any such modifications, waivers, or amendments shall not require additional consideration to be effective. 12.4 Each of the parties hereto agrees that it will, in its performance of its obligations here- under, fully comply with all applicable laws, regulations and ordinances of all relevant authorities and shall obtain all licenses, registrations or other approvals required in order to fully perform its obligations hereunder. 13. Indemnification. COMPANY AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT. THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY RESULTING TO THE EXTENT OF THE BREACH OF CONTRACT, NEGLIGENCE, OMISSION OR INTENTIONAL MISCONDUCT OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS. eJ �C! IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH COMPANY AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Insurance. 14.1 The Company shall carry insurance in types and minimum amounts described below, acceptable to the City for the duration of this Agreement and, prior to the Commencement Date, shall furnish the City Manager's Office with Certificates of Insurance. 14.2 14.1.1 Commercial General Liability (CGL) $1,000,000 each occurrence $2,000,000 aggregate limit Coverage shall include but not be limited to the following: premises operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, be as comprehensive as the current Insurance Services Office (ISO) policy 14.1.2 Automobile Liability $1,000,000 each accident on a combined single limit basis Or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non -owned. 14.1.3 Workers' Compensation Statutory Employer's limits of liability $100,000 Each accident/occurrence $100,000 Disease -per each employee $500,000 Disease -policy limit Insurers shall have no right of recovery or subrogation against the City of Fort Worth, it being the intention that the insurance policy shall protect all parties to the Agreement and be primary coverage for all losses covered by the policies. 10 14.3 Company issuing the insurance policy shall have no recourse against the City of Fort Worth for payment of any premiums or assessments for any deductibles which all are at the sole risk of Company. 14.4 The terms "Owner", "City" or City of Fort Worth shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments, and Offices of the City and the individual members, employees and agents thereof in their official ca- pacities and/or while acting on behalf of the City of Fort Worth. 14.5 The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's self -insured retention of whatever nature. 14.6 The City, its officials, employees, agents and officers shall be endorsed as an "Additional Insured" to Commercial General Liability and Auto Liability policies. The City, its officials, employees, agents and officers shall not be included as an "Additional Insured" to Worker's Compensation and Employers Liability coverage. 14.7 Coverage shall be a Combined Single Limit Per Occurrence basis and the policy shall include Broad Form Property Damage Coverage with an insurance com- pany satisfactory to City. If insurance policies are not written for specified cover- age limits, an Umbrella or Excess Liability insurance for any differences is re- quired. Excess Liability shall follow form of the primary coverage. 14.8 All policies shall be written by an insurer with an A VI I or better rating by the most current version of the A. M. Best Key Rating Guide or with such other financially sound insurance carriers acceptable to the City. 14.9 Deductibles shall be listed on the Certificate of Insurance and shall be on a "per occurrence" basis unless otherwise stipulated herein. 14.10 If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certifi- cate of insurance shall state that the coverage is claims -made and the retroactive date. The insurance coverage shall be maintained for the duration of the con- tractual agreement. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. 14.11 Certificates of Insurance shall be delivered to the City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102, evidencing all the required coverages, including endorsements. 14.12 The Company shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of this Agreement or the twenty -four -month period following completion, in the case of a claims -made policy. The City reserves the right to review the insurance requirements of this section during the effective period of this Agreement and to make reasonable adjustments to insurance coverage, their limits when deemed necessary, based upon changes in statutory law, court decisions or the claims history of the industry or financial condition of the insurance company, as well as that of the Company. 11 15. Audits and Records. Company agrees that the City will have the right to audit the fi- nancial and business records of the Company that relate to beverage services under this Agreement (collectively "Records") during the Term of this Agreement and for one (1) year thereafter in order to determine compliance with this Agreement. However, each such audit shall be limited to two years (i.e., an audit of Agreement Year one shall not be permitted after Agreement Year three). Throughout the Term of this Agreement and for one (1) year thereafter, Company shall make all Records available as reasona- bly requested to the City at City Hall located at 1000 Throckmorton Street, Fort Worth or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Company will work directly with the City to resolve any claims or audit issues, but will not interact with third -party auditors or contractors. Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier termination of this Agreement. 16. Notices. Any notice or other communication hereunder shall be in writing, shall be sent via regis- tered or certified mail, overnight courier, or confirmed facsimile transmission and shall be deemed given when deposited, postage prepaid, in the United States mail, ad- dressed as set forth below, or to such other address as either of the parties shall advise the others in writing: Company: Coca-Cola Bottling Company of North Texas 3400 Fossil Creek Blvd. Fort Worth, Texas 76137 Attention: , a Facsimile: sill -'fit L -3353 with a copy to: Coca-Cola Enterprises Inc. 2500 Windy Ridge Parkway Atlanta, Georgia 30339 Attention: General Counsel Facsimile: 770-989-3619 If to City: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Facsimile: with a copy to: City Attorneys Office 1000 Throckmorton Fort Worth, Texas 76102 12 17. Assignment. This Agreement or any part hereof shall not be assigned or otherwise transferred by any party without the prior written consent of the other party. Company may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any party without the prior written consent of the City, which consent shall not be unrea- sonably withheld or delayed, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of completing this Agreement and (ii) the proposed assignee or suc- cessor has executed a written agreement with the City under which it agrees to assume all covenants and obligations of Company under this Agreement, in which case such as- signee or successor shall thereafter be deemed "definition of other party" for all pur- poses under this Agreement. 18. Independent Contractor. The parties are acting herein as independent contractors and independent employers. Nothing herein contained shall create or be construed as creating a partnership, joint venture or agency relationship between the parties and no party shall have the authority to bind the other in any respect. 19. Trademarks and copyrights. 19.1 No party shall obtain, by this Agreement, any right, title, or interest in the trademarks of the parties, nor, except as provided herein, shall this Agreement give any party the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copy- rights of the other parties. 19.2 Company, its designees or assignees, shall not use, any designated Account Marks or copyrights of the City of Fort Worth, photographs and/or recordings, or sell, transfer, or give any original prints or reproductions for circulation and/or publication for use by a third party, in any manner that reflects unfavorably upon the good name, goodwill, reputation, or image of the City of Fort Worth. Company, its designees or assignees, shall not use the any designated Ac- count Marks, copyrights, photographs and/or recordings in any manner that would cause confu- sion in the public mind as to the permitted use for which Company has been granted such rights. None of the designated Account Marks or copyrights of the City of Fort Worth shall be incorporated into a common graphic or be associated with third party trade names or marks. Company, its designees or assignees, may not use any of the designated marks or copyrights of the City of Fort Worth or authorize such use on any World Wide Web site or on any other on- line site, except as specifically approved by the City of Fort Worth. Company, its designees or assignees, shall not have the right or license to manufacture or case the production of mer- chandise items bearing the designated mark or copyright without the prior consent of the City 19.3 Company agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any Regulations issued thereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due for the use of copyrighted works in Company's performances or exhibitions to the copyright owner, or representative or said copyright owner. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City spe- cifically does not authorize, permit, or condone the performance, reproduction, or other use of iEc3 copyrighted materials by Company or its agents without the appropriate licenses or permission being secured by Company in advance. It is further agreed that Company shall defend, indemnify and hold City harmless for any claims arising from nonpayment to licensing agencies, including, but not limited to, ASCAP, BMI, and SESAC or damages arising out of Company's infrinqement or violation of the Copyright Law and/or Regulations. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Company. Company understands that they are respon- sible for securing any and all licenses by artists/performers giving permission for the recordings. Company is responsible for both reporting and payment of any music licensing fees that may be required by law. Company understands and agrees that without the proper license obtained by company, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. 19.4 The City assumes no responsibility or liability with respect to the content of any material published by Company, its designees or assigns. Company, its designees or assignees, shall be responsible for all such content, and shall indemnify and hold the City harmless with respect to such content and use, except as to the content related to the Account Marks which has been reviewed and approved by the City. 20. Venue and Jurisdiction. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 21. Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surren- der any of its governmental powers. 22. Force Majeure. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the Term shall be extended for a period of time equal to the period such party was delayed. If the United States Department of Homeland Security issues a Level Orange or Level Red Alert, City in its sole discretion, after consultation with Company, may cancel or postpone any scheduled event in the interest of public safety. i[! 23. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 24. Compliance with Laws, Ordinances, Rules and Regulations. 24.1 Each party hereto agrees that it will, in its performance of its obligations hereunder, fully comply with all applicable laws, regulations and ordinances of all relevant authorities and shall obtain all licenses, registrations or other approvals required in order to fully perform its obligations hereunder. 24.2 This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. [Remainder of page left intentionally blank] 15 cuted. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly exe- • -� • • r:,-�-� �� � Title: Date: � D Date Coca-Cola Enterprises Inc. d/b/a Coca- Cola Bottling Company_ of North Texas �� �.r � d - /� • i r Date: � / I Y /O City Secretary �1�� a� ��;� � �. ' _. NT GiTY ATTORNEY C -a� �5_�,� -�--. Contract Authorization /-a y'�o�',�-z-F Date ���'��� ����?l���� 16 i EXHIBIT A GLOSSARY OF DEFINED TERMS "Account Marks" means City's name, Faces' name, and all trademarks and logos, mascots, characters and symbols associated with the Facilities that are in existence on the Effective Date or which will be created at a later date during the Term and which are owned, licensed or oth- erwise controlled by City. "Affiliate" shall mean, as to any entity, any other entity that is controlled by, controls, or is un- der common control with such entity. The term "control" (including the terms "controlled," "con- trolled by" and "under common control with") shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity. "Agreement Year" means each twelve-month period beginning with the Effective Date and subsequent anniversaries thereof. "Ambush Marketing" means an attempt by a third party without Company's consent, to asso- ciate Competitive Products with the City, the Facilities, or the Account Marks, or to suggest that Competitive Products are endorsed by or associated with the City, the Facilities, or the Account Marks by referring directly or indirectly to the City, the Facilities, or the Account Marks. "Beverage" or "Beverages" means all non-alcoholic beverages of any kind, but shall not in- clude fresh -brewed unbranded coffee and tea products, unflavored dairy products, water drawn from the public water supply or unbranded juice squeezed fresh at the Facilities. "Case" means standard physical case of Product. "Competitive Products" means any and all Beverages other than Products (as defined herein). "Facilities" shall mean and include the entire premises of all Facilities identified in Exhibit C dur- ing the Term, including without limitation, parks, park shops, pro shops, recreation centers, playgrounds, golf courses, buildings, offices, community centers, convention halls, athletic fa- cilities (including sports complexes and gymnasiums), libraries, fire stations, players' benches, sidelines and locker rooms, parking lots, grounds, dining facilities, branded and unbranded food service outlets, concession and vending locations. "Incremental Cases" are defined as all standard physical cases of Company Beverages which are purchased by City for sale at the Facilities that exceed Volume Growth Threshold, as de- fined herein. Incremental Volume Funding shall be paid only on Incremental Cases. "Permitted Exceptions" means those exceptions as set forth in Section 5 of the Agreement. "Products" means any and all Beverage purchased directly vending machines owned and stocked exclusively by Company. "Volume Growth Threshold" is defined in Section 6.4. from Company or sold through 17 Product 12 oz. carbonated - cans 12 oz. Dasani 10 oz. MM 100% juice 20 oz. Bottles 20 oz. Dasani 20 oz. PowerAde Post -mix 5 gal. BIB CO2 20 Ib. Approved Cups/Lids 16 oz. cup 22 oz. cup 32 oz. cup 16 oz. lids 24 oz. lids 16 oz. energy EXHIBIT B Pricing Schedule* Price per case $ 7.25 $ 7.25 $15.50 $13.65 $10.00 $16.75 Price per box $47.75 Price $17.00 (deposit required) Price per case $28.32 $35.50 $35.50 $21.70 $21.70 $32.00 *The above pricing is effective for Agreement Year one only. Units oer case 1000 1000 500 2000 2000 24 19 C) C) n u) p r m NcnO O(nO n -u p C) C -n C) C m p D- �. X O T m p n? Z w? z z r P Q. 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N O O O O O O O O O O O D D D D D D D D D D D D < < < < < < < < < < < < a, c, 91) m d d m d 0) m s a rr s a ar U a a 1cr ar a (D (D cm (D (D (D fC fD m (D (D (D 0 0 0 0 C) n n n n n =r =r :r 3 =r = =r N N N N N N N N N N N N O O O O O O O O O O O O O O O O O O O O O O O O O 00 00 co 00 co Co 00 00 00 00 00 N N D 3 m Z G) OO r z m z n C � M v Z_ nz 9� D Z� co �n O D CD � C ;p 0 m 0 m > m D m� �r m Z C :� D O Z z 0 G) � 76� m z U) m r W O O C) ?' 3 c rz � N N N 0 CJi O CD C) C) 00 O CD TI > K c _ ( _ m m cn rn rn rn rn O _. M CD CD� co O �4 O D w d� O O O O O O N N CO O O O O O O O O O O w O O O O O O o O O O O O O O O O O w w W N N N 00 O O O O O O O N O O O O O -� O -• O O O O O O O O O O rt d d 0 Cl)l w N p r+ CY cr cr U V fD _ d <D fD m m fD -I O an O _ D O 9 9 9 E K d y N m CI m lw C1 fD cy 0 0 O4 V m a CD rt O O O O M O 00 00 00 00 Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/29/2008 DATE: Tuesday, January 29, 2008 LOG NAME: 60VENDING REFERENCE NO.: C-22654 SUBJECT: Authorize aTen-Year Beverage Contract with Coca-Cola Bottling Company and aFive-Year Snack Vending Contract with All Seasons Services, Inc. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute both aten-year beverage agreement with Coca-Cola Bottling Company and afive-year snack vending agreement with All Seasons Services, Inc. DISCUSSION: On May 18, 2004, (M&C C-20085) the City Council authorized the City Manager to execute an agreement with Public Enterprise Group (PEG) to assist in developing corporate partnership revenue programs. In exchange for assisting the City in identifying and negotiating any partnership contract, PEG would receive a 12 percent commission on all revenue it raises for the City through such contracts. Since that time, PEG has changed its name to Active Marketing Partnerships (AMP). A staff working group was formed in 2005 to work with AMP to gather information, identify and evaluate potential partnership opportunities and perform additional tasks relevant to developing the program. The most beneficial potential partnership was identified to be in the beverage/vending area. Currently, a number of departments have their own relationships/contracts with beverage and vending vendors. Revenue is deposited into various accounts, which makes it difficult to track and maintain. These two multi -year contracts will allow identified groups who have along -standing relationship to continue, while identifying and capturing the remaining beverage and vending opportunities. The relationship will allow for improved revenue tracking for the City, increased revenue from both up -front payments and increased commission rates, improved service by having one company versus multiple vendors, increased in -kind donations as well as special promotions/can advertisement opportunities, etc. In January 2006, the City of Fort Worth decided to reissue a new Request for Proposals (RFP) excluding specific locations originally included in the previous RFP. The City also amended the RFP to include city golf courses. The contract will include identified beverage and vending machines in City buildings, i.e. City Hall, City Cafeteria, City Hall Annex, libraries, off -site city facilities, and recreation centers. The estimated revenue is based on a guaranteed marketing fee as well as commission on beverage vending sales. AMP will receive 12 percent of revenue received as part of this agreement and will be compensated only for commissions on actual revenues received and deposited by the City. During the course of this evaluation, the City of Fort Worth Golf Division conducted preference surveys with golfers, who responded that they preferred Coca-Cola 2 to 1 over Pepsi -Cola. Based on feedback from customers, the comparison of overall value, as well as the comparison of the net present value of each proposal, the recommendation of staff and AMP, is to award aten-year contract to Coca-Cola Bottling Company and afive-year contract to All Seasons Services, Inc. http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 2/25/2008 Page 2 of 2 The estimated net revenue of the Coca-Cola agreement is $1,343,602, which does not include AMP's commission of $161,232. The City also could potentially receive $280,000 in marketing in -kind and volume incentives. The agreement with All Seasons Services, Inc., calls for no guaranteed up front dollars. During the five-year agreement, the City of Fort Worth will receive 24.1 percent of the annual snack revenue received from all applicable vending machines. A total of $373,000 will be provided to key stakeholders (Public Events, Parks, Golf, Sports Advisory Council, Cafeteria, etc.) for maintenance/operational costs and to match current contractual agreements. The City Manager's Office will continue to work with the Budget Office in monitoring the payment schedule of this agreement, as well as, track revenue based on consumption on an annual basis. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Budget Department is responsible for the collection and deposit of revenue due to the City. TO Fund/Account/Centers Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers Joe Paniagua (6191) Kirk Slaughter (2501) Anthony J. Snipes (8819) http://www. cfwnet. org/council�acket/Reports/mc�rint. asp 2/25/2008