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HomeMy WebLinkAbout2008 10 13 Consent 205 Concession Stands Operation Revised Agreement COMMISSION AGENDA ITEM 205 Consent X Informational Public Hearing Regular October 13,2008 Regular Meeting .~ / Mgr. I Dept. Authorization c-G? REQUEST: The Parks and Recreation Department is requesting the City Commission to authorize the City Manager to execute the Concession Stands Operation Revised Agreement with Winter Springs Youth Sports (Babe Ruth League) to operate the Central Winds Park Concession Stands. PURPOSE: The purpose of this item is to obtain City Commission approval to execute the revised agreement necessary for the Winter Springs Youth Sports (Babe Ruth League) to assume operation of the Central Winds Park Concessions. CONSIDERA nONS: . On October 13, 2008, the City Commission approved the execution of an agreement with Winter Springs Youth Sports (Babe Ruth League) regarding the operation of the Central Winds Park Concessions. . The League attorney did not review the original agreement. He recommended several changes. . The League executed the original agreement so it could begin the concession operation on October 1, 2008, with an understanding that the City Commission would consider approving the agreement with changes on October 13,2008. . Changes to this agreement include: o 4.2 The League is responsible for maintenance and repair of any 1 piece of equipment up to $1,000. o 4.7 The League will contribute up to $2,000 for a new AIC unit if it fails from Recreation Program Agreement upgrades. o 4.9 The League will pay the City for unused and unexpired inventory as a League expenditure. Unacceptable inventory will be removed by the City within 10 days. o 4.11 The League will abide by the Pepsi Bottling Group Agreement that the City is party to. o 8.0 The League is not responsible to defend the City in a lawsuit. Agenda Item Consent 205 October 13,2008 Page 2 . City staff supports all of the agreement changes. FUNDING: Elimination of concession budget and loss of $25,000 in FY 08/09. RECOMMENDATIONS: The Parks and Recreation Department recommends that the City Commission authorize the City Manager to execute the revised concession stands operation agreement with Winter Springs Youth Sports (Babe Ruth League) to operate the Central Winds Park Concessions. A TT ACHMENTS: Attachment #1: Concession Stands Operation Agreement with Exhibit A and B COMMISSION ACTION: ATTACHMENT #1 CONCESSION STANDS OPERATION AGREEMENT THIS CONCESSION STANDS OPERATIONS AGREEMENT ("Agreement"), is entered into this _ day of ,2008 by and between the City of Winter Springs, a Florida municipal corporation ("City"), and Winter Springs Youth Sports, Inc., a Florida non profit corporation ("League"). WITNESSETH: WHEREAS, the City currently maintains and operates two (2) concession stands at Central Winds Park for the purpose of providing food and beverages to individuals attending organized sporting events occurring at Central Winds Park; and WHEREAS, the City and the League desire to enter into a mutually beneficial arrangement whereby the League shall operate the City's concession stands at Central Winds Park and the City shall retain a percentage of the profits derived from the concession stand sales; and WHEREAS, the parties hereto desire to set forth their mutual understanding regarding the League's operation ofthe City's concession stands pursuant to the terms and conditions set forth in this Agreement; and NOW THEREFORE, in exchange for the mutual promises and consideration set forth herein, the parties agree as follows: 1.0 Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference as a material part of this Agreement. 2.0 Term. The term ofthis Agreement shall commence on October 1,2008 and shall remain effective until midnight on September 30, 2009. The parties shall have two (2) options to renew the term of this Agreement for additional one-year terms. Any such option shall be evidenced in a written addendum to this Agreement and shall be approved and executed by both parties hereto. 3.0 Lease of Concession Stands and Equipment. In exchange for the compensation arrangement set forth in Section 5.0 herein, the City hereby agrees to lease its Concession Stands and all concession-related equipment itemized in Exhibit "A," attached hereto and fully incorporated herein by this reference ("the Equipment"), to the League, subject to the terms and conditions set forth in this Agreement. 4.0 En~a~ement: Ooeration of Concession Stands. The City hereby engages the League and the League hereby agrees to staff, operate and maintain the two (2) Central Winds Park concession stands ("Concession Stands") for the compensation arrangement and pursuant to the terms and CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 1 of 8 conditions set forth in this Agreement. No prior or present agreements or representations shall be binding upon the parties hereto unless expressly incorporated into this Agreement. The parties agree to the following: 4.1 General Operation of Concession Stands. The League, at it sole discretion shall be responsible for the purchase of sufficient inventory of food, beverage, paper products, utensils and any other items reasonably necessary in furtherance of the operation of the Concession Stands. The League shall be responsible for the management and staffing ofthe Concession Stands during set up, operation, and clean up; collection and deposit of cash revenue; and set up, break down and clean up of Concession Stands. The responsibilities set forth in this subsection 4.1 shall not represent an exhaustive list of the League's responsibilities under the terms of this Agreement and the League shall undertake any reasonable action in furtherance of the efficient operation of the Concession Stands not inconsistent with any provision of this Agreement. 4.2 Maintenance, Repair or Replacement of Concession Stands and Equipment. The League shall be responsible for the maintenance, repair and replacement ofthe Equipment not to exceed One Thousand Dollars ($1,000.00) for anyone (1) item of repair, replacement or maintenance. All other repairs, replacements and maintenance of the Equipment in excess of this threshold shall be the responsibility ofthe City. The League shall confer with the City regarding the maintenance, repair or replacement of the Equipment and any such maintenance, repair or replacement shall be mutually agreed to by both parties hereto. Any expense of the League or the City directly related to maintenance, repair or replacement of the Equipment shall be recorded in detail as an expenditure in the concession accounting records. The City shall remain responsible for any exterior maintenance and repair to the Concession Stands and surrounding areas not necessitated by the operation ofthe Concession Stands, and for any necessary maintenance and repairs to the restroom facilities. 4.3 Hours of Operation. The League shall operate the Concession Stands: 4.3.1 Anytime two (2) or more fields are scheduled for three (3) or more continuous hours of play or anytime one (I) field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.1 shall include both League and non-League play, but shall not include the time between the end of one game and the beginning of the next game. The City shall provide the League with at least 14 days notice of any non-League games scheduled for play which would invoke the League's obligation under this subsection 4.3.1 to operate the Concession Stands. 4.3.2 Anytime the League receives notice from the City that a City-sanctioned special event is scheduled to take place at Central Winds Park that is at least three (3) hours long and is anticipated to generate attendance in excess of 200 people. The CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 2 of8 City shall provide the League with at least 14 days notice of any such event. 4.3.3 Such other times as may be determined by the League. The League shall provide at least seven (7) days prior, written notice to the City of its intent to operate the Concession Stands under this subsection. 4.4 Licenses and Certification. The League shall obtain permanent food service licenses from the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"). Further, at least one (I) League representative shall be trained and certified by the Division as a certified food protection manager. The League shall ensure that at least one (I) certified food protection manager is present anytime four (4) or more League volunteers/representatives are engaged in the storage, preparation or serving offood in the Concession Stands. The League shall be responsible for complying with any applicable state laws and regulations related to operating a public food service establishment. 4.5 Keys to Concession Stands. Upon the effective date ofthis Agreement, the City shall change the locks on the doors of the Concession Stands and provide the League with the requisite key(s). The Parks & Recreation Department Director shall maintain a copy ofthe Concession Stands key(s) and shall be permitted to maintain all reasonable access to the Concession Stands. 4.6 Utility Bills. The League shall be responsible for paying the City's electric bill for the Concession Stands. Electric service for the Concession Stands is maintained on a separate meter apart from other City buildings. Upon receipt of the electric bill for the Concession Stands, the City shall immediately forward same to the League for payment. The League shall remit payment directly to the electric utility provider and shall be responsible for any fees that may be assessed for late payment of the electric bill. 4.7 Air Conditioning Maintenance, Repair and Replacement. The League shall be responsible for the maintenance and repair of the air conditioning unit servicing the Concession Stands and shall replace the air conditioning filters for same semiannually. In the event the air conditioning unit requires replacement during the term ofthis Agreement or any extension hereto, the League agrees to contribute Two Thousand Dollars ($2,000.00) toward the cost of a new air conditioning unit. The City, at its sole discretion, shall be responsible for the selection and purchase of a replacement air conditioning unit. Any League expenditure pursuant to this subsection 4.7 shall be applied to the League's financial obligation to the City under subsection 8.1 ofthe League's Recreational Program Agreement with the City to pay to the City Three Thousand Dollars ($3,000.00) for upgrades and services to Central Winds Park. 4.8 Pest Control. The League shall be responsible for ensuring that monthly pest control services and maintenance are performed on the Concession Stands. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 3 of8 4.9 Turnover of City 's Existing Inventory. On the effective date of this Agreement, the City shall turn over any existing, usable and unexpired inventory directly related to the Concession Stands to the League. The League shall pay the City at cost for the existing, unused and unexpired inventory, and said cost shall be reflected as a League expenditure. The League shall notifY the City, in writing, of any unacceptable inventory, which the City shall remove from the Concession Stands within ten (10) days of its receipt ofthe League's notice. 4.10 Sales Tax. The League shall be responsible for the payment of any applicable sales tax required by law. 4.11 Exclusive Beverage Agreement. The League hereby acknowledges that the City is party to an Exclusive Beverage Agreement ("Beverage Agreement") with Bottling Group, LLC d/b/a The Pepsi Bottling Group, attached hereto as Exhibit "B," and fully incorporated herein by this reference. Consistent with section 1.5 ofthe Beverage Agreement, the League, as a contract concessionaire ofthe City, agrees to be bound by the terms and conditions of the Beverage Agreement during the term of the Beverage Agreement and any extensions thereto. 5.0 Compensation: Accounting & Reporting. The City and the League hereby agree as follows: 5.1 The City and the League shall each receive one-half(lti) of the net revenues generated from the League's operation ofthe Concession Stands. For purposes of this subsection 5.1, "net revenue" shall be the difference between gross revenue and total expenditures directly related to the League's operation ofthe Concession Stands and consistent with the terms of this Agreement. 5.2 The League shall submit payment to the City semiannually, on December 15 and June 15. The December 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between October I and November 30, including operation during any tournament play occurring during this period. The June 15 payment shall include the City's share of net revenue generated from the operation ofthe Concession Stands between December I and May 31, including operation during any tournament play occurring during this period. In the event the term of this Agreement is not renewed for an additional term, the League shall make its final payment to the City on or before October 15, 2009 for the City's share of net revenue generated from the operation of the Concession Stands, including operation during tournament play, between June 1,2009 and September 30,2009. If the term ofthis Agreement is renewed for an additional term, the League shall make its regularly scheduled payments to the City on December 15 and June 15 during any subsequent term. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 4 of 8 5.3 The League shall be responsible for maintaining detailed and accurate accounting records related to its operation ofthe Concession Stands. The League shall utilize generally accepted accounting practices during all times relevant to this Agreement and shall submit monthly reports to the City's Parks and Recreation Director detailing the League's gross revenue and expenditures, as well as any records related to state licensing and/or inspections related to the Concession Stands. 5.4 At the written request ofthe City, the League agrees that the City shall have the right to audit the League's books to get a full accounting of all revenue generated and expenses incurred with respect its performance under this Agreement. The League agrees that all of its records with respect to any matter covered by this Agreement shall be made available to the City, at any time during normal business hours, as often as the City deems necessary, to audit, examine, and make excerpts or transcripts of the League's books and accounting records. Failure to comply with the requirements of this subparagraph will constitute a material breach of this Agreement and irreparable harm to the City, entitling the City for legal and equitable relief including, but not limited to, specific performance and injunctive relief. This subparagraph shall survive termination of this Agreement. 6.0 Termination. Either party may terminate this Agreement upon 60 days written notice to the other party. Within ten (10) days of termination, the League shall forward to the City a final accounting of the Concession Stands operations, along with a final payment of the City's share of net revenues. The League shall remain responsible for a pro-rata share of the electric bill for the Concession Stands through the date oftermination. Further, the League shall remove any equipment which is not the property of the City from the Concession Stands within ten (10) days of termination. 7.0 General Liability Insurance. For the services performed under this Agreement, the League shall purchase and maintain, at its own expense, such general liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the services performed by the League under this Agreement. The insurance shall have minimum limits of coverage of$1 ,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. Ifthe City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 5 0[8 8.0 Indemnification and Hold Harmless. Each party to this Agreement shall indemnifY and hold the other harmless, from and against any and all claims, damages, losses, and expenses including, but not limited to, attorneys' fees, arising out of or resulting from the performance or provision of services required under this Agreement, including damage to persons or property, provided that same is caused in whole or in part by the error, omission, negligent act, failure to act, malfeasance, misfeasance, conduct, or misconduct of the indemnifYing party, its agents, servants, officers, officials, employees, or subcontractors. 9.0 Severabilitv. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence ofthe invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 10.0 Assil!:nment. The League shall not assign any of its duties and responsibilities under this Agreement to any other party without the prior written consent of the City. 11.0 Modification. Any modifications to the terms of the Agreement shall be evidenced in writing and executed by both parties hereto. 12.0 Third Party Ril:hts. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any third parties. 13.0 Sovereil!:n Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to anyone person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination ofthis Agreement. 14.0 Public Records. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control ofthe City or the League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the League shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during normal business hours CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 6 of 8 be open and freely exhibited to the City for the purpose of examination and/or audit. 15.0 Governinl!: Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the courts located in Seminole County, Florida for any state court action and Orlando, Florida for any federal court action, any objections as to jurisdiction or venue in such courts being expressly waived. 16.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): TO THE CITY: TO THE LEAGUE: Chuck Pula, Director Parks & Recreation Department Director City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-6590 Bill Manooch, President Winter Springs Youth Sports, Inc. 1515 S. Greenleaf Court Winter Springs, Florida 32708 (407) _- 17.0 Interpretation. The parties have participated in the drafting of all parts of this Agreement, and have each had an opportunity to review this Agreement with legal counsel. As a result, it is the intent ofthe parties that no portion ofthis Agreement shall be interpreted more harshly against either ofthe parties as the drafter. 18.0 IndeDendent Contractor. The League shall each be considered an independent contractor under this Agreement. 19.0 Attornev's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post-judgment collection proceedings. 20.0 Further Assurances. From and after the execution ofthis Agreement, each ofthe parties CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 7 of 8 hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents, which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. THE CITY: City of Winter Springs, a Florida municipal corporation. Ron McLemore, City Manager THE LEAGUE: Winter Springs Youth Sports, Inc., a Florida non profit corporation. Bill Manooch, President CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 8 of8 City of Winter Springs Concession Stands Inventory EXHIBIT A CONCESSION BASEBALUSOFTBALL CONCESSION SOCCER X X X X X X X X X X X X X X X X X EQUIPMENT INVENTORY Pepsi Refrigerator glass front doors (Pepsi) Hot dog machine and bun warmElr_LA.~s'"t#57681 Tag#301134) 2 Microwave Ovens Popcorn Machine Old Fashion Lemonade Machine (Sunspot) Deep FreezerjAsset #48831 Tag #301128) Coffee maker 3 - C02 tanks and tank holder Cash Register Pepsi Dispenser (Pepsi) Refrigerator regular large (Asset #48841 Tag #30112~L Compressor to make soda product Can opener heavy duty Soda syrup storage rack with product Butter machine fo~popcg~n with stool in background Refrigerator regular large Three signage boards Popcorn Machine Old Fashio_~~ernonade Machine (Sunspot) Pepsi Dispenser (Pepsi) 3 - C02 tanks and tank holder Compressor to make soda product Hot dog machine and bun warmer Coffee maker 3 - Information boards Toaster Deep Freezer (Asset #5766 1 Tag #301136) Cash Register_ Additional Toaster 2 Metal Storage Containers AC Air Handler 2 sinks small hand wash and large plate wash station Hot water heater 2 mop buckets Food heating lamps Electric Hot Plate Connection box from refrigerator Pump up hot liquid dispenser Can opener heavy duty Filter for Ice Machine 2 Greaseless FryerlWarmer (Asset #5753 & 57541 Tag#30113~_&_301133) Side_by side refrigerator Large (Asset #5765 1 Tag #301135) Manitowoc Ice Machine (Asset #862 1 Tag #301307) X X X X X X X X X X X X X X X X X X X X X X X X X X .. I. EXHIBIT B 0' EXCLUSIVE BEVERAGE AGREEMENT CITY OF WINTER SPRINGS - THE PEPSI BOTTLING GROUP lIDS AGREEMENT is made this _ day of , 2003 by and between the CITY OF WINTER SPRI~GS, FLORIDA, a Florida Municipal Corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ("City"), and BOTTLING GROUP, LLC, d/b/a THE PEPSI BOTTLING GROUP, a Delaware limited liability corporation, whose address is One Pepsi Way, Somers, NY 10589 ("PBG"). RECITALS: WHEREAS, PBG desires to be the exclusive provider of Products (as defined below) to the City's Central Winds Park under the terms and conditions set forth in this Agreement; and WHEREAS, the City desires to accept such services from PBG under the terms and conditions set forth in this Agreement IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, and .valuable considerations, the receipt and sufficiency all of which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1 Definitions. For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shaH constitute authorization for PBG to provide the services stated herein to the City. (b) "Products" shall mean pre-mix and post-mix fountain, bottled or canned carbonated and non-carbonated beverages, teas, juices, water, energy drinks inclusive of chilled coffee, cups, and lids as provided in Exhibit "A" , which is attached hereto and incorporated herein by this reference and which are sold under the PepsiCo trademarks. (c) "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any party until said date. . Page I of 11 (d) "Park" shall mean the City of Winter Springs Central Winds Park, consisting of all facilities currently provided within Central Winds Park and any and all future expansions of the Park. (e) "PBG" shall mean Bottling Group, LLC, d/b/a The Pepsi Bottling Group, a Delaware limited liability corporation or any of its local affiliates. . (f) "Public Record" is as described in Section 119.011(1), Florida Statutes. (g) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. . 1.2 En~agement. The City hereby engages the PBG and PBG agrees to perform the Services outlined in this Agreement. No prior or present agreements or representations shall be binding upon any of the parties hereto tmless incorporated in this Agreement. 1.3 Due DiIi~ence. PBG acknowledges that it has investigated prior to execution of this Agreement and satisfied itself as to the conditions affecting the Services, the availability of materials andJabor, the cost thereof, the requirements to obtain necessary insurance and coordinate with utilities if any and as set forth herein, and the steps necessary to complete the Services within the time set forth herein. The Contractor warrants tmto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth. PBG will perform its Services with due and reasonable diligence consistent with sound professional practices. 1.4 Term. The term of this Agreement shall commence on July 1, 2003 and expire upon June 30,2010, tmless sooner terminated as provided herein. 1.5 Exclusivitv. During the term of this Agreement the Products provided by PBG, whether for resale by the City or its concessionaires or sale through vending machines, shall be the exclusive beverage products of their respective types sold, dispensed or otherwise made available, or in any way advertised, displayed, represented or promoted at or in connection with the Park by any method or through any medium whatspever(including without limitation print, broadcast, direct mail, coupons, handbills, displays and signage), whether public or private: Inno event shall there by served, dispensed or otherwise made available, or in any way advertised, displayed, represented or promoted, beverage products licensed by, or produced by bottlers licensed by The Cocoa-Cola Company or any affiliate thereof. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1 Scope of Services. The Services to be performed under this Agreement are as follows: Page 2 of 11 . . (a) PBG shall be the exclusive provider of Products, as provided above, to the Park during the term of this Agreement and which are resold by City employees, agents or concessionaires, not including vending machines. The Products shall be purchased by the City from PBG as needed at the prices established and provided on Attachment "A". The price of Product may be changed from time to time by providing thirty (30) day advanced written notice to the City. (b) PBG shall provide the City, at no charge, with appropriate equipment for dispensing the Products during the term of this Agreement. Title to such equipment will remain vested in PBG and all such equipment will be returned to PBG upon termination of this Agreement, unless otherwise provided herein. (c) PBG shall also provide the City, at no charge, service to the PBG equipment no less than annually. The City may request service calls for maintenance of the PBG equipment on an as needed basis. (d) PBG shall have the right to install, at a minimum, two (2) vending machines at the Park throughout the term of this Agreement. There may be additional vending machines upon the mutual agreement of the parties. The location of any such vending machine shall be determined by the mutual agreement of PBG and the Parks and Recreation Director or the director's designee. It shall be the responsibility of PBG to ensure any such vending machine has an adequate amount of Products to meet the demand of users of the Park.. Each vending machine, any and all monies and Products located in such vending machine, shall at all times remain the sole property ofPBG. PBG agrees to bear the risk of loss to any vending machine and any Product or monies contained therein, and located within the Park from theft or vandalism, provided however, that in the event of repeated or significant theft, vandalism, destruction or loss PBG shall have the right to move or remove such vending machines until adequate protection for such machines can be provided. ( e) PBG shall have the right to have brand identification for each fountainProduct served on all menu-boards and post-mix dispensing valves at the Park throughout the Term. (f) The city, its agents or concessionaires shall only use the post-mix or pre-mix products for use in preparing the fountain Products; (i) in accordance with the standards established by Pepsi-Cola Company; and (ii) only for immediate or imminent consumption and shall not resell the post-mix or pre-mix Products either to non-affiliated outlets or to consumers in any form other than the fountain Products. Page 3 of 11 , . 2.2 Professionalism. PBG shall do, perform and carry out in a professional manner all Services required to be performed by this Agreement. 2.3 Warranty of Services. PBG hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, PBG shall supervise and direct the Services, using its best skill and attention and shall enforce strict discipline and good order among its employees and agents. PSG shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority hearing on the performance of the Services. PSG shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION 3.1 Commission. Throughout the term, PBG will pay the City a commission equal to twenty-five (25) percent of all cash actually collected (less sales taxes, applicable license and recycling fees, if any) from sales of Products through vending machines located at the Park. Payment of such commission shall be made by PBG to the City on a monthly basis. The initial vending rate for Products shall be: 200z Gatorade@ $1.25 and for all other 200z beverage products @$1.00. The vending rate may be increased or decreased by PBG from time to time upon providing the City with a thirty (30) day advanced written notice. 3.2 Scoreboard Fund. In consideration of the exclusive rights granted in this Agreement, PBGshall provide funding of up to Twenty-Four Thousand & NO/lOO DOLLARS ($24,000.00) to purchase outdoor Pepsi-Cola branded scoreboards for use at the Park. Such scoreboards shall become the property of the City and will be maintained by the City. 3.3 Marketing Support. In further consideration ofthe exclusive rights granted in this Agreement, PBG shall provide funding of up to Five Thousand & Noll 00 DOLLARS ($5,000.00) annually, beginning upon the Effective Date of this Agreement, for support of mutually agreed upon marketing programs for the benefit of the PBG and City. Examples of programs to be offered are provided in Exhibit "B", which is attached hereto and made a part of this Agreement by this reference. ARTICLE 4 GENERAL CONDITIONS OF SERVICES . 4.1 City Insoection. Upon prior written notice to PBG, the City shall have the right to inspect and audit at all reasonable times, the books and records ofPBG relating to the sale of Products at the Park in accordance with this Agreement. Page 4 of 11 4.2 Services is a Private Undertakin~. With regard to any and all Services perfonned hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and PBG is such that PBG is an independent contractor and not an agent of the City. PBG is an independent contractor and not an employee of the City. Nothing . in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and PBG, during or after the performance of the Services under this Agreement. 4.3 City's ResDonsibilities. The City shall cooperate with PBG by: (a) Designating a person with authority to act on the City's behalf on all matters concerning the Services being provided hereunder; (b) Arrange for access to the Park by PBG as necessitated by the Services. (c) To provide, with the agreement ofPBG, for the location of vending machines atthe Park. ARTICLE 5 SUBCONTRACTS: ASSIGNMENT .5.1 Assi2nmeot and Subcontractin~. Unless otherwise specifically required by this Agreement, PBG shall not assign, sublet, or transfer any rights or Services under or interest in (including, but without limitations, moneys that may become due) this Agreement without the written consent of the City, except to the ext~nt that any assignment, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, PBG shall not subcontract any portion or all of the Services without the written.consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and PBG, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the City and PBG and not for the benefit of any other party. 5.2 Any costs caused by defective or ill-timed Services shall be borne by the party responsible therefor. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governioe Law:' Veoue. . This Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties Page 5 of 11 agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 PBG Representative. PBG shall designate an individual to act as a representative for PBG under this Agreement with the authority to transmit instructions, receive information, and make or interpret PBG's decisions. This person shall be PBG's contract administrator. PBG may from time to time designate other individuals or delete individuals with the authority to act for PBG under this Agreement with the authority to transmit instructions, receive information, and make or interpret the PBG's !fecisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 6.3 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. Ronald W. McLemore City Manger City of Winter Springs 1126 East State Road 434 Winter Springs, FI. 32708-2799 407-327-5957 (Phone) 407-327-6686 (Fax) TO THE PBG: Mr. Martin Hainey Director The Pepsi Bottling Group 1700 Directors Row Orlando, FL 32809 407-826-5938 (phone) 407-826-5948 (fax) Notice shall be deemed to have been given and received on the date tl1e notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notIce in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. ,> Page 6 of 11 " 6.4 Public Record, It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing ofPBG related, directly to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or PBG. Said record, document, computerized information and program, audio or video tape, photograph, or other writing ofPBG is subject to the provisions of Chapter 119, Florida Statutes, and may. not be destroyed without the specific written approval of the City, Upon request by the City, PBG shall.promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours ofPBG be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interpretation. Both the City and PBG have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.6 Amendment of A2reernent. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.7 Severability. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.8 Additional Assurances. PBG warrants and represents: (a) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b) No principal (which includes officers, directors, or executive), individual holding aprofessionallicense and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c) No principal (which includes officers, directors, or executive), individual holding a professional license and perfonning Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. Page 7 of 11 -. 6.9 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 6.10 Entire A&reement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. . 6.11 Sovereien Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed regarding the City's potential liability under state or federal law. 6.12 Ri~ht-of-First-Refusat During the term of the Agreement, PBG shall have the right of first refusal to match any offer made to the City by any third party with respect to the supply of Products to the Park, provided however, that PBG is not in default of this Agreement nor has the City exercised its option to terminate. Tliis right of first refusal shall in no way affect the City's right to terminate this Agreement pursuant to Article 9. Notwithstanding the foregoing, no sooner than seven (7) months nor later than six (6) months, prior to the natural expiration of this Agreement, PBG may request the City to enter into negotiations for the renewal of this Agreement. If the City agrees to enter into negotiations for renewal, the parties may mutually agree on the terms and conditions for renewal within sixty (60) days of the City's consent to negotiate, as provided herein. If PBG fails to request renewal negotiations, if the City denies such request, or the parties fail to reach an agreement within the time specified, this provision shall terminate. ARTICLE 7 TIME 7.1 Time of the Essence.PBG acknowledges and agrees that time is of the essence for the completion of the Services to be. performed under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 8.1 Worker's Compensation. Upon the effective date of this Agreement, PBG shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 General Liability. Upon the effective date of this Agreement, PBG shall submit proof of general liability insurance to COver claims for general liability becaulle of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum limits of coverage of$I,OOO,OOO.OO per occurrence. Page 8 of 11 8.3 Insurance Requirements. This paragraph shall be applicable to Sections 8.1 and 8.2 The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whichever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and PBG by certified mail, return receipt requested. All such insurance shall remain in effect during the term of this Agreement. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured." PBG shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect. pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all Services performed pursuant to this Agreement, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event PBG fails to maintain said insurance, the City, at its option, may elect to terminate this Agreement without penalty by written notice to PBG. 8.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, PBG agrees to the fullest extent permitted by law, to indemnify and hold harmless the City arid its, employees, officers, and attorneys from and against all claims, losses, damages, personal ;, injuries (including but not limited to death), or liability (including reaSonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from PBG's performance of any Services provided pursuant to this Agreement. The indemnification prOVIded above shall obligate PBG to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City _ , or its employees, officers, and attorneys which may result from the Services under this Agreement whether the Services be performed by PBG or anyone directly or indirectly employed by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This paragraph 8.4 shall surVive termination of this Agreement. 8.5 Standard of Care. In performing its Services hereunder, PBGwill use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination For Cause. Either party may terrninate this Agreement if the other commits a material breach ofthe Agreement; provided, however, that the terminating party has given the other party sixty (60) days advance written notice and opportunity to remedy the breach. Page 9 of 11 9.2 Termination For Convenience. Either party may terminate this Agreement for convenience, without penalty other than as provided in this sub-section, by providing one-hundred eighty (180) days. advance written notice of termination to the other. (a) Where the Agreement is terminated for convenience by PBG, to the extent Services have been performed by PBG, the City shall pay PBG, as full payment for all Services performed and all expenses incurred, the sums that are actually due and owing to PBG for Product delivered to the City for resale through termination, and PBG shall pay to the City all commissions earned from sales of Product from vending machines through termination. The City shall have no obligation to reimburse any of the monies expended for the purchase of scoreboards in the Park. (b) Where the Agreement is terminated for convenience or cause by the City to the extent Services have been performed by PBG, the City shall pay PBG, as full payment for all Services performed and all expenses incurred, the sums that are actually due and owing to PBG for Product delivered to the City for resale through termination, and PBG shall pay to City all commissions earned from sales of Product from vending machines through termination. The City shall reimburse to PBG a portion of the monies provided for the purchase of scoreboards in the Park. The amount of such reimbursement shall .be determined by multiplying the scoreboard fee paid by a fraction, the numerator of which is the number of months remaining in the term atthe time of such termination and the denominator of which is eighty-four (84). 9.3. Expiration. Upon expiration of the term of this Agreement, if the City has not entered , into a further agreement with PBG for the purchase of Products, the City shall surrender to PBG all equipment installed in the Park for the serving or dispensing of such product. Upon mutual agreement of the parties, the City may purchase such equipment at the current fair market value of such equipment. 9.4 Waiver. Failure of either party to insist upon performance within any time period or upon a proper level or quality of performance shall not act as a waiver of the either party's right to later claim a failure to perform. Page 10 of 11 IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. Witnesses CITY OF WINTER SPRINGS, FLORIDA , . .~~ 0.. \ \a. d,""o c1~~ By: /~~~-? Ronald W. !\1cLemcire Title: City Manager Dated: July 24, 2003 .~ Witnesses: . Print Name: ~,;s' SAM?M. BOTTLING GROUP, LLC, d/b/a THE PEPSI BOTTLING GROUP (pBG) . ~d'-.ri~ nntName: ~ tSi. 'l...letJC- ~~~~ Title: Dllt:LTOIL OiV PLa..t l~ 5ACf3 Dated: G/lb/o') I , F:\Doc.\Clty o(Wloler Sprlog.lPepsl BottUoglAgreemeollPep.I_Agreemeot_061303.wpd Page 11 of 11 .., ", Exhibit "A" Central Winds Park Pricing Of Bottled and Canned Products Effective 2003 Package Products Available Price/Case or Gallon 100z NR Bottles CSD Pepsi, Diet Pepsi $10,75/24 120z Cans CSD See Attached $ 7.50/24 200z Non Carb . Fruitworks, Lipton $16.95/24 200z Isotonic Allsport $13.50/24 200z PET CSD See Attached $16.95/24 200z PET Water Aquafina $ 7.95/24 1.5L PET Water Aquafina $ 7.95/15 Chilled Coffee Starbuck $10.75/12 . 160z PET Juices Dole $ 9.55/12 Energy Products " Starbucks Double Shot, SoBe $31.95/24 Adrenaline Rush, Dew Amp SoBe 200z Glass Various $11.10/12 GATORADE Fruit Punch, Lemon Lime, Orange, " $18.00/24 Strawberry Ice, Riptide Hush, Glacier Freeze Page 1 of 3 -. . FOUNTAIN PRODUCT PRICING - CITY CONTROLLED CONCESSIONS .' 5 gal. Bag in Boxes(BIB} Dr. Peper, Lipton Teas (Sweet, $46.25/BIB Unsweet, Raspberry), Fruitworks Punch, Lipton Lemonade 5 gal. Bag in Boxes(BIB} Pepsi, Diet Pepsi, Sierra Mist, Mt. $51.25/BIB Dew. Mug Root Beer, Slice Orange, Mt. Dew Code Red FOUNTAIN PRODUCT PRICING - NON CITY CONTROLLED CONCESSIONS 5 gal. Bag in Boxes(BIB} Dr. Peper, Lipton Teas (Sweet, $65/BIB Unsweet,'Raspberry), Fruitworks Punch, Lipton Lemonade 5 gal. Bag in Boxes(BIB} Pepsi, Diet Pepsi, Sierra Mist, Mt. $60/BIB Dew. Mug Root Beer, Slice Orange, Mt. Dew Code Red Cups Case Pack Wholesale Cost 16 oz. Paper 1000 $34.00 22 oz. Paper 1000 $40.00 32 ozi Paper 480 $34.00 32 oz. TNG wi Lid & Straw 150 $50.00 32 oz. Promo wi Lid 250 $48.00 48 oz. Paper 480 $38.00 Lids Case Pack Wholesale Cost 12 oz.l16 oz.l22 oz. 2000 $28.00 . 32 oz. 960 $23.00 44 oz. 960 $23.00 ........, ~ .. J~' ". Exhibit" B" Marketing Program Examples Marketing Support Pepsi Bottling Group will support Central Winds Park with annual marketing programs valued at $5,000.00 per year. Program descriptions will be determined by Central Winds Park needs. Examples are as follow: . Sponsorship of local team. . Sponsorship of tournaments. . Banners, signage, t-shirts and event items. . Product Donations ,. July 4th sponsorship . Product sampling when available Marketing Programs Valued at $5,000 per year Page 3 of 3 l-)R()\VN, S/\LZ1\1AN, \VI.:JSS & CARC AN I':SE, P.A. /l//ol7lqr a/ [.,till' Usher L. Brown' Suzanne D'Agresta" Anthony A Garganese" Gary S Salzman' John H Ward' Jeffrey S Weiss Officc, in Orlando. kJ>>lIll1ncc. Cocoa & Viera . Board Certified Civil Trial Lawyer 'Board Certified Business litigation Lawyer 'Board Certified City. County & Local Government Law June 21, 2003 Debra S Babb.Nutcher Jeffrey P Buak John U. Bledenharn. Jr Joseph E. Blitch Michelle H Brett Douglas Lambert Jennifer A. Michael Michelle A. Reddin Vincent E. Scarlatos Erin J. O'Leary Of Counsel Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Executed Exclusive Beverage Agreement Pepsi Bottling Group City of Winter Springs - General Our File No: 1193 Dear Andrea Please find enclosed herewith for Mayor Busch's signature the original agreement between the Pepsi Bottling Group and the City of Winter Springs, regarding the provision of beverages for the Central Winds Park After the same has been executed by the Mayor, please forward a copy of the same to Hakan Guvenc, Pepsi Bottling Group, 1700 Directors Row, Orlando, FL 32809 Also, please forward a copy of the transmittal for our file. If you have any questions regarding this matter, please do not hesitate to contact our offices Very truly yours, /' , ~"..... /? Jeffrey P Buak Assistant City Attorney JPB/jdw Enclosure Agreement (Original) F:\Doc s\City of Winter Springs\General\Co rrespondence\Lorenlo-Luace s,And rea\Pepsi_ Executed _ Agreement_ Ltr071603. wpd 225 East Robinson Street, Suite 660. P.O Box 2673' Orlando, Florida 32602.2673 Orlando (407) 425.9566 Fax (407) 425.9596. Kissimmee (321) 402.0144' Cocoa & Viera (666) 425.9566 Website: WIVW.orlandolaw.net . Emall: flfm@orlandolawnet CONCESSION STANDS OPERATION AGREEMENT THIS CON ESSION STANDS OPERATIONS AGREEMENT ("Agreement"), is entered into this ~~ay of ©C:~p be ~'' , 2008 by and between the City of Winter Springs, a Florida municipal corporation ("City"), and Winter Springs Youth Sports, Inc., a Florida non profit corporation ("League"). WITNESSETH: WHEREAS, the City currently maintains and operates two (2) concession stands at Central Winds Park for the purpose of providing food and beverages to individuals attending organized sporting events occurring at Central Winds Park; and WHEREAS, the City and the League desire to enter into a mutually beneficial arrangement whereby the League shall operate the City's concession stands at Central Winds Park and the City shall retain a percentage of the profits derived from the concession stand sales; and WHEREAS, the parties hereto desire to set forth their mutual understanding regarding the League's operation of the City's concession stands pursuant to the terms and conditions set forth in this Agreement; and NOW THEREFORE, in exchange for the mutual promises and consideration set forth herein, the parties agree as follows: 1.0 Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference as a material part of this Agreement. 2.0 Term. The term of this Agreement shall commence immediately upon execution and shall remain effective until midnight on September 30, 2009. The parties shall have two (2) options to renew the term of this Agreement for additional one-year terms. Any such option shall be evidenced in a written addendum to this Agreement and shall be approved and executed by both parties hereto. 3.0 Lease of Concession Stands and Equipment. In exchange for the compensation arrangement set forth in Section 5.0 herein, the City hereby agrees to lease its Concession Stands and all concession-related equipment itemized in Exhibit "A," attached hereto and fully incorporated herein by this reference ("the Equipment"), to the League, subject to the terms and conditions set forth in this Agreement. 4.0 Engagement; Operation of Concession Stands. The City hereby engages the League and the League hereby agrees to staff, operate and maintain the two (2) Central Winds Park concession stands ("Concession Stands") for the compensation arrangement and pursuant to the terms and CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 1 of 8 conditions set forth in this Agreement. No prior or present agreements or representations shall be binding upon the parties hereto unless expressly incorporated into this Agreement. The parties agree to the following: 4.1 Geraeral Operation of Co~tcession Sta~:ds. The League, at it sole discretion, shall be responsible for the purchase of sufficient inventory of food, beverage, paper products, utensils and any other items reasonably necessary in furtherance of the operation of the Concession Stands. The League shall be responsible for the management and staffing of the Concession Stands during set up, operation, and clean up; collection and deposit of cash revenue; and set up, break down and clean up of Concession Stands. The responsibilities set forth in this subsection 4.1 shall not represent an exhaustive list of the League's responsibilities under the terms of this Agreement and the League shall undertake any reasonable action in furtherance of the efficient operation of the Concession Stands not inconsistent with any provision of this Agreement. 4.2 Maixtenance, Repair or Replacement of Concession Stands and Equipment. The League shall be responsible for the maintenance, repair and replacement of the Equipment not to exceed One Thousand Dollars ($1,000.00) for any one (1) item of repair, replacement or maintenance. All other repairs, replacements and maintenance of the Equipment in excess of this threshold shall be the responsibility of the City. The League shall confer with the City regarding the maintenance, repair or replacement of the Equipment and any such maintenance, repair or replacement shall be mutually agreed to by both parties hereto. Any expense of the League or the City directly related to maintenance, repair or replacement of the Equipment shall be recorded in detail as an expenditure in the concession accounting records. The City shall remain responsible for any exterior maintenance and repair to the Concession Stands and surrounding areas not necessitated by the operation ofthe Concession Stands, and for any necessary maintenance and repairs to the restroom facilities. 4.3 Hours of Operation. The League shall operate the Concession Stands: 4.3.1 Anytime two (2) or more fields are scheduled for three (3) or more continuous hours of play or anytime one (1) field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.1 shall include both League and non-League play, but shall not include the time between the end of one game and the beginning of the next game. The City shall provide the League with at least 14 days notice of any non-League games scheduled for play which would invoke the League's obligation under this subsection 4.3.1 to operate the Concession Stands. 4.3.2 Anytime the League receives notice from the City that aCity-sanctioned special event is scheduled to take place at Central Winds Park that is at least three (3) hours long and is anticipated to generate attendance in excess of 200 people. The CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 2 of 8 City shall provide the League with at least 14 days notice of any such event. 4.3.3 Such other times as may be determined by the League. The League shall provide at least seven (7) days prior, written notice to the City of its intent to operate the Concession Stands under this subsection. 4.4 Licenses and Certification. The League shall obtain permanent food service licenses from the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"). Further, at least one (1) League representative shall be trained and certified by the Division as a certified food protection manager. The League shall ensure that at least one (1) certified food protection manager is present anytime four (4) or more League volunteers/representatives are engaged in the storage, preparation or serving of food in the Concession Stands. The League shall be responsible for complying with any applicable state laws and regulations related to operating a public food service establishment. 4.5 Keys to Concession Stands. Upon the effective date of this Agreement, the City shall change the locks on the doors of the Concession Stands and provide the League with the requisite key(s). The Parks & Recreation Department Director shall maintain a copy of the Concession Stands key(s) and shall be permitted to maintain all reasonable access to the Concession Stands. 4.6 Utility Bills. The League shall be responsible for paying the City's electric bill for the Concession Stands. Electric service for the Concession Stands is maintained on a separate meter apart from other City buildings. Upon receipt of the electric bill for the Concession Stands, the City shall immediately forward same to the League forpayment. The League shall remit payment directly to the electric utility provider and shall be responsible for any fees that maybe assessed for late payment of the electric bill. 4.7 Air Conditioning Maintenance, Repair and Replacement. The League shall be responsible for the maintenance and repair of the air conditioning unit servicing the Concession Stands and shall replace the air conditioning filters for same semiannually. In the event the air conditioning unit requires replacement during the term of this Agreement or any extension hereto, the League agrees to contribute Two Thousand Dollars ($2,000.00) toward the cost of a new air conditioning unit. The City, at its sole discretion, shall be responsible for the selection and purchase of a replacement air conditioning unit. Any League expenditure pursuant to this subsection 4.7 shall be applied to the League's financial obligation to the City under subsection 8.1 of the League's Recreational Program Agreement with the City to pay to the City Three Thousand Dollars ($3,000.00) for upgrades and services to Central Winds Park. 4.8 Pest Control. The League shall be responsible for ensuring that monthlypest control services and maintenance are performed on the Concession Stands. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 3 of 8 4.9 Turnover of City's Existing Inventory. On the effective date of this Agreement, the City shall tum over any existing, usable and unexpired inventory directly related to the Concession Stands to the League. The League shall pay the City at cost for the existing, unused and unexpired inventory, and said cost shall be reflected as a League expenditure. The League shall notify the City, in writing, of any unacceptable inventory, which the City shall remove from the Concession Stands within ten (10) days of its receipt of the League's notice. 4.10 Sales Tax. The League shall be responsible for the payment of any applicable sales tax required by law. 4.11 Exclusive Beverage Agreement. The League hereby acknowledges that the City is party to an Exclusive Beverage Agreement ("Beverage Agreement") with Bottling Group, LLC d/b/a The Pepsi Bottling Group, attached hereto as Exhibit "B," and fully incorporated herein by this reference. Consistent with section 1.5 of the Beverage Agreement, the League, as a contract concessionaire of the City, agrees to be bound by the terms and conditions of the Beverage Agreement during the term of the Beverage Agreement and any extensions thereto. 5.0 Compensation; Accounting_& Reporting. The City and the League hereby agree as follows: 5.1 The City and the League shall each receive one-half (%z) ofthe net revenues generated from the League's operation of the Concession Stands. For purposes of this subsection 5.1, "net revenue" shall be the difference between gross revenue and total expenditures directly related to the League's operation of the Concession Stands and consistent with the terms of this Agreement. 5.2 The League shall submit payment to the City semiannually, on December 15 and June 15. The December 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between October 1 and November 30, including operation during any tournament play occurring during this period. The June 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between December 1 and May 31, including operation during any tournament play occurring during this period. In the event the term of this Agreement is not renewed for an additional term, the League shall make its final payment to the City on or before October 1 S, 2009 for the City's share of net revenue generated from the operation of the Concession Stands, including operation during tournament play, between June 1, 2009 and September 30, 2009. If the term of this Agreement is renewed for an additional term, the League shall make its regularly scheduled payments to the City on December 15 and June 15 during any subsequent term. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 4 of 8 5.3 The League shall be responsible for maintaining detailed and accurate accounting records related to its operation of the Concession Stands. The League shall utilize generally accepted accounting practices during all times relevant to this Agreement and shall submit monthly reports to the City's Parks and Recreation Director detailing the League's gross revenue and expenditures, as well as any records related to state licensing andlor inspections related to the Concession Stands. 5.4 At the written request of the City, the League agrees that the City shall have the right to audit the League's books to get a full accounting of all revenue generated and expenses incurred with respect its performance under this Agreement. The League agrees that all of its records with respect to any matter covered by this Agreement shall be made available to the City, at any time during normal business hours, as often as the City deems necessary, to audit, examine, and make excerpts or transcripts of the League's books and accounting records. Failure to comply with the requirements of this subparagraph will constitute a material breach of this Agreement and irreparable harm to the City, entitling the City for legal and equitable relief including, but not limited to, specific performance and injunctive relief. This subparagraph shall survive termination of this Agreement. 6.0 Termination. Either party may terminate this Agreement upon 60 days written notice to the other party. Within ten (10) days of termination, the League shall forward to the City a final accounting of the Concession Stands operations, along with a final payment of the City's share of net revenues. The League shall remain responsible for apro-rata share of the electric bill for the Concession Stands through the date of termination. Further, the League shall remove any equipment which is not the property of the City from the Concession Stands within ten (10) days of termination. 7.0 General Liability Insurance. For the services performed under this Agreement, the League shall purchase and maintain, at its own expense, such general liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the services performed by the League under this Agreement. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured. " The League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The League shall continuously maintain such insurance in the amounts, type, and quality as required by this CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 5 of 8 paragraph. 8.0 Indemnification and Hold Harmless. Each party to this Agreement shall indemnify and hold the other harmless, from and against any and all claims, damages, losses, and expenses including, but not limited to, attorneys' fees, arising out of or resulting from the performance or provision of services required under this Agreement, including damage to persons or property, provided that same is caused in whole or in part by the error, omission, negligent act, failure to act, malfeasance, misfeasance, conduct, or misconduct of the indemnifying party, its agents, servants, officers, officials, employees, or subcontractors. 9.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 10.0 Assignment. The League shall not assign any of its duties and responsibilities under this Agreement to any other party without the prior written consent of the City. 11.0 Modification. Any modifications to the terms of the Agreement shall be evidenced in writing and executed by both parties hereto. 12.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any third parties. 13.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 14.0 Public Records. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the League shall promptly supply copies of said CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 6 of 8 public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during normal business hours be open and freely exhibited to the City for the purpose of examination and/or audit. 15.0 Governin~Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the courts located in Seminole County, Florida for any state court action and Orlando, Florida for any federal court action, any objections as to jurisdiction or venue in such courts being expressly waived. 16.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): TO THE CITY: TO THE LEAGUE: Chuck Pula, Director Bill Manooch, President Parks & Recreation Department Director Winter Springs Youth Sports, Inc. City of Winter Springs 1515 S. Greenleaf Court 1126 E. State Road 434 Winter Springs, Florida 32708 Winter Springs, Florida 32708 (407) 443-9062 (407) 327-6590 17.0 Interpretation. The parties have participated in the drafting of all parts of this Agreement, and have each had an opportunity to review this Agreement with legal counsel. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 18.0 Independent Contractor. The League shall each be considered an independent contractor under this Agreement. 19.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Yauth Sports, Inc. Page 7 of 8 20.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents, which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. THE CITY: City of Winter Springa, ' a Florida municipal ooi-poratiou. - ~o~ on McLemore, ity Ri~~ger THE LEAGUE: Winter Springs oath Sports, Inc., a Florida non pro t corporation. .~,. ; ~~~ ~' , Bill Manooch, P esident CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, nc. Page 8 of 8 City of Winter Springs Exhibit A Concession Stands Inventory E ui ment In a to Concession Baseb IlSoftball Concession Soccer Pepsi refrigerator glass front doors X Hot dog machine and bun warmer (Asset #5768 /Tag #301134) X 2 microwave ovens X Slush puppy dispensor X Pop com maker X Old fashion lemonade machine X Deep Freezer (Asset#4883 /Tag #301128) X Coffee maker X 3 tank and tank holder X Cash register X _ Pepsi dispensor X Large ice maker (Asset #5361 /Tag #301130) X __ Deep refrigerator X _ Coffee and Hot chocalate machine X Refrigerator regular large (Asset#4884 /Tag #301129) X Capachino dispensor X Compressor to make soda product X Can opener heavy duty _ X .Soda syrup storage rake with product X inserts for the capachino machine/battery backup X Butter machine for popcorn with stool in background X Refrigerator regular large #3 X three signage board X Popcorn Machine 1C Lemon slush Machine X Slushy machine all flavors X Pepsi fountain machine X Cot container and storage box metal 7C Compressor to make soda product X Hot dog machine X Coffee maker X Information draw board3 ___ __ X _ ^^ Toaster _ X Deep Freezer (Asset #4883 /Tag #301128) X Cash register _ ~ X Additional toaster X Two storage metal containers large X AC air handler X Two sinks small hand wash and large plate wash station X Hot water heater X 2 mop buckets X Food heating lamps X . ~... City of Winter Springs Exhibit A Concession Stands Inventory E ui ment Invento Concession Baseb II/Softball Concession Soccer Electric hot plate 7C Connection box from the refrigerator X Pump up hot liquid dispensor X Can opener heavey duty X Pump up hot liquid dispen sor X _ Filter for ice machine X Greaseless Fryer /Warmer (Asset #5753 & #5754 /Tag #301131 8 301133) X Buns and hot dog machine/ hot dog trays X Side by Side refrigerator large (Asset #5765 / Tag #301135) X Manitowoc Ice Machine (Asset #862 /Tag #301307) X ~ t~ EXHIBIT D 's EXCLUSIVE BEVERAGE AGREEMENT CITY OF WINTER SPRINGS -THE PEPSI BOTTLING GROUP THIS AGREEMENT is made this _ day of 2003 by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, whose address is 1126 East State. Road 434, Winter Springs, Florida ("City"), and BOTTLING GROUP, LLC, d/b/a THE PEPSI BOTTLING GROUP, a Delaware limited liability corporation, whose address is One Pepsi Way, Somers, NY 10589 (`PBG"). RECITALS: WHEREAS, PBG desires to be the exclusive provider of Products (as defined below) to the City's Central Winds Park under the terms and conditions set forth in this Agreement; and WHEREAS, the City desires to accept such services from PBG under the terms and conditions set forth in this Agreement IN CONSIDERATION ofthe mutual covenants and provisions hereof, and other good, and valuable considerations, the receipt and sufficiency all of which is hereby aclrnowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1 Definitions. Forpurposes ofthis Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shall constitute authorization for PBG to provide the services stated herein to the City. (b) "Products" shall mean pre-mix and post-mix fountain, bottled or canned cazbonated and non-carbonated beverages, teas, juices, water, energy drinks inclusive of chilled coffee, cups, and lids as provided in Exhibit °`A" ,which is attached hereto and incorporated herein by this reference and which are sold under the PepsiCo trademarks. (c) "Effective Date" shall be the date on which the last signatory hereto. shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any party until said date. Page 1 of 11 (d) "Pazk" shall mean the City of Winter Springs Central Winds Park, consisting of all facilities cun:ently provided within Central Winds Pazk and any and all future expansions of the Pazk. (e) "PBG" shall mean Bottling Group, LLC, d/b/a The Pepsi Bottling Group, a Delaware limited liability corporation or any of its local affiliates. (fl "Public Record" is as described in Section 119.011(1), Florida Statutes. (g) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. 1.2 Engagement. The City hereby engages the PBG and PBG agrees to perform the Services outlined in this Agreement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Diligence. PBG acknowledges that it has investigated prior to execution of this Agreement and satisfied itself as to the conditions affecting the Services, the availability of materials and .labor, the cost thereof, the requirements to obtain necessary insurance and coordinate with utilities if any and as set forth herein, and the steps necessary to complete the Services within the time set forth herein. The Contractor warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth. PBG will perform its Services with due and reasonable diligence consistent with sound professional practices. 1.4 Term. The term of this Agreement shall commence on July 1, 2003 and expire upon June 30, 2010, unless sooner terminated as provided herein. 1.5 Exclusivity. During the term of this Agreement the Products provided by PBG, whether for resale by the City or its concessionaires or sale through vending machines, shall be the exclusive beverage products of their respective types sold, dispensed or otherwise made available, or in any way advertised, displayed, represented or promoted at or in connection with the Pazk by any method or through anymedium whatsoever (including without limitation print, broadcast, direct mail, coupons, handbills, displays and signage), whether public or private. In no event shall there by served, dispensed or otherwise made available, or in any way advertised, displayed, represented or promoted, beverage products licensed by, or produced by bottlers licensed by The Cocoa-Cola Company or any affiliate thereof. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1 Scope of Services. The Services to beperfonnedunder this Agreement are as follows: Page 2 of 11 (a) PBG shall be the exclusive provider of Products, as provided above, to the Park during the term of this Agreement and which aze resold by City employees, agents or concessionaires, not including vending machines. The Products shall be purchased by the City from PBG as needed at the prices established and provided on Attachment "A". The price of Product maybe changed from time to time by providing thirty (30) day advanced written notice to the City. (b) PBG shall provide the City, at no charge, with appropriate equipment for dispensing the Products during the term of this Agreement. Title to such equipment will remain vested in PBC,r and all such equipment will be returned to PBG upontemunation ofthis Agreement, unless otherwise provided herein. (c) PBG shad also provide the City, at no chazge, service to the PBG equipment no less than annually. The City may request service calls for maintenance of the PBG equipment on an as needed basis. (d) PBG shall have the right to install, at a minimum, two (2) vending machines at the Park throughout the term of this Agreement. There maybe additional vending machines upon the mutual agreement of the parties. The location of any such vending machine shall be determined by the mutual agreement of PBG and the~Pazks and Recreation Director or the director's designee. It shall be the responsibility of PBG to ensure any such vending machine has an adequate amount of Products to meet the demand of users of the Pazk. ~ Each vending machine, any and all monies and Products located in such vending machine, shall at all times remain the sole property of PBG. PBG agrees to beaz the risk of loss to any vending machine and any Product or monies contained therein, and located within the Pazk from theft or vandalism, provided however, that in the event of repeated or significant theft, vandalism, destruction or loss PBG shall have the right to move or remove such vending machines until adequate protection for such machines can be provided. (e) PBG shall have the right to have brand identification for each fountain Product served on all menu-boazds and post-mix dispensing valves at the Pazk throughout the Term. (f) The city, its agents or concessionaires shall only use the post-mix or pre-mix products for use in preparing the fountain Products; (i) in accordance with the standazds established byPepsi-Cola Company; and (ii) only for immediate or immanent consumption and shall not resell the post-mix or pre-mix Products either to non-affiliated outlets or to consumers in any form other than the fountain Products. Page 3 of 11 2.2 Professionalism. PBG shall do, perform and carry out in a professional manner all Services required to be performed by this Agreement. 2.3 Warranty of Services. PBG hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, PBG shall supervise and direct the Services, using its best skill and attention and shall enforce strict discipline and good order among its employees and agents. PBG shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority hearing on the performance of the Services. PBG shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION 3.1 Commission. Throughout the tens, PBG will pay the City a commission equal to twenty-five (25) percent of all cash actually collected (less sales taxes, applicable license and recycling fees, if any) from sales ofProducts through vending machines located at the Pazk. Payment of such commission shall be made by PBG to the City on a monthly basis. The initial vending rate for Products shall be: 20oz Gatorade @ $1.25 and for all other 20oz beverage products @ $1.00. The vending rate may be increased or decreased by PBG from time to time upon providing the City with a thirty (30) day advanced written notice. 3.2 Scoreboard Fund. In consideration of the exclusive rights granted in this Agreement, PBG~shall provide funding of up to Twenty-Four Thousand & NO/100 DOLLARS ($24,000.00) to purchase outdoorPepsi-Cola branded scoreboards for use at the Pazk. Such scoreboards shall become tl~e property of the City and will be maintained by the City. 3.3 Marketing Support. In further consideration of the exclusive rights granted in this Agreement, PBG shall provide funding of up to Five Thousand & No/100 DOLLARS ($5,000.00) annually, beginning upon the Effective Date of this Agreement, for support of mutually agreed upon mazketing programs for the benefit of the PBG and City. Examples of programs to be offered aze provided in Exhibit °°B", which is attached hereto and made a part of this Agreement by this reference. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1 Citv Inspection. Upon prior written notice to PBG, the City shall have the right to inspect and audit at all reasonable times, the books and records of PBG relating to the sale of Products at the Park in accordance with this Agreement. Page 4 of 11 t. 4.2 Services is a Private Undertaking. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and PBG is such that PBG is an independent contractor and not an agent of the City. PBG is an independent contractor and not an employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and PBG, during or after the performance of the Services under this Agreement. 4.3 City's Responsibilities. The City shall cooperate with PBG by: (a) Designating a person with authority to act on the Cit}rs behalf on all matters concerning the Services being provided hereunder; (b) Arrange for access to the Pazk by PBG as necessitated by the Services. (e) To provide, with the agreement of PBG, for the location ofvending machines at the Park. ARTICLE 5 SUBCONTRACTS: ASSIGNMENT ..5.1 Assignment and Subcontracting. Unless otherwise specifically required by this Agreement, PBG shall not assign, sublet, or.transfer any rights or Services under or interest in (including, but without limitations, moneys that maybecome due) this Agreement without the written consent of the City, except to the extent that any assignment, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, PBG shall not subcontract any portion or all of the Services without the written.consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and PBG, and all duties and responsibilitiesundertaken pursuant to this Agreement will be for the sole and exclusive benefit of the City and PBG and not for the benefit of any other party. 5.2 Any costs caused bydefective orill-timed Services shall be borne by the party responsible therefor. ARTICLE b MISCELLANEOUS PROVISIONS 6.1 GoverninE Law: Venue. This Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties Page 5 of 11 agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminolc County. ]f any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 PBG Representative. PBG shall designate an individual to act as a representative for PBG under this Agreement with the authority to transmit instructions, receive information, and make or interpret PBG's decisions. This person shall be PBG's contract administrator. PBG may from time to time designate other individuals or delete individuals with the authority to act for PBG under this Agreement with the authority to transmit instructions, receive information, and make or interpret the PBG's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 6.3 N tices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. Ronald W. McLemore City Manger City of Winter Springs 1126 East State Road 434 Winter Springs, Fl. 32708-2799 407-327-5957 (Phone) 407-327-6686 (Fax) TO THE PBG: Mr. Martin Harney Director The Pepsi Bottling Crroup 1700 Directors Row Orlando, FL 32809 407-826-5938 (phone) 407-826-5948 (fax) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. Page 6 of 11 6.4 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of PBG related, directly to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or PBG. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of PBG is subj ect to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, PBG shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of PBG be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interuretation. Both the City and PBG have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.6 Amendment of greement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.7 Sever, B' a word, sentence, or pazagraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or pazagraph did not exist. 6.8 Additional Assurances. PBG warrants and represents: (a) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declazed ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c) No principal (which includes officers, directors, or executive), individual holding aprofessional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. Page 7 of 11 6.9 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 6.10 Entire Agreement. This Agreement represents the entire 'and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 6.11 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed regarding the City's potential liability under state or federal law. 6.12 Right-of-First-Refusal. During the term of the Agreement, PBG shall have the right of first refusal to match •any offer made to the City by any third party with respect to the supply of Products to the Park, provided however, that PBG is not in default ofthis Agreement nor has the City exercised its option to terminate. This right of first refusal shall in no way affect the City's right to terminate this Agreement pursuant to Article 9. Notwithstanding the foregoing, no sooner than seven (7) months nor later than six (6) months, prior to the natural expiration of this Agreement, PBG may request the City to enter into negotiations for the renewal of this Agreement. If the City agrees to enter into negotiations for renewal, the parties may mutually agree on the terms and conditions for renewal within sixty (60) days of the City's consent to negotiate, as provided herein. If PBG fails to request renewal negotiations, if the City denies such request, or the parties fail to reach an agreement within the time specified, this provision shall terminate. ARTICLE 7 DIME 7.1 Time of the Essence. PBG acknowledges and agrees that time is of the essence for the completion of the Services to be performed under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY• INSURANCE 8.1 Worker's Compensation. Upon the effective date of this Agreement, PBG shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 General Liability. Upon the effective date of this Agreement, PBG shall submit proof of general liability insurance to cover claims for general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence. Page 8 of 11 8.3 Insurance Requirements. This pazagraph shall be applicable to Sections 8.1 and 8.2 The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whichever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof] shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and PBG by certified mail, return receipt requested. All such insurance shall remain in effect during the term of this Agreement. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured." PBG shall cause its insurance carvers to fiunish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all Services performed pursuant to this Agreement, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event PBG fails to maintain said insurance, the City, at its option, may elect to temunate this Agreement without penalty by written notice to PBG. 8.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, PBG agrees to the fullest extent permitted bylaw, to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from PBG's performance of any Services provided pursuant to this Agreement. The indemnification provided above shall obligate PBG to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City , or its employees, officers, and attorneys which may result from the Services under this Agreement whether the Services be performed by PBG or anyone directly or indirectly employed by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which small be reasonable and subject to and included with this indemnification provided herein. This pazagraph 8.4 shall survive termination of this Agreement. 8.5 Standard of Care. In performing its Services hereunder, PBG will use that degree of caze and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similaz locality. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination ForCaase. EitherpaztymaytenninatethisAgreementiftheothercommits amaterial breach of the Agreement; provided, however, that the terminating party has given the other party sixty (60) days advance written notice and opportunity to remedy the breach. Page 9 of 11 9.2 Termination For Convenience. Either party may terminate this Agreement for convenience, without penalty other than as provided in this sub-section, by providing one-hundred eighty (180) days advance written notice of termination to the other. (a) Where the Agreement is terminated for convenience by PBG, to the extent Services have been performed by PBG, the City shall pay PBG, as full payment for all Services performed and all expenses incurred, the sums that aze actually due and owing to PBG for Product delivered to the City for resale through termination, and PBG shall pay to the City all commissions earned from sales of Product from vending machines through termination. The City shall have no obligation to reimburse any of the monies expended for the purchase of scoreboazds in the Park. (b) Where the Agreement is terminated for convenience or cause by the City to the extent Services have been performed by PBG, the City shall pay PBG, as full payment for all Services performed and all expenses incurred, the sums that aze actually due and owing to PBG for Product delivered to the City for resale through termination, and PBG shall pay to City all commissions earned from sales of Product from vending machines thmugh termination. The City shall reimburse to PBG a portion of the monies provided for the purchase of scoreboazds in the Pazk. The amount of such reimbursement shall .be determined by multiplying the scoreboard fee paid by a fraction, the numerator of which is the number of months remaining in the term at the time of such termination and the denominator of which is eighty-four (84). 9.3. Expiration. Upon expiration of the~term of this Agreement, if the City has not entered into a further agreement with PBG for the purchase of Products, the City shall surrender to PBG all equipment installed in the Pazk for the serving or dispensing of such product. Upon mutual agreement of the parties, the City may purchase such equipment at the current fair market value of such equipment. 9.4 Waiver. Failure of either partyto insist upon performance within any time period or upon a proper level or quality of performance shall not act as a waiver of the either party's right to later claim a failure to perform. Page 10 of 11 IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. Witnesses P~~ t Name:JQn-ce. 4 l`4 ~1~tp P1-intN e:~~~.~-L+e~~ CITY OF WINTER SPRINGS, FLORIDA By: ~~ Ronald W. McLemtire Title: City Manager Dated: July 24, 2003 f' Witnesses: Print Names ~tJS SA~L~9~42 ., 11I1t Name: ~Y~ti -~ 1~~~ Cr BOTTLING GROUP, LLC, d/b/a THE PEPSI BOTTLING GROUP (PBG) By: ` Type/Print Name: - Title: Q(12tZit~2 ON P~2eut5E S~cg Dated: 6~ ~ ~ ~0~, ~~1~" F:1llon\City of Wiota Sprioga~Pepsl BottUaglAgreemeot~Pepsl_Agnemeat 061303.wpd Page 11 of 11 '~ Exhibit "A" Central Winds Park Pricing Of Bottled and Canned) Products Effective 2003 Package Products Available Price/Case or Gallon 10oz NR Bottles CSD _ .- ` ,Diet `" ; _~ $10.75124 12oz Cans CSD See Attached $ 7.50/24 20oz Non Carb Fruitworks, Lipton $16.95124 20oz Isotonic Allsport $13.50/24 20oz PET CSD See Attached $1.6.95/24 20oz PET Water Aquafina $ 7.95/24 1.5L PET Water Aquafina $ 7.95/15 Chilled Coffee Starbuck $10.75/12 16oz PET Juices Dole $ 9.55/12 Energy Products Starbucks Double Shot, SoBe Adrenaline Rush, Dew Arnp $31.95/24 SoBe 20oz Glass Various $11.10/12 GATORADE Fruit Punch, Lemon Lime, Orange, ~ Strawberry Ice, Riptide Rush, Glacier Freeze $18.00!24 Page 1 of 3 ', FOUNTAIN PRODUCT PRICING -CITY CONTROLLED CONCESSIONS 5 gal. Bag in Boxes(BIB) Dr. Peper, Lipton Teas (Sweet, $46.25/816 Unsweet, Raspberry), Fruitworks Punch, Lipton Lemonade 5 gal. Bag in Boxes(BIB) ~ Pepsi, Diet Pepsi, Sierra Mist, Mt. $51.25/816 Dew. Mug Root Beer, Slice Orange, Mt. Dew Code Red FOUNTAIN PRODUCT PRICING -NON CITY CONTROLLED CONCESSIONS 5 gal. Bag in Boxes(BIB) Dr. Peper, Lipton Teas (Sweet, $65/BIB Unsweet,~Raspberry), Fruitworks Punch, Lipton Lemonade 5 ga{. Bag in Boxes(BIB) Pepsi, Diet Pepsi, Sierra Mist, Mt. $60/BIB Dew. Mug Root Beer, Slice Orange, Mt. Dew Code Red Cups Case Pack ~ Wholesale Cost 16 oz. Paper 1000 $34.00 22 oz. Paper 1000 $40.00 32 oz/ Paper 480 $34.00 32 oz. TNG w/ Lid & Straw ~ 150 $50.00 32 oz. Promo w/ Lid 250 $48.00 48 oz. Paper 480 $38.00 Lids Case Pack Wholesale Cost 12 oz./16 oz./22 oz. 2000 $28.00 32 oz. 960 $23.00 44 oz. 960 $23.00 -,, . ~: Exhibit " B" Marketing Program Examples Marketing Support Pepsi Bottling Group will support Central Winds Park with annual marketing programs valued at $5,000.00 per year. Program descriptions will be determined by Central Winds Park needs. Examples are as follow: • Sponsorship of local team. • Sponsorship of tournaments. • Banners, signage, t-shirts and event items: • Product Donations .• July 4th sponsorship • Product sampling when available Marketing Programs Valued at $5,000 per year Page 3 of 3