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ORDINANCE NO. 9599
AN ORDINANCE ESTABLISHING PROJECT NO. CI1916,
TRANSFERRING, BUDGETING AND APPROPRIATING
SWIRE COCA-COLA, USA SPONSORSHIP FUNDS FROM
THE GENERAL FUND REVENUE CLEARING ACCOUNT IN
THE AMOUNT OF $5,000 TO SAID PROJECT FOR THE
PURPOSE OF PURCHASING AND INSTALLING A NEW
SCOREBOARD FOR CITY PARK FIELD #1
WHEREAS, in May 2019, the City of Pueblo entered into the 2019-2024 Exclusive
Beverage Agreement between with Swire Coca-Cola, USA; and
WHEREAS, as a term of the said Agreement, Swire Coca-Cola agreed to a one-
time sponsorship, providing funds to purchase a new scoreboard to replace the existing
scoreboard at City Park Field #1; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
Project No. CI1916 is hereby established, City Park Field #1 Scoreboard Project.
SECTION 2.
Funds in the amount of $5,000 are hereby authorized to be budgeted,
appropriated, and transferred from the General Fund Revenue Clearing account to the
City Park Field #1 Scoreboard Project, Project No. CI1916.
SECTION 3.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Ordinance.
SECTION 4.
This Ordinance shall become effective on the date of final action by the Mayor and
City Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on November 11, 2019.
Final adoption of Ordinance by City Council on November 25, 2019 .
President of City Council
Action by the Mayor:
☒
Approved on November 27, 2019 .
□
Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐
Council did not act to override the Mayor's veto.
☐
Ordinance re-adopted on a vote of , on
☐
Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item #
R-5
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
COUNCIL MEETING DATE:
November 11, 2019
TO:
President Dennis E. Flores and Members of City Council
CC:
Nicholas A. Gradisar, Mayor
VIA:
Brenda Armijo, City Clerk
FROM:
Steven Meier, Director of Parks and Recreation
SUBJECT:
AN ORDINANCE ESTABLISHING PROJECT NO. CI1916,
TRANSFERRING, BUDGETING AND APPROPRIATING SWIRE COCA-
COLA, USA SPONSORSHIP FUNDS FROM THE GENERAL FUND
REVENUE CLEARING ACCOUNT IN THE AMOUNT OF $5,000 TO
SAID PROJECT FOR THE PURPOSE OF PURCHASING AND
INSTALLING A NEW SCOREBOARD FOR CITY PARK FIELD #1
SUMMARY:
This Ordinance establishes Project No. CI1916, budgeting and appropriating sponsorship
funds received from Swire Coca-Cola, USA in the amount of $5,000 for the replacement
of the existing scoreboard at City Park Ball Field #1.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
In May 2019, the Parks and Recreation Department agreed to an exclusive beverage
agreement with Swire Coca-Cola, USA for the next five years through the RFP process.
As a term of the agreement, Swire Coca-Cola, USA agreed to provide a one-time grant
of $5,000 for sponsorship of a new scoreboard to replace the existing, unfunctional
scoreboard at City Park Field #1. The existing scoreboard at City Park Field #1 was
purchased and donated to the Parks and Recreation Department in the early 1980s by
the local Coca-Cola distributor. The scoreboard has not been functional since 2015.
FINANCIAL IMPLICATIONS:
The Parks and Recreation Department will be responsible for the installation expenses of
the new scoreboard, which will be paid for out of the Department’s annual operating
budget. The City has already received the $5,000 from Swire Coca-Cola to purchase the
supplies related to this project.
BOARD/COMMISSION RECOMMENDATION:
None
STAKEHOLDER PROCESS:
None
ALTERNATIVES:
Not approving the Ordinance will cause the sponsorship revenue from the vendor to be
returned and the project will be canceled.
RECOMMENDATION:
Approval of the Ordinance.
Attachments:
Ordinance
2019 – 2024 Exclusive Beverage Agreement
2019 — 2024 Exclusive Beverage Agreement
"Customer":City of Pueblo,Parks and Recreation Department Coca-Cola does not receive a written objection to an invoice within
d/b/a Park Bench Treats 30 days of the statement date,Customer agrees that the Pmduct was
"Coca-Cola":Swire Coca-Cola,USA acceptable and the invoice is accurate.
-'Locations"of Customer in Pueblo, Colorado covered under this 4. PROMMOTRO\Al. CONSIDERATION: Coca-Cola will
Agreement: provide Customer the following marketing and/or promotional
(a) 800 Good Night Ave. consideration during the Term of this Agreement.
(b) City Park Concessions,3435 Nuckolls Avenue (a) Upfront support in the one-time amount of Five Thousand
(c) Anthony Langoni Sports Complex.2101 W.24th Street Dollars ($5,000) for sponsorship of Scoreboard to promote
(d) City Park Pool,221 S.Parkside Lane Customer's Locations in conjunction with Coca-Cola's Products as
(e) Bessemer Park Pool,715 Central Avenue mutually agreed by Customer and Coca-Cola.Customer shad have
(t) Mineral Palace Park Pool, 1602 N.Santa Fe Avenue control over all final decisions with regards to the scoreboard, its
(g) Future Site—Lake Minnequa,2601 Palmer Avenue placement, the messages and images on the seorehoard, and all
(h) City Park Tennis Courts (vending), 330 S. City Park other matters related to the scoreboard and use of the sponsorship
Avenue funds, subject to the restrictions sot forth in Section 2(h) of this
(i) Mitchell Park Pool(vending), 1040 N.LaCrosse Avenue Agreement.
Coca-Cola Outlet 4 500277473, 500277482, 500277480, (b) Marketing support in the amount of One Thousand Five
500277474, Including all other Coca-Cola locations opened Hundred Dollars(51,500)in year one of the Term and marketing
during the Term. support in the amount of Seven Hundred Fifty Dollars($750) in
Customer Fcd.Tax ID 4(EIN):84-6000615 years three,five,seven,and nine of the Term,all of which shall be
Customer Contact:Kelly Myers used to promote Customer's Locations in conjunction with Coca-
Customer Phone 4: 719-553-2806 Cola's Products as mutually agreed by Customer and Coca-Cola.
Marketing support funds do not accrue and shall be held and
I. IA.OTERh(: The `Term"of the Agreement shall commence on managed by Coca-Cola.
4 I .2019 and shall continue until five(5)years have (c) "Performance Based Funding"as follows:
d,measured in live one-year terms,unless earlier terminated Battle/Can Products $2.00 per 24-et.case
us provided herein. This agreement may be terminated by either For each of the above-referenced Products that Customer purchases
party upon at least sixty(60)days' written notice prior to any one- From Coca-Cola during the Term (exclusive of Products sold
year term.Following the five year initial term,this agreement shall through the Vending Machines).Performance Based Funding shall
automatically renew for successive one year terms,unless a party he reflected as a reduction in the price of appropriate Products on
provides notice of its intent not to renew at least thirty (30) days invoices delivered to Customer.
prior to a renewal term.During the extension ofthe Term,Customer (d)A commission on Vending Machine sales of bottled Products
is not entitled to any marketing and/or promotional consideration (after deducting from the commission any applicable lost product)
under Section 4 of this Agreement other than vending or 25%,Coca-Cola will collect all monies deposited in the Vending
commissions. Machines.Commissions shall not be earned on canned Products.
2. EXCLUSIVITY: Commissions shall not he earned on Vending Machines in
(a) Customer will purchase all fountain, bottled, and canned designated employee areas. Customer is a tax-exempt entity and
beverage products, including without limitation, carbonated and will not be liable for any tax,including sales and use taxes.Coca-
non-carbonated beverages, soft drinks, mineral waters. water, Cola will have the sole right to set vending prices for the beverage
flavored water,juices,sports drinks,energy drinks,protein drinks. Products.
iced teas, iced coffees and similar products, all cups and lids in (c)Complimentary Products in the fmm of twenty (20)cases of
which beverages are sold,and all CO2(tank and hulk where Coca- 12oz canned Products in each year of the Term to he used at
Cola offers bulk C01),but not including dairy products,alcoholic Customer's Locations. Customer must request all available
beverages,and water from the public water supply(collectively the complimentary Products during the course of each applicable year.
"Products")exclusively from Coca-Cola for resale to consumers at If Customer does not request all available complimentary Products
Customer's Locations. This agreement and the exclusivity of by the end of each applicable year, then any complimentary
purchases shall only apply to named Locations and shall not apply Products remaining at the end of each year shall be retained by
to any other location or property owned by the Customer. Coca-Cola.
(b)Customer will sell and advertise at its Locations only Products (I) Recycling support in the amount of Five Hundred Dollars
distributed by Coca-Cola and no other Products. If fbr any reason ($500)in each year of the Term to be used to assist Customer with
is Product not purchased from Coca-Cola is sold or used by recycling efforts throughout the Term. Customer shall have
Customer at any Location,Coca-Cola may immediately remove all control over all final decisions with regards to recycling and use of
Equipment without further notice to Customer and tenninate the the recycling support.
Agreement. (g)Customer will allow Coca-Cola to use at no cost The Park's
3. PRICING AND PAYMENT TERMS: Rides Venue for its Employee Summer Picnic in years one,three,
(a)Coca-Cola will sell Products to Customer at the pricing set forth five, seven, and nine of the Term. Coca-Cola personnel shall be
in Appendix "A"hereto and otherwise at its standard wholesale required to sign the appropriate waivers prior to use of Customer's
pricing for similarly situated customers. Coca-Cola shall notify venue.
customer at least thirty(30)days prior to any change in price. 5. EOI'IP\IENT RENT-U,PROGRAM(:
(b) Payment for Product is due upon delivery unless Customer (a) Coca-Cola will lease to Customer the use of the following
applies for and is granted a credit account with Coca-Cola,in which -Equipment"for the Term of the Agreement.The term Equipment
case payment shall be due within 30 days of the date ofdelivery.If
as used herein, shut include any additions, replacements- or avariable through the Equ.prnent except as otherwise permitted
substitulia.'is that may be made by Coca-Cola during the Terns nutter this Agreement.
Onty. NAniCofE4Uinment TttriV'4IUC (t) Customer shall use the Equipment only at the Location(s)
R GDM-IO Coolers 53,536 specilicd above and shall riot at any time remove the Equipment
3 RVCC660s '52,229 From such pla.ie except in returning Mr sar'rc to Coca-Co am except
(b) Eike to the Equipment is.and vviii)at all limes remain,vested i.1,ma, be permuted by Coe i(ala a'writing.
in Coen-Cola(or"Vending Machines' with respect to the vending (gi Risk of loss damage or destruction of the i:quipment will he
machiires,peciIlia]ly) Customer will have no right.tide or nterest home solely by Customer from the cine the Equipment is delivered
it or to the Equipment,except to the quiet use of the Equipment in to Customer until returned to and accepted by(iota-Cola
the ordinary course of its business us provided in this Agreement. (lit Customer is responsible fur any federal,state an ,'or local sales.
Customer shall execute.such title documents,financing statement,. excise,prcpcm: or other taxes and licenses related to the Beverage
tis*ore things, cunt-mates and s ick other ins'.r.unents and Products and Equipment.Should Customer be a tax-exempt entity,
documents.as Coca-Cola shall reasonaoly request.Ccsrurncr shall it shall not be liable for any federal,state anvor local sales,excise,
not transler.pledge,'ease,sell,hypothecate,mortgage,assign or in property or other taxes. Customer warrant; that the Beverage
any other way encumber or dispose of rrny tit the Equipment THE. r'roducts purchased trona)wire are solely t'or the purpose of resale.
P ARTIES ACREE:, AND CI'S'TOAIER WARRANTS, Ill xT (i) Customer and Coca-Cola will agree on the location at'the
THE EQ("IPIMENT IS, AND WILL AT ALI, 'I ImAIFS Vending Machines Customer wilt not move arty of the Vending
REMAIN, PERSONAL PROPERTY OF ('OCA-COLA Machines born the Location thorn where sacli machines are
NOI WITHSTANDING THAT THE EQ(tIPMENT OR ANS' ririglnally placed pursuant to tris Agreement. or from aro,
PART THEREOF \TAN' NOW RE, OR HEREAFTER subsequent locations,except upon mutual agreement ct'the parties.
BECOME, IN ANY MANNER AFFIXED OR ATT ACHED Should it become necessa'v to move am'()tithe Vending Machines
TO, OR ENIBFDDED IN, OR PERM\NFINLEY RE:Si'iNG From one location to anomer at the facilities. Coca-Gita mull
UPON, REGI. PROPI:R'l V OR I,MPROVENI E:N FS (IN aerate: to Irose the Wending Machine,at its own cost. Customer
REAL PROPERTY. will not move the Vending Machines. Coca-Cola will supply and
(e) Customer shall no: hypothecate or attach this I-qurpment or stuck the Vending mNladiines with Products fm sae to consumers
allow the Equipment to be attached in such a manner as to become on a regular basis
part orthe realty as a tixnire or otherwise,and Customer cr anent; h• "JO 1('E PKOCR.%.AI: Coca-Coln sprees Io sere ice and
and agrees to so maintain the same that it may be easrly ter.wecd maintain the Equipment dui ee the Term and to provide service calls
without damage to luildirigs or I salty Customer shall make tri al the discounted rate to Customer of SII flit, sc long as Customer
alteration in the Pquipuient or remove, deface, or alter aro uses the Equipment only for the sale tri Products produced or
identitication sir irauemarks appearing on the Equipment. All marts dish ibuted by Coca-Cola and pros i letI sach service calls ate not the
added to the Equipment through alterations, repairs. addition, or result of Customer's negligence :All service calls must be
improvements witi constitute aecesslons to.and wilt he considered exclusively handled by Coca-Cola erre through Coca-( olds servtee
art item or the Equipment and title.o such will immediately vett in dispatch
Coca-Cola Upun•arry termination or expit'ation of this Agreement, 1. ANN"(AL- VOLUME: Time animal Pr i lust volume snail be
Customer shall return the Equipment to Coca-Cola in as-r_esricd nu less than 1,450 cases of bottle/can Products purchased Prom
onditiun,reusonablc wear and war excepted. Coca-Cola or sold through the Vending Nlacl',kiss per year Should
Idl Customer shall pay Coca-(ole the discounter)rnonehly sni t the annual volume Pall belnry such lumber Cora-Cola may
pay rnCu r Or S0 hit puyaBle in advance on has first clan of each mourn- Icrrnrnate ihe'\grcernrrnt the teams of this Section are material :o
Payment ;hal he made to Cued-Cola at 12634 youth 263 West, the Agreement
i)raper,(?haft iSg020,or to such other place the`.essor may designate 8. Ili-SINESN REVIEW:0)...:1-Cult shalt have the right during
in writing,. Such discounted rental is uttered based on Customer s Customers rcanlai has nest,hours at inspect the l-quipnie,r.and 'o
agreement to use :he [quipmert only 'tits the saie or Products review all reaordrt that relate to the Fquipmerit Coca-i;ola may
produced or drstrihuied by Cuci-Cult II'iii any etas()() i'urd.ut, conduct.account business reviews srttii 1.n:io -ter rm ii quarterly or
are purchased!num an+nnr other than Circa-Cola,in add:imn to its annual limo to ice sew :n.: mutual contrn.tments agreed to as
rights set North herein. Coca-Cola miry charge Customer the 'specified in this Agreement .Audit tal'y. Coca-Cola mar also
fallowing addit,onal tees atter notice to Costumer crt the bre ich and review any opportunities in the Customer's Locatremus)to increase
the bees irriposed.. sales
(i) .lr addition i'charge ol'SI25,00 per month on Coca-Coma `) TER\IIN,- i ION: Either party III/.1:I/ terminate this
owned Equipment for the cubic mantle Ir, which Cuiwrner is Aereemeul upon ninety(9O)days' ~trees notice to Ilia other parr)'
rnnoncompl,ancc mimthoc,tdefault of breach
(ii) An additional csininge et S' .00 per service call- 111. DE.F.AI 1.1 ItIr addition to Coca-(ala':; rights stated in the
le) CUSWIller acknuwlcd{t;es that the rent set forth herein doe,hot Agreement, Coca-Cola may terminate this Aeree.nent forthwith
ally compensate Coca-Cosa tkr its expenses in providing the upon the occurrence of any or the 'l.cw iu=events ofderault
Equiprncnt. and that Coca-Cala provides the Equipment to la) triaorrier fails to make any lease payment h,:reorder wrt:iirr
Customer ti,ir the purpose of exclr:siv,lc dispensing Coca-('ala llres a.`'er t is.tut.
Produes ( i-direr ackninvlcdrsa that the l quipmeni hear,C'n,a- (h) lir, I suipuienr s inoi,ed by Iu,lonrer 'Plorit the Loratiun(s)
Crile ('roduc' trademarks. Io_+ns and ub gens that advertise to specified aOt,yr\Nation(( nca-I nla's writer cement
co'nsumer's thyi Product, sof I ry Cocas(ola and the aviilahii tv lel Customer tanstcrs, lends, r,uh cases. or enc lathers the
um rout:In order to protect C aca Cola-s licensed tr tder marks.,name. Equ.prnent or altemp+;to do,rii
r,putation and,',ism lwrll with consumers,Customer agree;to eau,,ret (d) lir t rlm.epurutt is lav mil, strictin- attajrcd. whether by
that Cori-Cola trademarked Products are ahvans avalMMie through opera-ion()flaw titullien,sIre:
the Ecuiprrew and that nn numi-I'rea-(-old Pruuuet,are seem imide (el Customer tail.;to perform rat corm*.',, vvTh env urie,'r mute of
the material Mims. condiirmmro o-pro,uirn, herein tither Shan the
payment of rem,and such failure to comply or perform continues IS. ENTIRE AGREEMENT: This Agreement is the fill
for 10 days alter notice from Coca-Cola unless Customer disputes agreement.and no collateral agreement will become a part hereof
the Iitilure or takes measures to cum; and be binding upon the parties hereto unless In writing and properly
(1) Customer is adjudicated insolvent by a coup or tribunal,files signed by duly authorized officers ol'the ponies. For avoidance of
a voluntary petition in bankruptcy.enters into an arrangement with doubt, the teens of this Agreement take precedence over any
its creditors,applies for or consents to the appointment of a receiver national plan or agreement in which Customer or its concessionaire
or trustee of itself or its property, makes an assignment for the might otherwise participate.
benefit of creditors,suffers or allows entry of an order adjudicating 16. jtEPRESENTATION: Customer represents that the
it bankrupt or insolvent,or appointing a receiver or trustee of itself execution of this Agreement will not result in a breach of any other
or its property. agreement, including without limitation an exclusive agreement
11. REMEDIES:If Customer breaches any term or condition of with any other beverage manufacturer or supplier.
this Agreement,Coca-Cola shall have the right to exercise any one 17. NO THIRD-PARTY BENEFICIARIES: NO WAIVER
or more of the following remedies: OF IMMILNiTIES:Nothing in this Agreement is intended,nor
(a) To terminate the Agreement; should it be construed,to create any rights,claims,or benefits or
(b) To declare the entire lease amount hereunder immediately due assume any liability for or on behalf of any third party,or to waive
and payable,without notice to or demand of Customer; any immunities or limitations conferred under federal or state law,
(c) To sue for and recover all lease payments and other payments, including but not limited to the Colorado Governmental Immunity
then accrued or thereafter accruing,with respect to any or all items Act,§24-10-101 at seq.,C.R.S.
of Equipment; III. ,NO MULTI-YEAR FISCAL OBLIGATION ON CITY:
(d) To take possession of any or all Equipment without demand or This Agreement is expressly made subject to the limitations of the
notice,wherever the same may be located,without any court order Colorado Constitution.Nothing herein shall constitute.nor deemed
or other process of law. Customer hereby waives any and all to constitute,the creation of a debt or multi-year fiscal obligation or
damages occasioned by such taking of possession unless caused by an obligation of future appropriations by the City Council of Pueblo.
Coca-Cola's gross negligence or willAd misconduct. contrary to Article X, § 20 Colorado Constitution or any other
(e) To pursue any other remedy at law or in equity. constitutional,statutory or charter debt limitation.Notwithstanding
12. NO WARRANTIES: CUSTOMER ACKNOWLEDGES any other provision of this Agreement,with respect to any financial
THAT COCA-COLA IS NOT A MANUFACTURER OF THE obligation of the Customer which may arise under this Agreement.
EQUIPMENT AND THAT COCA-COLA /LAS MADE NO in the event the budget or other means of appropriations for any such
REPRESENTATIONS OF ANY NATURE WHATSOEVER year fails to provide finds in sufficient amounts to discharge such
PERTAINING TO THE EQUIPMENT OR ITS obligation,such failure shall not constitute a default or breach of this
PERFORMANCE, WHETHER EXPRESS OR IMPLIED, Agreement,including any sub-agreement,attachment,schedule,or
INCLUDING (WITHOUT LIMITATION) ANY IMPLIED exhibit thereto, by the Customer. Customer may in its sok and
WARRANTIES OF MERCHANTABILITY OR FITNESS absolute discretion terminate this Agreement for reasons of non-
FOR.4 PARTICULAR PURPOSE,COMPLIANCE OF THE appropriation immediately upon written notice to Coca-Cola
EQUIPMENT WITH ANY APPLICABLE without causing default or breach.
GOVERNMENTAL REQUIREMENTS OR REGULATIONS, 19. GOVERNING 16W AND VENUE:This Agreement shall
OR ANY OTHER WARRANTIES RELATING TO THE be governed by the laws of the State of Colorado. Venue for any
DESIGN, CONDITION, QUALITY, CAPACITY, action arising under this Agreement or for the enforcement of this
MATERIAL,OR WORKMANSHIP OF THE EQUIPMENT Agreement shall be in a state court with jurisdiction located in
OR ITS PERFORMANCE,OR ANY WARRANTY AGAINST Pueblo County,Colorado.
INTERFERENCE OR INFRINGEMENT, OR ANY
WARRANTY WITH RESPECT TO PATENT RIGHTS, IF
ANY,PERTAINING TO THE EQUIPMENT.COCA-COLA IN WITNESS WHEREOF, the parties have caused this
SHALL NOT BE LIABLE TO CUSTOMER FOR ANY Agreement to be executed.
CLAIMS BASED UPON OR ARISING OUT OF INJURY TO
PERSON OR PROPERTY IN ANY WAY RELATING TO `
THE INSTALLATION, USE, OR OPERATION OF THE 0 PrK4 d''4
EQUIPMENT,EXCEPT ARISING SOLELY OUT OF COCA- Cu tomer Signature
COLA'S GROSS NEGLIGENCE.IN NO INSTANCE SHALL
COCA-COLA BE RESPONSIBLE FOR ANY LOSS OF
PROFITS, ANY DIRECT, INCIDENTAL, OR 12.66(, t7eddz( f\/I: �[.CdC IGS
CONSEQUENTIAL LOSSES OR DAMAGES OF ANY Printed Name of Customer Rttpresentative
NATURE WHATSOEVER, RESULTING FROM THE
DELIVERY, INSTALLATION, MAINTENANCE, A
/ /
OPERATIONS,SERVICE.OR USE OF ANY EQUIPMENT Dated: 5 3
OR OTHERWISE.
U. NO ASSIGNMENT: Customer may not assign this
Agreement without the prior written consent of Coca-Cola,which 4 /
may be withheld for any reason. Swire Co" -C USA USA gnature
14. EARLY TERMINATION OF AGREEMENT: in the event /
the Agreement is terminated for any reason prior to the end of the
Term,Customer agrees to promptly return the Equipment and shall Dated:
not receive any further consideration provided pursuant to Section
4 of'this Agreement following the date of termination,
3
APPENDIX"A"
Customer will be charged destination bottle/cart pricing and will
otherwise be charged Coca-Cola's standard wholesale prices for
similarly situated customers.All pricing terms are subject to yearly
price increases. Additionally,in the event Coca-Cola is subject to
extraordinary increases :n cost of fuel, materials, and other
products necessary for the manufacture and distribution of the
Products.Coca-Cola may increase any pricing terms to reflect the
increase in costs.
4