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Backup Documents 11/10/2009 Item #16D 5 16D5 MEMORANDUM Date: April 9, 2010 To: Lyn Wood, Contract Specialist Purchasing Department From: Ann Jennejohn, Deputy Clerk Minutes and Records Department Re: Contract #09-5331 "Beverage Products, Equipment and Services" Contractor: Bottling Group, LLC d/b/a The Pepsi Bottling Group, Inc. Attached, please find an original contract document, as referenced above (Item #16D5) approved by the Board of County Commissioners November 10, 2009. The Minutes and Records Department will hold the second original contract in the Board's Official Records. If you have any questions, please contact me at 252-8406. Thank you. Attachment ITEM NO.: ~ bLJ~~ \\Q,\ 1605 \iQAT~:I: '1hf:EIVED: . ,..1,; " ., T(;" 'i'V " /1 :'! "I.:! FILE NO.: From: Lyn M. Wood, C.P.M., Contract Specialist Purchasing Department, Extension 2667 (4- o (;"'>;;: :w C L"~ , ~ \ 1'" fL,/ l/ ~ l~ \9l '(: .1J' . ~. ( ~~ . 060" IJ ,/~ /J y/t ()f' ( ~1~lID ROUTED TO: DO NOT WRITE ABOVE THIS LINE REQUEST FOR LEGAL SERVICES Date: March 30, 2010 To: Office of the County Attorney Scott Teach Re: Contract: #09-5331 "Beverage Products, Equipment and Services" Contractor: Bottling Group, LLC d/b/a The Pepsi Bottling Group, Inc. BACKGROUND OF REQUEST: j This Contract was approved by the BCC on November 10, 2009, Agenda Item 16.0.5 " This item has been previously submitted; Ite 09-PRC-01421 'V ACTION REQUESTED: Contract review and approval. OTHER COMMENTS: Please forward to BCC for signature after approval. If there are any questions concerning the document, please contact me. Purchasing would appreciate notification when the documents exit your office Thank you. v ~ 6..\",,\() C: Gregory Cartotto, Parks & Rec I )Di?t~=-D~ I '~J I CHECKLIST FOR REVIEWING CONTRACTS lex EfttityNal71e':~~r~ (;-)~Uifr-/~LLC Entity name correct on contract') 0 iLYes/ Entity regIstered wIth FL Sec, of State? ~ RLSII No No 16D5 Insurance Insurance Certificate attached? n'L';,Yes No Insured registered in Florida?_vJes No Contract # &lor Project referenced 011 Certificate? ----Z"!'y No Certificate Holder name COrrect (BCC)? =b..::.ns ~ No Commercial General Liability \ I:z+ General Aggregate Required $ ProVided $ 5 rY\ I \[ Exp. Date ~--Lf '2.. I 1 ProductsiCompVOp Required $____. Provided $ S \'Y\.L'\l Exp. Date~. -- S.,a,..yy"') 9 Personal & Advert Required $ . , ProVided $ ~~ l \ Exp Date ~ t' . . ~ Each Occurrence Required $,_\ ("\ \ \ \ ProVided $ s.V'\' 1 ( Exp. Date FirelProp Damage Required $ _~'-_ ProvIded $ ~-U Exp Date _ _ Automobile Liability " Bodily Inj & Prop Required $. \ 1"', I \ \ ProVided $ ":':> fY\' \ Exp Date~.L I .Workers Compensatio~ LIl1,~t5 _ Each a,ccldent ReqUIred $-"#,,,,-,-.J. __ P"rovlded $~ 51Yl\ \l Exp Date ~ Disease Aggregate Required $ ,J ProVIded $_" ,. Exp Date ~ I J I Disease Each Empl Required $_. Provided $__~-'- Exp Date __ Umbrella Liability ,,,('. ~ ('me\O'ff~ l 'C\..D, I, {..-u Each Occurrence Provided $ ___~_ Exp Date _._~._ Aggregate Provided $ Exp Date __ Does UmbreIla sufficiently cover any underinsured portion? Yes No Professional Liability Each Occurrence Required $ Provided $ ~___ Exp. Date Per Aggregate Required $ Provided $__ Exp. Date _ __ _ Other Insurance ... r~- ~ Each Occur Type: e'it'p's~ pRequired ~.~_ Provided $S~~\ \ l Exp Date _ I \ I co o'i i(Q ( e(Xil County required to be named as additional insured? _~ __No County named as additional insured? es No Indemnification Does indenmification meet County standards? Is County indemnifying other party? ~ Yes Performance Bond Bond requirement referenced in contract? If attached, expiration date ofbond Does dollar amount match contract? Agent registered in Florida? Signature Blocks Correct executor name in signature block? Correct title of executor? Executor authorized to sign for entity? Proper number of witnesses/notary? Authorization for executor to sign, if necessary: ';-"Uj(J, rz Chairman's signature block? '.:/ Clerk's attestation signature block? County Attorney's signature block? ~Yes --6.4Yes /Xes ~Yes o&c{~~ ~ ,/' dYes Attachments Are all required attachments included? No J,~ Yes No Yes Yes No ~No No No _No No __No ~No No NO~ Reviewer Initials: Date: ----- 04-CO..o..-01030/222 16D 5 MEMORANDUM TO: FROM: Ray Carter Risk Management Department Lyn M. Wood, C.P.M., Contract Specialist ~ Purchasing Department I~~ March 30, 2010 DATE: RE: Review Insurance for Contract: #09-5331 "Beverage Products, Equipment and Services" Contractor: Bottling Group, LLC d/b/a The Pepsi Bottling Group, Inc. This Contract was approved by the BCC on November 10, 2009, Agenda Item 16.0.5 Please review the Insurance Certificates for the above referenced contract. If everything is acceptable, please forward to the County Attorney for further review and approval. Also, will you advise me when it has been forwarded. Thank you. If you have any questions, please contact me at extension 2667. dod/LMW DATE RECEIVED MAR 3 1 2010 RISK ~ ; (~#k IklJt?r'~j/ C: Gregory Cartotto, Parks & Rec _....L........_._ www.sunbiz.org - Department of State 5 ,. Page 1 of 2 16 D ." Home Contact Us E-Filing Services Document Searches Forms Help previous on List NextQlJj,,,i~t R~turn To List Even!~ No Name History IEntity Name Search Submit I Detail by Entity Name Foreign Limited Liability Company BOTTLING GROUP. LLC Filing Information Document Number M99000000815 FEI/EIN Number 134042452 Date Filed 03/11/1999 State DE Status ACTIVE Last Event REINSTATEMENT Event Date Filed 10/25/2000 Event Effective Date NONE Principal Address 1 PEPSI WAY SOMERS NY 10589 Changed 02/17/2003 Mailing Address 1 PEPSI WAY SOMERS NY 10589 Changed 02/17/2003 Registered Agent Name & Address C T CORPORATION SYSTEM 1200 SOUTH PINE ISLAND ROAD PLANTATION FL 33324 US Name Changed: 03/10/2010 Address Changed: 03/10/2010 Manager/Member Detail Name & Address Title MGR D'ALESSANDRO, NICHOLAS J 1 PEPSI WAY SOMERS NY 10589 Title MGR YAWMAN, DAVID 1 PEPSI WAY SOMERS NY 10589 http://www.sunbiz.org/scripts/cordct.exe?action=DETF[[o&inq doc number=M99000000... 3/30/2010 www.sunbiz.org - Department of State Title MGR RAPP, STEVEN 1 PEPSI WAY SOMERS NY 10589 Title MGR FICHERA. MICHAEL 1 PEPSI WAY SOMERS NY 10589 Title MGR SMITH, KENNETH 1 PEPSI WAY SOMERS NY 10589 Title MGR GALLAGHER. MARIE T 1 PEPSI WAY SOMERS NY 10589 Annual Reports Report Year Filed Date 2007 04/20/2007 2008 04/29/2008 2009 04/29/2009 Document Images 03/10/2010 -- Reg. Agent Change (W2914009c:::~Ai'iNI,JAL REPORT 04/29/2008 -- ANNUAL REPORT Q4I2Q12QQ1,-AN~UAL~REP_ORT 04/28/2006 -: ANNUAL REPORT 05/03/2005 -- ANNUAL REPORT 05/04/2004 "ANNUAL REPORT 02/17/2003c_,L1MITED LIABILITY CORPORATION 05/08/2002-: ANNUAL REPORT 04/27/2001 -- ANNUAL REPORT 10/25/2000 =-REINST ATEMENT 06/02/1999 =-Foreign L,mited Page 2 of2 1605 View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image inPDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format II Note: This is not official record. See documents if question or ~ frevious on List Next on List Return To List EY~nt~ No Name History I Entity Name Search Submit I I Horne I Contact LIS I Document Searciles I E.Filillg Services I Forms I Help I Copyright and Privacy Policies Copyright CD 2007 State of florida, Deportment of State. http://www.sunbiz.org/scripts/cordet.exe'?action=D ETF[L&in~ doc _numbcr= M99000000... 3/30/2010 1605 Power of Attorney Pursuant to Section 4.6 of the Amended and Restated limited liability Company Agreement of Bottling Group, LLC, a Delaware limited liability company. with its principal office at 1 Pepsi Way. Somers. New York. 10589 (the "Company"). the undersigned, a Managing Director of the Company. hereby gives power of attorney to Neil Fowler to execute and deliver on his behalf, in the name of the Company, all such contracts. certificates and documents. and to take such other actions as such attorney in his discretion and with advice of counsel from the Company as he may deem necessary or appropriate in connection with the Company's Beverage. Products. Equipment and Services Agreement with Collier County, This power of attorney will expire on SeptembEfr 19, 2010, Dated as of the 3 ; .,J. ! I 0 I Bottling Group LLC By: . ? t/ I / .h~f/~_,. Da'Vid Yawmari Managing Director STATE OF NEW YORK COUNTY OF WESTCHESTER On thiS~, day of;1 ,/ " 2010, before me personally came David Yawman to me known. who being duly sworn. did depose and say that he is a Managing Director of Bottling Group, LLC. the Company described in the forego,ng instrument. and that he is empowered to sign. and has signed, this power of attorney on behalf of sa,d Company / ,Ie Notary Public ( 'f7i POA-LLe3 IIRENOA SOUTH N*Y PubID, .... fllNew Yorll: No. Of$^4l2l1074 CMIIIed In ~ County CommIuIon Expm Nowlmber 30. 2010 1605 A G R E E MEN T 09-5331 for Beverage Products, Equipment and Services THIS AGREEMENT, made and entered into on this 16th day of March 2010, by and between Bottling Group, LLC d/b/ a Pepsi Beverages Company (successor in interest to The Pepsi Bottling Group), authorized to do business in the State of Florida, whose business address is 1 Pepsi Way, Somers, New York 10589, hereinafter called the "Contractor" and Collier County, a political subdivision of the State of Florida, Collier County, Naples, hereinafter called the "County": WIT N E SSE T H: DEFINITIONS As used in this Agreement, the following capitalized terms shall have the respective meanings assigned thereto below: "Beverage Products" shall mean Postmix Products and B & C Products. "B & C Products" shall mean all carbonated and noncarbonated, nonalcoholic beverages, including, but not limited to, carbonated soft drinks, ready-to-drink teas, ready-to-drink coffees, isotonics (sports drinks), juices and juice drinks, energy drinks and water as listed in Attachment C which may be amended by Contractor from time to time, upon agreement by the County. "Postmix Products" shall mean carbonated soft drinks, teas, energy drinks and juice products as listed in Attachment B which may be amended by Contractor from time to time. "Year" shall mean each 12-month period during the Term commencing on the first day of the Term or an anniversary thereof. 1. COMMENCEMENT. The Agreement shall be for a one (1) Year period, commencing on November 10, 2009 and ending on November 9, 2010. The County may, at its discretion and with the consent of the Contractor, renew the Agreement under all of the terms and conditions contained in this Agreement for three (3) additional one (1) year periods. The County shall give the Contractor written notice of the County's intention to extend the Agreement term not less than ten (10) days prior to the end of the Agreement term then in effect. Page I of 13 160,5 2. STATEMENT OF WORK. During the Term, the Contractor shall provide the Beverage Products, equipment and services. Contractor shall provide the Beverage Products , equipment and services in accordance with the terms and conditions of Bid #09-5331 (the "Bid") and the Contractor's proposal including Contractor's comments to the Bid referred to herein and made an integral part of this Agreement. During the Term the County shall purchase Postmix Products for use in preparing fountain beverage products (the "Fountain Products") and B & C Products from Contractor to be sold at the County locations listed on Exhibit A attached hereto (the "Locations"). Additionally, County shall give Contractor the exclusive right to operate full service vending machines at the Locations ("Vending Machines") in quantities reserved to the County's discretion. In connection with the Locations, Contractor will work with County to identify optimal locations for such Vending Machines and Contractor will be responsible for collecting, for its own account, all cash monies from the vending machines and for all related accounting for all cash monies collected therefrom. This Agreement contains the entire understanding between the parties and any modifications to this Agreement shall be mutually agreed upon in writing by the Contractor and the County project manager or his designee, in compliance with the County Purchasing Policy and Administrative Procedures in effect at the time such services are authorized. 3. PEFORMANCE This Agreement, including all of Contractor's support to the County as described below, is contingent upon the County complying with all of the following performance criteria: (1) The Beverage Products 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 listed Locations by any method or through any medium whatsoever (including without limitation print, broadcast, direct mail, coupons, handbills, displays and signage), whether public or private. If mutually agreed between the parties, Vendor shall be permitted to place Vending Machines at County properties outside the Locations during the Term. (2) The County shall have brand identification for each Fountain Product served on all menuboards and postmix dispensing valves at each of the Locations throughout the Term. (3) The County shall only use the Postmix 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 Postmix Products either to nonaffiliated outlets or to consumers in any form other than the Fountain Products. 4. COMPENSATION. The County shall pay the Contractor for the performance of this Agreement the aggregate of the units actually ordered and furnished at the unit price as Page 2 of 13 1605 determined by Contractor from time to time, the current pricing for the Postmix Products is set forth on Exhibit B and the current pricing for the B & C Products is set forth on Exhibit C, attached hereto and incorporated herein by reference. Pricing is inclusive of all rebates, credits and carbon dioxide containers. The County shall purchase all C02 requirements from Contractor at the prices established by Contractor from time to time. Any price increase exceeding more than four percent (4%) in any Year during the Term shall require the prior written approval of the County. Upon approval by Contractor and on a case by case basis, any County agency may purchase the Beverage Products and obtain services under this Agreement, provided sufficient funds are included in their budget(s). Payment will be made upon receipt of a proper invoice and upon approval by the Project Manager or his designee, and in compliance with Chapter 218, Fla. Stats., otherwise known as the "Local Government Prompt Payment Act". 5. CONTRACTOR'S COMMITMENT. In consideration of the exclusive rights granted to Contractor by County over the Term of this Agreement at the listed Locations, and provided County is not in breach of this Agreement, Contractor shall provide County with the following: (1) An Annual sponsorship fee in the amount of three thousand five hundred dollars ($3,500.00) per year, payable to the County within thirty (30) days of the signing of this Agreement by both parties (the" Annual Sponsorship Fee"). The Annual Sponsorship Fee is earned throughout the Year in which it is paid. In the event Contractor terminates this Agreement due to the County's failure to cure a breach hereof, the unearned Annual Sponsorship Fee will be repaid to Contractor pursuant to the terms of Section 12 herein. (2) Commission, as a percentage of the actual cash ("cash in bag" or "CIB") collected by Contractor from the Vending Machines placed at the Locations, less any applicable fees or deposits ("Commissions"). Such Commissions shall be at the rate(s) set forth below (the "Commission Rate") and shall be calculated as follows: (CIB - applicable fees/deposits) · Commission Rate = Commission due (1) Commission Payment. Commissions shall be remitted by Contractor to the County within thirty (30) days of the end of each 4-week accounting period Page 3 of13 16D5 established by Contractor. Contractor shall make all pertinent revenue and sales records respecting the Vending Machines available to County. County agrees that it is responsible for reviewing such records and that any claim or dispute relating to the Commissions must be brought by County in writing within one year of the date such Commissions payment is due. County further acknowledges and agrees that it shall not receive any commission payment from Contractor if Commissions fail to reach a certain threshold amount per period or quarter. The current threshold is fifty dollars ($50.00) per period or quarter. The applicable threshold amounts vary based on the payment period and will be established and communicated pursuant to Contractor's polices and procedures related to its Full Service Vending business, as may be revised by Contractor from time to time. Contractor shall make checks payable to: Collier County Board of County Commissioners Checks should be mailed to: Ilonka Washburn Park Operations Manager North Collier Regional Park 15000 Livingston Road Naples, Florida 34109-3808 (2) Change to Commission Rate. County acknowledges and agrees that Contractor established the Commission Rate based on any applicable sales tax associated with the sale of the Beverage Products through the Vending Machines as of the commencement date of this Agreement. If, during the Term, sales taxes should increase by more than five percent (5%), then Contractor shall have the right to automatically reduce the Commission Rate by the same percentage amount. 6. EQUIPMENT. Contractor will loan the Locations, at no charge, appropriate equipment for dispensing the Beverage Products during the Term ("Equipment"). County agrees that the Equipment shall be exclusively used to display and merchandise the Beverage Products, and the County shall not use the Equipment to display, stock, advertise, sell or maintain any other products or beverages (including on the exterior of the Equipment). Contractor will also provide, at no charge to the County, service to the Equipment. Title to such Equipment will remain vested in Contractor or its affiliate and all such Equipment will be returned to Contractor upon expiration or earlier termination of this Agreement. 7. SALES TAX. County acknowledges and agrees that neither Contractor nor its affiliates shall be responsible for any taxes payable, fees or other tax liability incurred by the County in connection with any fees payable by Contractor under this Agreement. In addition, Contractor shall be responsible only for the payment of taxes Page 4 of 13 16D5 on the sales of products through Vending Machines. Contractor shall not be assessed common area maintenance fees, taxes or other charges based on its occupation of the space allocated to its Equipment (defined below). 8. NOTICES. All notices from the County to the Contractor shall be deemed duly served if mailed, faxed or emailed to the Contractor at the following Address: The Pepsi Bottling Group 4451 - 34th Street North St. Petersburg, Florida 33714 Attention: Neil Fowler, New Business Manager Telephone: 727-369-7931 Facsimile: 727-527-8124 Email: neil.fowler@pepsi.com All Notices from the Contractor to the County shall be deemed duly served if mailed, faxed or emailed to the County to: Collier County Government Center Purchasing Department - Purchasing Building 3301 Tamiami Trail, East Naples, Florida 34112 Attention: Steve Carnell, Purchasing/GS Director Telephone: 239-252-8371 Facsimile: 239-252-6584 Email: SteveCarnell@colliergov.net The Contractor and the County may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. 9. NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a partnership between the County and the Contractor or to constitute the Contractor as an agent of the County. 10. PERMITS: LICENSES: TAXES. In compliance with Section 218.80, FS., all permits necessary for the prosecution of the Work shall be obtained by the Contractor. Payment for all such permits issued by the County shall be processed internally by the County. All non-County permits necessary for the prosecution of the Work shall be procured and paid for by the Contractor. The Contractor shall also be solely responsible for payment of any and all taxes levied on the Contractor. In addition, the Contractor shall comply with all rules, regulations and laws of Collier County, the State of Florida, or the U. S. Government now in force or hereafter adopted. The Contractor agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by the Contractor. Page 5 of 13 1605 11. NO IMPROPER USE. The Contractor will not use, nor suffer or permit any person to use in any manner whatsoever, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Contractor or if the County or its authorized representative shall deem any conduct on the part of the Contractor to be objectionable or improper, the County shall have the right to suspend the contract of the Contractor. Should the Contractor fail to correct any such violation, conduct, or practice to the satisfaction of the County within twenty four (24) hours after receiving notice of such violation, conduct, or practice, such suspension to continue until the violation is cured. The Contractor further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the County. 12. TERMINATION. Termination. Either party may terminate this Agreement if the other commits a material breach of this Agreement; provided, however, that the terminating party has given the other party written notice of the breach and the other party has failed to remedy or cure the breach within thirty (30) days of such notice. (1) Remedies. If either party terminates this Agreement as a result of the other parties' breach, then in addition to any other remedies, including but not limited to the recovery of lost profits, to which Contractor may be entitled by reason of such breach, the breaching party shall immediately make the following payments: they will reimburse any fees or sums paid in advanced or paid to the non-breaching party but not yet earned. Such payment shall be remitted by the breaching party on a pro rata basis based upon the remaining number of months left in the Year of termination. With regard to the Annual Sponsorship Fee, the amount of such reimbursement by the County shall be determined by multiplying Annual Sponsorship Fee by a fraction, the numerator of which is the number of months remaining in the year in which the Agreement is terminated at the time such termination occurs and the denominator of which is 12; and (2) County will surrender to Contractor all Equipment installed in the Locations, whether leased, loaned or otherwise made available by Contractor; and 13. NO DISCRIMINATION. The Contractor agrees that there shall be no discrimination as to race, sex, color, creed or national origin. 14. INSURANCE. Each party hereto maintains and agrees to maintain, at all times during the Term, a comprehensive program of risk retention and insurance with such insurance carriers and in such amounts of insurance coverage reasonably acceptable to the other party. Each party agrees to name the other, and each of its Affiliates, and their respective officers, directors, employees, agents, representatives and successors and assigns, as additional insureds on such insurance during the Term. Page 6 of 13 16D 5 The Contractor shall provide insurance as follows: A. Commercial General Liability: Coverage shall have minimum limits of $1,000,000 Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent Contractors; Products and Completed Operations and Contractual Liability. B. Business Auto Liability: Coverage shall have minimum limits of $1,000,000 Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include: Owned and leased Vehicles. C. Workers' Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. The coverage must include Employers' Liability with a minimum limit of $500,000 for each accident. Special Requirements: Collier County Government shall be listed as the Certificate Holder and included as an Additional Insured on the Comprehensive General Liability Policy. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Contractor during the duration of this Agreement. Renewal certificates shall be sent to the County thirty (30) days prior to any expiration date. There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Contractor shall insure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. 15. INDEMNIFICATION. Each party shall be liable for its own actions and negligence and, to the extent permitted by law, County shall indemnify, defend and hold harmless Contractor against any actions, claims or damages arising out of the County's negligence in connection with this Agreement, and Contractor shall indemnify, defend and hold harmless County against any actions, claims, or damages arising out of Contractors negligence in connection with this Agreement. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28, nor shall the same be construed to constitute agreement by either party to indemnify the other party for such other party's negligent, willful or intentional acts or omissions. 16. AGREEMENT ADMINISTRATION. This Agreement shall be administered on behalf of the County by the Parks and Recreation Department. Page 7 of 13 1605 17. CONFLICT OF INTEREST: Contractor represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. Contractor further represents that no persons having any such interest shall be employed to perform those services. 18. COMPONENT PARTS OF THIS CONTRACT. This Agreement consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Exhibit A, Contractor's Proposal and comments to the Bid, Insurance Certificate, Bid #09-5331 Specifications/Scope of Services and Addenda. 19. SUBJECT TO APPROPRIATION. It is further understood and agreed by and between the parties herein that this Agreement is subject to appropriation by the Board of County Commissioners. If County elects to terminate the Agreement due to the unavailability or non-appropriation of funds, then the County must provide Contractor with at least sixty (60) days prior written notice of such termination and the County must reimburse Contractor all unearned fees paid to County by Contractor in accordance with Section 12 herein. If applicable, all outstanding payments due to Contractor shall be paid by the County. 20. PROHIBITION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part III, Florida Statutes, Collier County Ethics Ordinance No. 2004-05, and County Administrative Procedure 5311. Violation of this provision may result in one or more of the following consequences: a. Prohibition by the individual, firm, and/ or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and/ or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and/ or quotes; and, c. immediate termination of any contract held by the individual and/ or firm for cause. 21. IMMIGRATION LAW COMPLIANCE. By executing and entering into this Agreement, the Contractor is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.s.e. 1324, et seq. and regulations relating thereto, as either may be amended. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this Agreement. 22. OFFER EXTENDED TO OTHER GOVERNMENTAL ENTITIES. Collier County encourages and agrees to the successful proposer extending the pricing, terms and conditions of this solicitation or resultant contract to other governmental entities at the discretion of the successful proposer. Such offer will be considered on a case by case basis and must be approved by Contractor. Page 8 of 13 16D5 23. AGREEMENT TERMS. If any portion of this Agreement is held to be void, invalid, or otherwise unenforceable, in whole or in part, the remaining portion of this Agreement shall remain in effect. 24. ADDITIONAL ITEMS/SERVICES. Additional items and/ or services may be added to this contract upon satisfactory negotiation of price by the County and Contactor. 25. DISPUTE RESOLUTION. Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of Contractor with full decision-making authority and by County's staff person who would make the presentation of any settlement reached during negotiations to County for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of Contractor with full decision-making authority and by County's staff person who would make the presentation of any settlement reached at mediation to County's board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 26. ASSIGNMENT. To the extent permitted by law, this Agreement shall be binding upon and inure to the benefit of Contractor and the County and its respective successors and permitted assigns. Neither party may subcontract or assign its rights or obligations under this Agreement to any other entity or person without the express written consent of the other, which consent may be withheld at its sole discretion. Notwithstanding the foregoing, Contractor shall be entitled to assign its rights and obligations under this Agreement to PepsiCo, Inc. or its subsidiary or affiliate. No waiver by any party of any default or non-performance shall be deemed a waiver of any subsequent default or non- performance. Page 9 of 13 16D5 IN WITNESS WHEREOF, the Contractor and the County, have each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date and year first above written. ATTEST;,:' r '. Dwight'E. B{ock,tl~k of Courts " da:te~~~ 0.( ",' " .:,:'J\,'>" ,'"" . =~!':~,...... ~ BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: ~W. ~ Fred W. Coyle, Chairman Bottling Group, LLC d/b/a Pepsi Beverages Company Contractor ~~ ML First Witness By: ~ I Signature klC\.t;o" S"..dk t:rype/print witness namet (j) \tr~:; . a,.ll^- Sec nd)Witness C{hT~ I1JTt,'(U tType/p 'nt witness namet Neil Fowler New Business Manager Typed signature and title Approved as to form and legal ,fficiency: Ilem# ~5 ~~:da ..LEID:: ~d~D ~ Page 10 of 13 1605 EXHIBIT A Locations North County Regional Park, 15000 Livingston Road, Naples, Florida 34109-3808 Page 11 of13 5G Postmix Pepsi Brands 5G Postmix Dr Pepper 5G Postmix Lipton 5G Postmix Tropicana EXHIBT B Postrnix Products and Prices $11.40 $12.40 $12.40 $12.40 Pagel20f13 16D5 CSD 20 oz. Bottles (24) pk: Tropicana 20 oz. Bottles (24) pk: Gatorade 20 oz. Bottles (24) pk: Aquafina 20 oz. Bottles (24) pk: CSD l2oz. Can Aquafina l6.90oz. Bottles (24) pk: EXHIBT C B & C Products and Prices Page 13 of 13 $16.00 $16.00 $16.00 $7.50 $7.00 $5.00 1685 ~ 1605 ACORD'" CERTIFICATE OF LIABILITY INSURANC~2oI1 I DATE (MM/DDIYVYY) ~ 3/18/20lO PRODUCER LOCKTON COMPANIES, LLC-N DALLAS THtS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 717 N. HARWOOD, LB#27 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR DALLAS TX 75201 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 214-969-6700 INSURERS AFFORDING COVERAGE NAIC# INSURED Pepsi-Cola Metropolitan Bottling Company, Inc. INSURER A: ACE American Insurance Company 22667 1326168 PepsiCo, Inc. INSURER B: Indemnity Insurance Co of North America 43575 One Pepsi Way INSURER C: Somers NY 10589 INSURER 0 , INSURER E COVERAGES PEPSOO] EI THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE; A CONTRACT 8ETWEEN THE ISSUING I"'SURER(S:, AUTHORIZED REPRESENTATIVE OR PRODUCER AND THE CERTIFICATE HOLDER. THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR f'.l?D' POLICY NUMBER &2fJ~r.:t6g~~~ b~!rlfrM'if,~~yN LIMITS LTR NSR TYPE OF INSURANCE GENERAL. LIABILITY EACH OCCURRENCE , 5 000 000 A ~ COMMERCIAL GENERAL LIABILITY HOO G24940512 2/26/2010 1/Jl2011 ~~~~~~J9E~~~~?ence) $ 2,000,000 f-- P CLAIMS MADE 0 OCCUR MED EXP (Anyone person) $ 10,000 "- PERSONAL & ADV INJURY $ 5,000,000 - GENERAL AGGREGATE $ 5,000,000 ~N'L AGGREnE LIMIT APrf PER: PRODUCTS - COMP/OP AGG $ 5,000,000 POLICY f~8,= LOC ~UTOMOBIL.E LIABILITY COMBINED SINGLE LIMIT $ 5,000,000 A X ANY AUTO ISA H0858865A 2/26/2010 1/1/2011 (Eaaccidenl) A ALL OWNED AUTOS ISA H08588661 2/26/20 I 0 ]/]/2011 BODILY INJURY (Per parson) $ XXXXXXX SCHEDULED AUTOS HIRED AUTOS BODILY INJURY (Peracddanl) $ XXXXXXX t- NON-OWNED AUTOS '- PROPERTY DAMAGE $ XXXXXXX (Par accident) GARAGE lIABILITY AUTO ONLY - EA ACCIDENT $ XXXXXXX q ANY AUTO 1'\OT APPLICABLE OTHER THAN EAACC $ XXXXXXX AUTO ONLY. AGG $ XXXXXXX 3CESS I UMBRELLA LIABILITY EACH OCCURRENCE $ XXXXXXX OCCUR 0 CLAIMS MADE NOT APPLICABLE AGGREGATE $ XXXXXXX $ XXXXXXX o UMBRELLA R DEDUCTIBLE FORM $ XXXXXXX RETENTION $ $ XXXXXXX WORKERS COMPENSATION X I WC STATU- I 10TH. B AND EMPLOYERS' LIABILITY WLR C46]32622 (AOS) 2/26/2010 1/1/2011 TORY LIMITS ER Y'N A ANY PROPRIETOR/PARTNER/EXECUTIVE ~ WLRC46]32634 (AZ& CA) 2/26/2010 1/1/20] 1 E.L. EACH ACCIDENT $ 5,000,000 OFFICER/MEMBER EXCLUDED? SCF C46] 32646 (WI) 2/26/20 I 0 1/1/201 ] A (Mandatory in NH) EL DISEASE - EA EMPLOYEE $ 5,000,000 If yes, describe under EL DISEASE - POLICY LIMIT $ 5,000,000 SPECIAL PROVISIONS below OTHER A ExccssWorkcrsCompcnsalion WCU C46132658 (OH,WA _ F-L) 2/26120]0 1/1/20] 1 WC Statutory Limits A WCU C4613266A WH-PC Metro~ 2/26/2010 1/112011 S5,OOO,OOO each accident A WCU C46132671 ( V-PC Metro 2126/20]0 1/112011 S5,OOO,OOO each cc fordiscasc DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Policies listed above are effective 02/26/2010 4:01 PM EST. Collier County Government is included as Additional Insured where required under contract or agreement. () 9- _~ .;: 3, CERTIFICATE HOLDER 10828663 CANCELLATION Forquestlolls regardlllg thlscerfifioate, cOlltact the number listed I n U",'Producor' section above amt specify fhe client code.PEPB001 . SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELL.ED BEfORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHAL.L IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED R~P~~.iIV~_ --:;:::::?_.-....-- -. ~~~ k _~~.c::c:-r-~"":'" @1988-2009ACORDCORPORATION. M rights reserved. The ACORD name and logo are registered marks of ACORD Collit:r County Government Purchasing Department Altn: Lyn Wood 330 I Tamiami Trail E Naples FL 341 12 ACORD 25 (2009/01) ,...._...."-_.,,,..._._--~--,-