Agenda 04/08/2008 Item #16D18
Agenda Item No. 16D18
April 8, 2008
Page 1 of 12
EXECUTIVE SUMMARY
Recommendation to waive the formal bid process and authorize an
agreement with the Pepsi Cola Bottling Company of Naples for a period of
18 months for beverage service for North Collier Regional Park.
Obiective: To provide resale beverage service at North Collier Regional Park.
Considerations: North Collier Regional Park offers beverages for sale at three
concession locations: Sun-N-Fun Lagoon, the Soccer Complex, and the Softball
Complex. Staff has negotiated with Pepsi Cola Bottling Company of Naples and the
previous contract was awarded and approved by the Board of County Commissioners on
May 23, 2006. Staff recommends continuation of the agreement with Pepsi under the
same terms and agreement.
As written in the 2006 Pepsi agreement, the 2008 Pepsi agreement also requests the Right
of First Refusal to match any offer made to the County by a third party. Staff is
also requesting that the Board of County Commissioners agree to the Right of First
Refusal as it demonstrates Pepsi's continued conm1itment to providing the highest quality
beverage service, including best pricing and overall value to the North Collier Regional
Park,
As a result of Pepsi's continued commitment to provide quality service to Collier County,
Parks and Recreation recommends that the Board of County Commissioners waive the
formal bid process. Since 2006, Pepsi has provided Collier County with the most
competitive prices, and it is in the best interest of the County to continue their business
relationship with Pepsi.
Fiscal Impact: Estimated expenditure over the life of the l8-month contract is $45,000.
Estimated gross revenue associated with that expenditure is $125,000. Associated
expenditures and revenues are budgeted within the North Collier Regional Park fund
center within the Parks and Recreation budget for FY 08.
Growth ManaQement Impact: No Grmvth Management Impact is associated with
this action.
Recommendation: That the Board of County Commissioners waives the formal bid
process and authorizes the chairman to sign and continue an agreement with the Pepsi
Cola Bottling Company of Naples for a period of 18 months for beverage service for
North Collier Regional Park.
Prepared by: Gregory Cartotto, Senior Program Leader, Concessions
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Agenda Item No. 16D18
April 8, 2008
Page 2 of 12
FOUNTAIN AND BOTTLE/CAN SALES AGREEMENT
This sets forth the agreement ("Agreement") between Bottling Group, LLC, d/b/a The Pepsi
Bottling Group, a Delaware limited liability company with an office located at 1225 Industrial
Boulevard, Naples, Florida 34104 ("PBG") and Collier Board of County Commissioners with
its principal place of business at 15000 Livingston Road, Naples, Florida 34109 (the
"Customer") relating to the purchase by the Customer from PBG of Postmix Products (as
defined below) and B & C Products (as defined below). The support described below is in
lieu of any other discounts, allowances or rebates to which the Customer might otherwise be
entitled from time to time.
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 PBG from time to time.
"Cases" shall mean the number of cases of B & C Products purchased by the Customer from
PBG.
"Gallons" shall mean the number of gallons of the Postmix Products purchased by the
Customer from PBG.
"Postmix Products" shall mean carbonated soft drinks, teas, energy drinks and juice products
as listed in Attachment B which may be amended by PBG from time to time.
"Premises" shall mean that location known as Sun-N-Fun Lagoon and the entire grounds,
including but not limited to, the buildings, athletic fields and facilities, concession stands,
parking lots, food service outlets and vending areas.
"Year" shall mean each 12-month period during the Term commencing on the first day of the
Term or an anniversary thereof.
1. Term
The term of this Agreement shall be for a period of eighteen (18) months, commencing on
March 7, 2008 and expire upon September 6, 2009 when fully executed this Agreement will
constitute a binding obligation of both parties until expiration or termination.
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Agenda Item No. 16018
April 8, 2008
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2. Scope
During the Term, Customer shall purchase Postmix Products for use in preparing fountain
beverage products (the "Fountain Products") and B & C Products from PBG sold under the
trademarks of PepsiCo, Inc. or other third party licensor to be sold on the Premises,
Customer shall be responsible for stocking machines with the Beverage Products purchased
directly from PBG only. Customers shall further be responsible for collecting, for its own
account, all cash monies from the vending equipment and for all related accounting for all
cash monies collected therefrom.
3. Performance
This Agreement, including all of PBG's support to the Customer as described below, is
contingent upon the Customer 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 Premises by
any method or through any medium whatsoever (including without limitation print,
broadcast, direct mail, coupons, handbills, displays and signage), whether public or
private. In no event shall there be 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 Coca-Cola Company or any
affiliate thereof.
(2) The Customer shall have brand identification for each Fountain Product served
on all menuboards and postmix dispensing valves at the Premises throughout the
Term.
(3) The Customer 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 to either to nonaffiliated outlets or to consumers in any form other
than the Fountain Products.
(4) Customer agrees to permit PBG to display banners and signage containing
trademarks of the Products being sold at the Premises.
4. Consideration
In consideration of the exclusive rights granted to PBG by Customer over the Term of this
Agreement, PBG shall provide Customer with the following:
(1) Initial support funds in the amount of Three Thousand Three Hundred Dollars
($3,300.00), payable to the Customer within forty-five (45) days of the signing of this
Agreement by both parties (the "Initial Support Funds"). The Initial Support Funds are
earned by the Customer over the Term based on PBG's ability to make its Beverage
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Agenda Item No. 16D18
April 8, 2008
Page 4 of 12
Products, listed in Attachment Sand C, available for sale at the Premises during the
entire Term. lri the event PSG terminates this Agreement due to the Customer's
failure to cure a breach hereof, the unearned I nitial Support Funds will be repaid to
PSG pursuant to the terms of Section 7(b)(1) herein,
(2) Each Year throughout the Term, PSG will accrue rebates on behalf of the
Customer at the rate of $1.00 per Gallon purchased by the Customer and at the rate
per Case purchased by the Customer as listed on Attachment A (the "Rebates"). The
Rebates will be paid to the Customer within forty-five (45) days after the end of the
Term.
5. EQuipment
PSG will loan the Customer, at no charge, appropriate equipment for dispensing the
Severage Products during the Term ("Equipment"), Customer agrees that the Equipment
shall be exclusively used to display and merchandise the Severage Products, and the
Customer shall not use the Equipment to display, stock, advertise, sell or maintain any other
products or beverages (including on the exterior of the Equipment), PSG will also provide, at
no charge to the Customer, maintenance service to the Equipment. Title to such Equipment
will remain vested in PSG or its affiliate and all such Equipment will be returned to PSG upon
expiration or earlier termination of this Agreement Each Year during the Term or at PSG's
request, Customer shall provide PSG with a written Equipment verification list indicating the
asset number, Equipment type and location of the Equipment loaned to the Customer
pursuant to this Agreement Failure to provide such verification list to PSG shall be deemed
a material breach of this Agreement.
6. PricinQ
The Postmix Products, which are produced or sold by PSG, shall be purchased by the
Customer from PSG at the prices established by PSG from time to time, The current prices
are as set forth on Attachment S hereto.
The S & C Products, which are produced or sold by PSG, shall be purchased by the
Customer from PBG at the prices established by PBG from time to time. The current prices
are as set forth on Attachment C hereto.
Payments will be made in accordance with Chapter 218, Florida Statutes, otherwise known
as the Florida Prompt Payment Act
7. General Terms
(a) 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, Additionally, if PSG's exclusive rights to sell
anyone or more of the Beverage Products, are terminated, violated, prohibited or limited
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Agenda item No. 16018
April 8, 2008
Page 5 of 12
during the Term of this Agreement for any reason, including by way of final judicial opinion,
imposition or modification of any local, state or federal laws and/or regulations, whether or not
due to a cause beyond the reasonable control of Customer, PBG may either terminate the
Agreement, as provided herein, or reduce the funding provided in Section 4 herein, to an
amount equal to the then-current ongoing fees PBG would pay for the right to market, sell or
distribute the remaining Beverage Products,
(b) Remedies. If PBG terminates this Agreement as a result of Customer's breach
including Customer's failure to purchase and serve the Fountain Products or B & C Products
at the Premises throughout the Term, then in addition to any other remedies, including but
not limited to the recovery of lost profits, to which PBG may be entitled by reason of such
breach, the Customer shall immediately make the following payments to PBG:
(1) A payment reflecting reimbursement for all funding previously advanced by
PBG but not earned by the Customer pursuant to the terms of this Agreement. With
regard to the Initial Support Funds, the amount of such reimbursement shall be
determined by multiplying the Initial Support Funds by a fraction, the numerator of
which is the number of months remaining in the Term at the time such termination
occurs and the denominator of which is 36;
(2) At PBG's election, Customer shall either reimburse PBG for the current fair
market value of the Equipment (as reasonably determined by PBG, applying generally
accepted accounting standards) or surrender to PBG all Equipment installed in the at
the Premises, whether leased, loaned or otherwise made available by PBG; and
(3) A payment to PBG reflecting reimbursement for the cost of installation, service
and refurbishing of Equipment provided during the Term and the cost of removal of all
Equipment that has been installed at the Premises, if applicable.
(c) Expiration, Upon expiration of this Agreement, if Customer has not entered into a
further agreement with PBG for the purchase of Beverage Products, Customer shall, at
PBG's election, either reimburse PBG for the current fair market value of the Equipment (as
reasonably determined by PBG, applying generally accepted accounting standards) or
surrender to PBG all Equipment installed at the Premises, whether leased, loaned or
otherwise made available by PBG,
(d) Riqht of Offset. PBG reserves the right to withhold payments due hereunder as an
offset against amounts not paid by Customer for Postmix Products and B & C Products
ordered by and delivered to Customer.
(e) Customer Representation. Customer represents and warrants to PBG that they (i)
have the authority to enter into this Agreement on behalf of Sun-and-Fun Lagoon; and (ii) the
execution, delivery and performance of this Agreement by Customer will not violate any
agreements with, or rights of, third parties.
(f) Entire Aqreement. This Agreement contains the entire agreement between the parties
hereto regarding the subject matter hereof and supersedes all other agreements between the
parties, including prior funding commitments relating to the purchase of the Postmix Products
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Agenda Item No. 16D18
April 8, 2008
Page 6 of 12
and S & C Products by Customer. This Agreement may be amended or modified only by a
writing signed by each of the parties.
(g) Non-Disclosure. Except as may otherwise be required by law (e,g, F.S. 119, Florida
Sunshine Law) or legal process, neither party shall disclose to unrelated third parties the
terms and conditions of this Agreement without the consent of the other.
(h) Indemnification. Each party agrees to indemnify, defend and hold harmless the other,
its officers, board members, agents and employees from and against any and all fines, suits,
claims, demands, penalties, liabilities, costs or expenses, losses, settlements, judgments and
awards and actions of whatever kind or nature, including attorney's fees and costs (and
costs and fees on appeal), and damages arising from any negligent, willful or wrongful
misconduct, knowing misrepresentation or breach of this Agreement by such party, its
officers, board members, agents or employees. This paragraph shall not be construed in any
way to alter the State's waiver of sovereign immunity or extend the parties liability beyond the
limits established in Section 768.28, Florida Statutes.
(i) Governinq Law. This Agreement shall be governed by the laws of the State of Florida.
U) Riqht of First Refusal. Upon expiration or termination of this Agreement, Customer
hereby grants PSG the right of first refusal to match any offer made to Customer by any third
party with respect to the supply of beverage products to Customer.
(k) Price Discrepancy. Any price discrepancy claim must be submitted to PSG within 365
days of the date of the invoice in question. If the Customer makes a price discrepancy claim
within 90 days of the invoice date, the Customer must submit a written request specifying the
particular product and amount in dispute and reason for the dispute. This request should be
addressed to:
Accounts Receivable
Pepsi-Cola Customer Service Center
P.O Sox 10
Winston-Salem, North Carolina 27102,
If the Customer makes a price discrepancy claim from 91 to 365 days after the date of
invoice, in addition to the written request as specified above, the Customer must submit to
PSG a copy of the invoice in question, copies of any check remittances pursuant to the
invoice in question and any additional supporting documentation.
(I) PSG reserves the right to limit quantities, withhold or deduct funding as an offset to
amount not paid by Customer or terminate this Agreement if the Customer (i) sells Beverage
Products directly or indirectly for resale outside of the PBG's exclusive territory where the
Customer operates, (ii) purchases Beverage Products outside PSG's exclusive territory
where the Customer operates and resells such Beverage Products within PSG's exclusive
territory or (iii) does not comply with PBG's payment terms or makes an unauthorized
deduction from amounts due.
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Agenda Item No. 16018
April 8, 2008
Page 7 of 12
Bottling Group, LLC
d/b/a The Pepsi Bottling Group
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
BY:
Print Name:
Tom Henning
Title:
Title: Chairman
Date:
Date:
Approved as to Form and Legal Sufficiency
ATIEST:
Dwight E. Brock, Clerk of Courts
By: rroff:eeu~ fJ~ e
Assistant County ttorney
By:
eDl lee'll /lI1. &rUne
Print Name:
Print Name
Date:
3'lq'D~
Date:
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Agenda Item No. 16D18
April 8, 2008
Page 8 of 12
Attachment A
Product Rebates
Rebates Per Cases
CSD 200z, Bottles (24)pk:
Tropicana 200z Bottles (24)pk:
Aquafina 200z, Bottles (24)pk:
Gatorade 200z, Bottles (24pk:
FNT, Products
$3,73
$3.73
$2,68
$1.25
$1.00 per gallon
'All pricing subject to change with a 30 day notice.
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Attachment B
Postmix Products and Prices
$10.10 per gallon on Pepsi brands
$11.10 per gallon on Dr Pepper, Lipton, Fruitworks
$25.00 per gallon on Citrus Springs Juices
$46.00 per box on Lipton Brewed Tea Extract
$38.00 per box on Lipton Tea Sweetener
C02
$35.00 Deposit
$18.00 per tank
'All pricing subject to change with a 30 day notice.
Agenda item No. 16D18
April 8, 2008
Page 9 of 12
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Agenda Item No. 16D18
April 8, 2008
Page 10 of 12
Attachment C
Bottle & Can Products and Prices
CSD 2ooz. Bottles (24)pk:
Tropicana 200z Bottles (24)pk:
Aquafina 200z. Bottles (24)pk:
Gatorade 2ooz. Bottles (24pk:
Dole Juices 160z, Bottles (12)pk:
Lipton Tea 16oz. Bottles (12)pk:
Frappuccino 9,50z, Bottles (12)pk:
So Be 20oz. Bottles (12)pk:
Adrenaline Rush & AMP Cans (12)pk:
22 oz wax cups
32 oz was cups
22 oz lids
32 oz lids
$18.00
$18.00
$10.50
$18.00
$11.00
$11.00
$14.00
$14.00
$16,50
$49.00/case
$49.00/case
$29,00/case
$29.o0/case
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t-\CJenda Item No. 16018
- April 8, 2008
Page 11 of 12
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
16018
Meeting Date:
Recommendation to waive the formal bid process and authorize an agreement with the Pepsi
Cola Bottling Company of Naples for a period of 18 months for beverage service for North
Collier Regional Park. ($45,000)
41812008 9:0000 AM
Item Summary:
Approved By
Linda Best
Contracts Agent
Date
Administrative Services
Purchasing
3124/200810:19 AM
Approved By
Barry Williams
Director
Date
Public Services
Parks and Recreation
3/24120085:44 PM
Approved By
Colleen Greene
Assistant County Attorner
Date
County Attorney
County Attorney Office
3/25(2008 11 :52 Ar\.1
Approved By
Scott Johnson
Purchasing Agent
Date
Administrative Services
Purchasing
3/2512008 12:01 PM
Approved By
Marla Ramsey
Public Services Administrator
Date
Public Services
Public Services Admin.
3/25120082:05 PM
Approved By
Mike Hauer
Acquisition Manager
Date
Administrative Services
Purchasing
3/25/2008 2:44 PM
Approved By
Mike Hauer
Acquisition Manager
Date
Administrative Services
Purchasing
3/25120082:44 PM
Approved By
Sherry Pryor
Management & Budget Analyst
Date
County Manager's Office
Office of Management & Budget
3/25/20084:05 PM
Approved By
John A. Yonkosky
Director of the Office of Management
Date
County Manager's Office
Office of Management & Budget
3127/20082:00 PM
Approved By
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Agenda Item No. 16D18
April 8, 2008
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Leo E. Ochs, Jr.
Deputy County Manager
Date
Board of County
Commissioners
County Manager's Office
3/29/20089:12 AM
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