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HomeMy WebLinkAboutResolution - 6486 - Amendment To Agreement - Civic Lubbock Inc. - 08/26/1999Resolution No. 6486 Aug. 26, 1999 Item No. 50 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Amendment to an Agreement, attached herewith, by and between the City of Lubbock and Civic Lubbock, Inc., and any associated documents, which Amendment shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if full copied herein in detail. Passed by the City Council this 26th day of August '1999. ATTEST: ayt Darnell, City Secretary APPROVED AS TO CONTENT: Tommy Gjmlez, Man,4ng Director of Civic Services APPROVED AS TO FORM: w onald G. Vandiver, First Assistant City Attorney Ddres/Ulamen.res.doc August 12, 1999 THE STATE OF TEXAS § COUNTY OF LUBBOCK § AMENDMENT WITNESSETH: Resolution No. 6486 Aug. 26, 1999 Item No. 50 WHEREAS, the City of Lubbock (hereinafter called "City") and the Civic Lubbock, Inc., (hereinafter called "Corporation") did heretofore on the 24th day of September, 1998, enter into an Agreement wherein City granted to Corporation a license for the use of the Auditorium/Coliseum and the Lubbock Memorial Civic Center in exchange for certain services to be performed by the Corporation; and WHEREAS, it is the desire of the City and the Corporation to amend said Agreement between the City and the Corporation; NOW THEREFORE: BE IT RESOLVED BY THE CITY AND THE CORPORATION AS FOLLOWS: SECTION 1. Paragraph 4 of the September 24, 1998, Agreement between the City and the Corporation shall be amended to read as follows: 4. As additional consideration for this license, the Corporation agrees to abide by the exclusive beverage agreement between the City of Lubbock and Southwest Coca-Cola Bottling Company, dated August 26t', 1999, in regard to the sale, dispensing, serving and sampling of beverages through their concession operation for the term of that agreement, a copy of which is attached hereto. Corporation also agrees to purchase beverage products from Southwest Coca-Cola Bottling Company for and to provide service to any beverage vending machines located at the Municipal Auditorium -Coliseum and the Lubbock Memorial Civic Center. The Corporation may retain all revenues from such vending machines. City agrees to insure that Corporation will have appropriate signage on the System provided by Southwest Coca-Cola Bottling Company for the Municipal Coliseum. Video messages, produced by Corporation, may also be run on the System when System is being utilized for events. Corporation agrees to pay all operational expenses associated with such concession rights or sales, including, but not limited to, salaries of full or part-time staff employees engaged in such sales. Routine maintenance of all concessions as included in this license shall not be considered an operational expense and shall be borne by the City at no cost to the Corporation. In addition, City agrees to employ such full-time staff as may be necessary and appropriate to assist the Corporation in carrying out the duties and responsibilities of the concessions and accounting functions of the Corporation. Salaries and benefits of such employees shall be reimbursed to the City by the Corporation on a quarterly basis. This Amendment to the September 24, 1998, Agreement between the City and the Corporation is executed this 26thday of August , 1999. LUBBOCK,CIVIC OF ::• V;:::Z M M4,--1 ( &� .� ,� WNDY sifrioj,• ATT ST: 61VA - - Secreta ddcon/Mamend4.doc August 12, 1999 A ST• A"i/A kaythik Darnell, City Secretary APPROVED AS TO CONTENT: Tommy Go alez, Managa Director of Civic Services APPROVED AS TO FORM: Attorney THE STATE OF TEXAS COUNTY OF LUBBOCK AGREEMENT Resolution No. 64f Aug. 26, 1999 Item No. 51 This Agreement, made and entered into this 26thday of Aug. 1999 between Southwest Coca-Cola Bottling Company, having a principal place of business at 6134 Ash Drive, Lubbock, Texas 79404 ("Exclusive Beverage Supplier"), and City of Lubbock, a Texas Home Rule corporation, having its principal place of business at 1625 13"' Street, Lubbock, Texas 79457. WITNESSETH: WHEREAS, Exclusive Beverage Supplier desires to obtain exclusive availability, promotional and advertising rights for Exclusive Beverage products of The Coca-Cola Company ("Company") and Exclusive Beverage Supplier; and WHEREAS, CITY OF LUBBOCK is vested with the authority to grant to Exclusive Beverage Supplier the exclusive promotional, advertising and Exclusive Beverage availability rights described herein with respect to all sites in the Lubbock Coliseum and with respect to all sites owned or operated by City of Lubbock ("Locations") (collectively, such Facility(s), sites and Locations are referred to herein as the "Territory(s)"); and WHEREAS, this Agreement is primarily an advertising and availability agreement, entered into for the purpose of creating an association between Exclusive Beverages marketed by Company and Exclusive Beverage Supplier, on the one hand, and the Sites, the Territory(s), the Teams (as herein defined), the Locations and events at the Locations on the other, and exclusive Exclusive Beverage availability rights are necessary to ensure that the association between such Exclusive Beverages and the Sites, the Territory(s), the Teams as defined herein, the facilities' the Locations and events at the Locations is not undermined or diluted; NOW, THEREFORE, in consideration of the promises herein contained, the parties hereto agree as follows: 1. Definitions. CITY OF LUBBOCK means the Designations (as hereinafter defined), and the Locations name, the Sites' names (where teams reside), the Teams' (as hereinafter defined) sites, facilities, names, colors and uniforms, and emblems and all trade names, designs, logos, mascots, characters, identifications, symbols and other proprietary designs that are in existence on the Effective Date or which will be created during the Term and which are licensed or otherwise controlled by CITY OF LUBBOCK. (a) "Agreement Year" means each twelve-month period beginning with the first day of the Term. (b) "Approved Cups" means disposable cups ( 16 oz., 24 oz. and 32 oz. minimum sizes) approved by Company from time to time as its standard trademark cups and/or vessels and/or other (disposable and non -disposable) containers approved by Company from time to time, all of which shall prominently bear the trademark(s) of Coca-Cola and/or other Products (as herein defined) on all of the cup surface. Company's current standard trademark cup is attached hereto as Exhibit A. (c) "Exclusive Beverage" or "Exclusive Beverages" means (i) all hot and cold, carbonated and non -carbonated, nonalcoholic, natural or artificially flavored drinks for independent consumption, including, but not limited to, nonalcoholic drinks with nutritive or nonnutritive sweeteners, soft drinks, frozen carbonated and non -carbonated Exclusive Beverages, flavored and/or sweetened mineral water, bottle waters, natural or artificially flavored fruit juices, fruit juice -containing drinks and fruit -flavored drinks (sweetened or unsweetened), tea products, hypertonic, isotonic, and hypotonic drinks (sports drinks, energy and fluid replacement) ("Sports Drinks"); and (ii) all drink or Exclusive Beverage bases, whether in the form of syrups, powders, crystals, concentrates or otherwise, from which such drinks and Exclusive Beverages could be prepared. "Exclusive Beverage" or "Exclusive Beverages" shall not include coffee products, milk, water drawn from the public water supply or juice squeezed fresh, instant, and brewed tea. (d) "Territory(s)" means the entire premises of each and every Location(s) and facility owned and operated by CITY OF LUBBOCK, except (City Hall (1625 13th St.) and Lubbock International Airport as of the Effective Date of this Agreement and during the term of this Agreement. (e) "Competitive Products" means any and all Exclusive Beverages other than Products (as defined herein). (f) "Locations" shall mean the entire premises of CITY OF LUBBOCK Locations and all other Locations within the Territory(s), including but not limited to the grounds, parking lots, all buildings which are part of the Locations, all concession stands, dining sites, branded and unbranded food service outlets, press rooms, sky boxes, Locations suits, vending and players' benches, sidelines, and locker rooms. All vending will be full service with commission rates consistent with the rates current with the City of Lubbock vending contract. The "Locations" is included within the meaning of the defined term "Territory(s)." These locations are including, but not limited to: ➢ Lubbock Municipal Coliseum ➢ Lubbock Municipal Auditorium ➢ Lubbock Memorial Civic Center ➢ Buddy Holly Center ➢ Santa Land ➢ City Parks (Presence Marketing) (g) "Products" shall mean Exclusive Beverage products of Company or Exclusive Beverage Supplier. (h) "System" shall mean the large scale Video Display System purchased and installed by Exclusive Beverage Supplier in the Lubbock Municipal Coliseum. (i) "Team" shall mean any professional team or teams that may now or in the future occupy locations in the Territories by playing a sport or sports that have been solicited by the City of Lubbock or the City's representative or the teams that solicit the City of Lubbock 2. Term. Exclusive Beverage Supplier shall have the rights provided herein for a term of Ten (10) years, except as the terms herein apply to the Lubbock Municipal Auditorium — Coliseum which shall be for five (5) years, beginning , 1999, ("Term"), unless mutually extended by written agreement of the parties or unless sooner terminated as provided herein. If any subsequent City Council votes to cancel this Agreement for other than non- performance reasons, CITY OF LUBBOCK shall pay to the Coca-Cola Bottling Company of North Texas a pro rata portion of the $1,000,000.00 (One Million Dollars) first year of payment. 3. Grant of Exclusive Exclusive Beverage Availability and Exclusive Beverage Merchandising Rights. CITY OF LUBBOCK hereby grants to Exclusive Beverage Supplier the following exclusive Exclusive Beverage availability and merchandising rights, subject to the Permitted Exceptions set forth in Section 7. (a) Exclusive Beverage Availability on Territory(s). Exclusive Beverage Supplier shall have the exclusive right to make Exclusive Beverages available for sale and distribution on Territory(s). CITY OF LUBBOCK agrees that Products shall be the exclusive Beverages sold, dispensed, served or sampled at all locations and at all functions on the Territory(s). CITY OF LUBBOCK agrees that CITY OF LUBBOCK and all other persons serving Exclusive Beverages on Territory(s), including without limitation concessionaires, team use, shall purchase all Products, Approved Cups and carbon dioxide directly from Exclusive Beverage Supplier, subject to the Permitted Exceptions set forth in Section 7. Exclusive Beverage Supplier agrees to sell all products, approved cups and carbon dioxide at competitive prices. Beverages for immediate consumption only will be allowed in from the public and CITY OF LUBOCK personnel. In particular, CITY OF LUBBOCK shall cause each and every Location(s) administration to do the following: (i) Make carbonated and non -carbonated Products, including without limitation, Coca-Cola® and other soft drink Products, available to the public at all Location(s) during all hours and at all locations in the Sites, (ii) Obtain Exclusive Beverage vending services from Exclusive Beverage Supplier, which shall have the exclusive right to provide Exclusive Beverage vending on Territory(s) except that CIVIC LUBBOCK, INC. shall continue to provide full service to the Exclusive Beverage vending machines located in the Lubbock Memorial Civic Center, Municipal Auditorium and Municipal Coliseum. Carbonated and Non -Carbonated Products, including without, limitation, Coca-Cola and other soft drink Products, will be made available through these existing vending machines at the Lubbock Memorial Civic Center, Municipal Auditorium and Municipal Coliseum. This provision will also include any other vending machines provided to CIVIC LUBBOCK, INC. by Exclusive Beverage Supplier at mutually agreed locations within the Lubbock Memorial Civic Center, Municipal Auditorium and Municipal Coliseum. (iii) May include any new juice Products, juice -containing Products and other Products in concession(s) lines of all Sites. (iv) Permit Exclusive Beverage Supplier to place vending machines, with prior approval of CITY OF LUBBOCK, which approval shall not be unreasonably withheld, in all Locations operated by the CITY OF LUBBOCK; (b) Exclusive Beverage Merchandising Rights. Exclusive Beverage Supplier shall have the exclusive right to merchandise Exclusive Beverages on Territory(s) including the following specific rights: (i) Point -of -Sale Advertising. Materials promoting Products at the point of sale on Territory(s) shall be clearly visible to the purchasing public and shall be displayed in a manner and location acceptable to Exclusive Beverage Supplier CITY OF LUBBOCK shall be given the right to preview all materials and to reject any materials deemed by the CITY OF LUBBOCK to be inappropriate. Also, Exclusive Beverage Supplier shall have the right to place vending machines and other dispensing equipment with full trademark panels on all sides; (ii) Concession/Menu Board Advertising. Trademarks for Products shall be prominently listed on the menu boards of all food and refreshment outlets on Territory(s); (iii) Approved Cups. CITY OF LUBBOCK shall ensure that all take-out Exclusive Beverages served or premix Exclusive Beverages served, sold, sampled, or dispensed at concessions and for "Team use" (including Exclusive Beverages sold, sampled, served or made available in locker rooms, sidelines and players' benches) shall be served in Approved Cups; (iv) On-Territory(s) Promotions Exclusive Beverage Supplier shall have the right to undertake on-Territory(s) Product promotions designed to increase the sale of Products on Territory(s). Such right shall include the right to offer Exclusive Beverages in promotional vessels bearing trademarks for Products. 4. Grant of Exclusive Beverage Advertising and Promotional Rights. Subject to the Permitted Exception set forth in Section 7, CITY OF LUBBOCK hereby grants to Exclusive Beverage Supplier the exclusive right to advertise and promote Exclusive Beverages in and with respect to the Territory(s), the Locations and Sites, and with respect to the CITY OF LUBBOCK, events at the Locations, including the following specific advertising and promotional rights: (a) Signage for Products. (i) Exclusive Beverage Supplier shall be entitled to premiere permanent and dominant signage locations as selected by Exclusive Beverage Supplier and CITY OF LUBBOCK in the Sites and inside the Locations, including but not limited to the advertising panels located on the System. Such signage shall meet Exclusive Beverage Supplier's reasonable specifications as to design, construction, and general appearance. In no event shall CITY OF LUBBOCK grant beverage advertising rights in the Territory(s) to Competitive Products during the Term of this Agreement. (ii) No Obstruction of Signage Without the express written consent of Exclusive Beverage Supplier, Exclusive Beverage Supplier's signage on the Territory(s) shall not be altered, obscured in any way or draped at any time or for any reason by any person or entity, including any broadcaster, except that CITY OF LUBBOCK shall not be responsible for vandalism, unauthorized destructive acts, Acts of God, weather, destruction or civil disobedience resulting in damage to Exclusive Beverage Supplier's signage. Without the express written consent of Exclusive Beverage Supplier in its sole discretion, CITY OF LUBBOCK shall not unreasonably withhold advertisement, knowingly permit Exclusive Beverage Supplier's signage on the Territory(s) to be electronically altered, deleted or covered by any person or entity, including any broadcaster, during any photographing of the Territory(s) or during the broadcast of any event held at the Territory(s). (iii) Obligation to Maintain Signage. Exclusive Beverage Supplier shall maintain all of Exclusive Beverage Suppliers signs and other advertising for Products in good order and repair. (iv) Illuminated Signage. All lighted signs and panels advertising or promoting Products (including lighted concession advertising) shall be fully illuminated at all events on the Territory(s) for which any signs are illuminated. (v) Access to Signage. Exclusive Beverage Supplier shall have the right of access to its permanent signage at all reasonable times for the purpose of replacement or removal of the same or to modify, change or alter the promotional messages appearing thereon at Exclusive Beverage Supplier's cost and discretion, (vi) Shall permit Coca-Cola right to reasonable amounts of advertising space / signage on the system and scoreboards at all CITY OF LUBBOCK recreational/sports fields. (vii) Exclusive Beverage Supplier shall, prior to the display of any signage, obtain approval from CITY OF LUBBOCK for such sign including the size; location, construction and general appearance of the signage and such approval shall not be unreasonably withheld. (b) Promotional Rights. (i) General Sponsorship Designation. Exclusive Beverage Supplier shall have the right to promote the fact that Exclusive Beverage Supplier is a sponsor of the Territory(s), Locations, the Sites and Teams, to use the Designations and to promote that Products are available at the Locations, the Sites and on Territory(s). Such promotion may occur in all advertising, including television, radio and print media, on the packaging of (including cups and vessels) and at the point-of- sale of any and all Products wherever they may be sold or served, and may be conducted in cooperative advertising with Exclusive Beverage Supplier's customers at no additional cost. Should Coca-Cola or CITY OF LUBBOCK be used simultaneously on any other advertising (i.e. CITY OF LUBBOCK promotions other than said in this agreement) no additional funding will be paid. (ii) Sponsorship of Events at Locations. Exclusive Beverage Supplier shall have the right at its option to be the sponsor and the Exclusive Beverage sponsor of any and all CITY OF LUBBOCK sponsored events at the Locations at no additional cost. Such sponsorship shall include the right to have its name and trademarks associated with the events in all advertising by the event sponsor, the right to place advertising in any television, radio, cable or pay-per-view broadcasts from the Locations and the right to promote Exclusive Beverage Supplier's sponsorship of the events in Exclusive Beverage Supplier's advertising, including in cooperative advertising with Exclusive Beverage Supplier's customers. Should another City of Lubbock sponsored event occur on CITY OF LUBBOCK property Coca-Cola will be the event Exclusive Beverage source. 5. Consideration. (a) Exclusive Beverage Supplier agrees to provide to CITY OF LUBBOCK, a system for the Lubbock Municipal Coliseum at a cost of up to One Million Dollars ($1,000,000). In the event that the System should cost less than One Million Dollars ($1,000,000) Exclusive Beverage Supplier shall pay the balance to CITY OF LUBBOCK in the form of sponsorship fees in equal annual payments during the first five (5) years of the term of this Agreement. (b) Exclusive Beverage Supplier agrees to provide Coca-Cola memorabilia to the Buddy Holly Center for permanent exhibition. All memorabilia shall become the property of CITY OF LUBBOCK. The memorabilia shall consist of various Coca-Cola product containers, advertising or promotional items, and vending equipment which shall include an original Coca-Cola bottle vending machine. (c) Exclusive Beverage Supplier shall fill all vending locations served by Exclusive Beverage Supplier. Exclusive Beverage Supplier shall pay CITY OF LUBBOCK a commission as follows: Packages Vend Prices Commission Rates 20 Ounce Carbonated .75 6% Non Returnable Bottles 12 Ounce Carbonated .55 6% Canned 20 Ounce Non Carbonated $1.00 6% Non Returnable Bottle juices Bottle Water Non Returnable $1.00 6% 20 ounce (d) Exclusive Beverage Supplier may adjust vend price to reflect costs increases that may impact this agreement. Exclusive Beverage Supplier shall be competitive in pricing in all locations with similar funding investments provided by Exclusive Beverage Supplier. (e) All sites, territories, facilities, and locations described within will be required to have vending placements of all packages described herein. (f) Exclusive Beverage Supplier grants exception to package vending requirements at the following sites, territories, facilities and locations described within to service vending equipment Lubbock Auditorium/Coliseum and Civic Center. (g) All vending will be 50% non -returnable 20 oz. Bottles; all pouring rights will be 100% non -returnable 20 oz. Bottles. (h) In the event the system is relocated to another city -owned facility, the Exclusive Beverage Supplier retains all advertising, promotional, and availability benefits for the 10 -year agreement period. Subject to the Permitted Exception in Section 7, during the entire Term and any renewal or extension thereof. In the event the System is not relocated to another city -owned facility, EXCLUSIVE BEVERAGE SUPPLIER shall take possession of the System and this Agreement will be re -negotiated. 6. Competitive Products. (a) No Competitive Products may be sold, dispensed, sampled, or served anywhere on the Territory(s). (b) No agreement or relationship will be entered into or maintained by CITY OF LUBBOCK pursuant to which Competitive Products are associated in any manner with the Territory(s), Sites, Locations, Teams and/or events at the Locations. (c) CITY OF LUBBOCK recognizes that Exclusive Beverage Supplier has paid valuable consideration to ensure an exclusive association relationship with the Territory(s), Sites, Locations, Teams and/or events at the Locations with respect to Exclusive Beverages and that any dilution or diminution of such exclusivity seriously impairs Exclusive Beverage Supplier's valuable rights. Accordingly, in the event another person or entity attempts, without Exclusive Beverage Supplier's consent, to associate its Exclusive Beverages with the Territory(s), Sites, Locations, Teams and/or events at the Locations or to suggest that Competitive Products are endorsed by or associated with the Territory(s), Sites, Locations, Teams and/or events at the Locations by referring directly or indirectly to the Territory(s), Sites, Locations, Teams and/or events at the Locations, CITY OF LUBBOCK will promptly notify EXCLUSIVE BEVERAGE SUPPLIER of such actions and take any and all steps recommended by EXCLUSIVE BEVERAGE SUPPLIER but excluding litigation (including, but not limited to written complaints to the violating party and cease and desist announcements) to cooperate with Exclusive Beverage Supplier and to protect the exclusive associational rights granted to Exclusive Beverage Supplier by CITY OF LUBBOCK in this Agreement 7. Permitted Exceptions. The following item shall be considered a "Permitted Exceptions": (a) Permitted Competitive Exclusive Beverage Availability. CITY OF LUBBOCK right to make available for sale on the Territory(s) (i) fresh -squeezed juice, and (ii) fresh -brewed and instant tea, (iii) coffee products, (iv) water drawn from the public water supply, and (v) milk products as long as Exclusive Beverage Supplier does not distribute a similar Product (b) Pre -mix will be poured at Lubbock Municipal Auditorium, Civic Center, Theatre and through portable bars. (c) The City of Lubbock will request all new Caterers to use exclusive beverages as described herein. (d) Permit trade show exhibitors who have an exclusive agreement for competitive products to advertise, display, serve, or sample products only during trade show events. (e) The display during an event in a location of banners, placards, signs or other displays, temporary in nature, erected by an event sponsor, promoter or participant, even though such display may constitute competitive advertising. (f) The permitting or selling of competitive advertising on video display boards temporarily erected by event sponsors or promoters. (g) Customer individual single immediate consumed drink servings are permissible, but not for refilling purposes. (h) CITY OF LUBBOCK may allow any existing contractor to use up any competitive inventory that is on hand as of the date of execution of this Agreement. (i) Permit local water bottling (Apani) company, that is the official sponsor of the Cotton Kings, to sell souvenir bottled water at professional hockey games. This water will not be chilled or iced down. 0) Allow amateur sports leagues in city parks the option to sell concession products and display advertising signage utilizing competitive products. 8. Equipment and Service/Warranty(s). (a) During the Term, Exclusive Beverage Supplier will provide on a full-service basis to CITY OF LUBBOCK, at no cost, (i) that soft drink dispensing equipment which is currently installed at the Territory(s), and (ii) any additional equipment determined by Exclusive Beverage Supplier to be required in order to replace defective or worn out soft drink dispensing equipment or to equip new locations on the Territory(s) ("Equipment"). (b) In addition, Exclusive Beverage Supplier will provide CITY OF LUBBOCK with free service to the vending and pouring Equipment provided by Exclusive Beverage Supplier. Service will be provided during normal business hours, and Exclusive Beverage Supplier will not be obligated to provide service hereunder during periods in which it is prevented from doing so due to strikes, civil disturbances, unavailability of parts or other causes beyond the control of Exclusive Beverage Supplier. (c) Routine maintenance will be provided by CITY OF LUBBOCK on all Coca-Cola and Coca-Cola allied brands identified scoreboards and system. (d) All Warranty from the system manufacturer will be sent to The City of Lubbock. (e) Should system be moved or reinstalled it will be done so at the City of Lubbock expense. (f) Ownership City of Lubbock recognizes all vending and pouring equipment is owned by Exclusive Beverage Supplier. 9. Loss of Exclusive Beverage Availability or Advertising Rights -Termination (a) If (i) a significant number of products are discontinued, or not made available by CITY OF LUBBOCK on the Territory(s) when they are available from EXCLUSIVE BEVERAGE SUPPLIER, (ii) any significant number of the rights granted to Exclusive Beverage Supplier herein are restricted or limited during the Term; (iii) any significant number of the provisions concerning Competitive Products are not complied with; if such event is caused by any action or event within reasonable control of the CITY OF LUBBOCK then Exclusive Beverage Supplier may elect, at its option, as its sole remedy, to: (b) Terminate this Agreement and CITY OF LUBBOCK shall pay to Exclusive Beverage Supplier a pro rata refund of any prepaid Sponsorship Fees; (c) Adjust the fee structure or the remaining portion of the terms for the then remaining portion of the Term and CITY OF LUBBOCK shall pay to Exclusive Beverage Supplier a pro rata refund to reflect the diminution of the value of the rights granted hereunder to Exclusive Beverage Supplier. (d) In the event Exclusive Beverage Supplier elects to exercise its right to such adjustment and refund ("Adjustment"), CITY OF LUBBOCK may, at its option, within thirty (30) days following receipt of notice of any Adjustment, notify Exclusive Beverage Supplier of its disagreement with the amount of the Adjustment. The parties shall then attempt in good faith to resolve the disagreement over such Adjustment. If the parties cannot, after good faith negotiations resolve the matter, Exclusive Beverage Supplier may exercise the right of termination described in subparagraph (y) above. (e) CITY OF LUBBOCK also agrees that Exclusive Beverage Supplier shall have the right, but not the obligation, to terminate this Agreement without further liability to either party if (i) the Sites or Locations are closed; (ii) the Teams fail to play all of their scheduled games on the Territory(s) for a period of more than one hundred eighty days (180) days; (iii) or not due to the temporary unavailability of the Territory(s) or any other cause which may be beyond the reasonable control of LUBBOCK. In the event of such termination, CITY OF LUBBOCK shall pay to Exclusive Beverage Supplier a pro rata refund of any prepaid Sponsorship Fees. (f) Not withstanding any other provision herein, and in addition to all other rights of termination CITY OF LUBBOCK may have; the CITY OF LUBBOCK reserves the right to close or cease using any Location(s) or Location(s) facility and to terminate a corresponding portion of this contract at its convenience and at no further cost or obligation to the CITY OF LUBBOCK. CITY OF LUBBOCK will provide reasonable notice to Exclusive Beverage Supplier of such closing. 10. CITY'S Right of Termination. In the event the EXCLUSIVE BEVERAGE SUPPLIER (1) discontinues a significant number of products, (ii) fails to adequately stock and supply its machines, or (iii) fails to comply with a significant number of the provisions hereof, and EXCLUSIVE BEVERAGE SUPPLIER fails to remedy, such failure after notice in accordance with 19(g), City may terminate this Agreement. 11. Representations, Warranties and Covenants. (a) Representations, Warranties and Covenants of CITY OF LUBBOCK. CITY OF LUBBOCK represents, warrants and covenants to Exclusive Beverage Supplier as follows: (i) CITY OF LUBBOCK Authority. CITY OF LUBBOCK has full power and authority to enter into this Agreement and to grant and convey to Exclusive Beverage Supplier the rights set forth herein. Upon any expiration or revocation of CITY OF LUBBOCK's authority to convey, in whole or in part, the above advertising, promotional, Exclusive Beverage availability and merchandising rights, then, in addition to the termination rights set forth, in whole or in part, in Section 10 above, Exclusive Beverage Supplier shall have the right, but not the obligation, to cease payment to CITY OF LUBBOCK and instead make payment to any party that thereafter assumes responsibility for any Exclusive Beverage advertising, promotional and/or availability rights on the Territory(s) and/or promotional and advertising rights with respect to the CITY OF LUBBOCK, Sites and the Teams. (ii) CITY OF LUBBOCK Binding Obligation. To the best of CITY OF LUBBOCK'S knowledge, all necessary approvals for the execution, delivery and performance of this Agreement by CITY OF LUBBOCK have been obtained, and this Agreement has been duly executed and delivered by CITY OF LUBBOCK. It is the CITY OF LUBBOCK'S intent that this constitutes the legal and binding obligation of CITY OF LUBBOCK enforceable in accordance with its terms. (iii) No Conflict with Other Agreements. During the Term of this Agreement CITY OF LUBBOCK, will not enter into (a) any other agreements (including agreements with any broadcaster or any other sponsors of the Territory(s), Sites, Locations and/or the Teams) which would prevent it from fully complying with the provisions of this Agreement or (b) any agreement granting Exclusive Beverage availability and merchandising or promotional and/or advertising rights that are inconsistent with the rights granted to Exclusive Beverage Supplier pursuant to this Agreement, including any agreements with concessionaires or third party food service operators, vending companies, and/or other entities which sell or distribute Exclusive Beverages and/or food (including agreements with broadcasters or other sponsors of the Territory(s), Location(s), Locations and/or the Teams). CITY OF LUBBOCK further covenants that it will require compliance with the relevant provisions of this Agreement by third party food service operators, vending companies, concessionaires, and/or other entities which sell or distribute Exclusive Beverages and/or food on the Territory(s), or which sponsor events on the Territory(s), to the extent that it may legally do so without breaching any existing agreements with, or lawfully enforceable rights of any such parties. (b) Representations and Warranties and Covenants of Exclusive Beverage Supplier. Exclusive Beverage Supplier represents, warrants and covenants as follows: (i) Authority. Exclusive Beverage Supplier has full power and authority to enter into and perform this Agreement. (ii) Binding Agreement. To the best of EXCLUSIVE BEVERAGE SUPPLIER's knowledge, all necessary approvals for the execution, delivery and performance for this Agreement by Exclusive Beverage Supplier have been obtained, and this Agreement has been duly executed and delivered by Exclusive Beverage Supplier. It is the intent of EXCLUSIVE BEVERAGE SUPPLIER that this Agreement constitutes the legal and binding obligation of Exclusive Beverage Supplier enforceable in accordance with its terms. (iii) No Conflict with Other Agreements. Exclusive Beverage Supplier has not entered into, and during the Term of this Agreement, will not enter into, any other Agreements which would prevent either from fully complying with the provisions of this Agreement. (c) General. Each of the parties hereto agree that the representations, warranties and covenants contained herein shall survive the execution and delivery, and if appropriate the termination, of this Agreement. 12. Notices. Any notice or other communication hereunder shall be in writing, shall be sent via registered or certified mail, and shall be deemed given when deposited, postage prepaid, in the United States mail, addressed as set forth below, or to such other address as either of the parties shall advise the other in writing: If to Exclusive Beverage Supplier: Southwest Coca-Cola Bottling Company 6134 Ash Drive Lubbock, Texas 79404 Attention: Area Vice -President With a copy to: Coca-Cola Enterprises Inc. P.O. Box 2008 Dallas, Texas 75209 Attention: Division Cold Drink Director If to CITY OF LUBBOCK: CITY OF LUBBOCK P.O. Box 2000 162513 th Street Lubbock, Texas 79457 Attention: City Attorney 10 13. Assignment. This Agreement or any part hereof shall not be assigned or otherwise transferred by either party without the prior written consent of the other party. 14. Modifications. No modification or waiver of any of the terms and conditions of this Agreement shall be effective unless such modification or waiver is expressed in writing and executed by each of the parties hereto. 15. Relationship of Parties. The parties are acting herein as independent contractors and independent employers. Nothing herein contained shall create or be construed as creating a partnership, joint venture or agency relationship between any of the parties and no party shall have the authority to bind the other in any respect. This Agreement may be amended only in writing signed by each of the parties hereto. 16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. 17. Retention of Rights. CITY OF LUBBOCK shall not obtain, by this Agreement, any right, title or interest in the trademarks of The Coca-Cola Company, nor shall this Agreement give CITY OF LUBBOCK the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of The Coca-Cola Company. 18. Captions. The captions used in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of the provisions set forth herein. 19. Additional Items. (a) Exclusive Beverage Supplier covenants, warrants and represents to CITY OF LUBBOCK that this Agreement and the performance of all obligations hereunder is not in contravention or violation of any state or federal law; including but not limited to federal anti-trust statutes (15 U.S.C. Par 1, et seq.) and/or the Anti -Trust Act of 1983 (Tex. Bus. & Com. Code Ann. Par. 15.01, et.seq.). Exclusive Beverage Supplier shall indemnify and hold harmless the CITY OF LUBBOCK from only suits, claims and/or demands that allege the Agreement violates any patent or anti-trust statute. (b) Exclusive Beverage Supplier shall indemnify and hold harmless the CITY OF LUBBOCK and its City Council Directors, officers and employees from suits, actions, losses, damages, claims or liability that may arise during the terms stated herein on any patent or copyright infringement laws pertaining to item (a) as stated above. (c) CITY OF LUBBOCK and EXCLUSIVE BEVERAGE SUPPLIER shall indemnify each 11I other and hold harmless each other or any of their respective personnel from any and all claims made directly or indirectly herein resulting from each parties' own activities hereunder. (d) If any provision or term of this Agreement is judicially determined to be invalid, void or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable and shall in no way be affected, impaired, or invalidated if the same may be given effect without the void or invalid provision. (e) This Agreement shall be interpreted in accordance with and shall be governed by the laws of the State of Texas. This Agreement is performable in Lubbock County, Texas, and the parties agree that venue from any disputes affecting the Agreement shall be in Lubbock County, Texas. (f) All the CITY OF LUBBOCK Location(s) accounts with Exclusive Beverage Supplier shall merge with and be under this Agreement. Exclusive Beverage Supplier shall establish a single statement for the CITY OF LUBBOCK reflecting sales at each location described as part of the Premises. Any prior or existing agreements with CITY OF LUBBOCK are hereby canceled terminated and all agreements or transactions with CITY OF LUBBOCK and its lawful representative shall be governed by this Agreement. (g) This Agreement can be canceled or refused by the CITY OF LUBBOCK for nonperformance by the Exclusive Beverage Supplier. Exclusive Beverage Supplier and CITY OF LUBBOCK will resolve disputes regarding non-performance as follows: (i) CITY OF LUBBOCK and EXCLUSIVE BEVERAGE SUPPLIER will jointly discuss any unresolved issues. (ii) CITY OF LUBBOCK will be responsible for submitting in writing to EXCLUSIVE BEVERAGE SUPPLIER any unresolved issues that are over three (3) days duration. (iii) Unresolved issues that are not corrected may be grounds for termination of this contract. (iv) In the event of cancellation for non-performance by Exclusive Beverage Supplier, CITY OF LUBBOCK shall be entitled to retain all payments and/or donations made by Exclusive Beverage Supplier before the cancellation occurs. (h) The commissions due CITY OF LUBBOCK shall be paid to CITY OF LUBBOCK each month following the previous month's Exclusive Beverage sales together with an accounting of all sales and moneys in a form satisfactory to the CITY OF LUBBOCK. 20. Product Quality All products stocked or provided by Exclusive Beverage Supplier will be good quality and fresh and, if expiration dated within the permissible date, Exclusive Beverage Supplier will fully reimburse any consumer for any product by Exclusive Beverage Supplier found to be out of date or contaminated with foreign substance. 21. Entire Agreement This Agreement shall constitute the final, complete and exclusive written expression of the intentions of the parties hereto and shall supersede all previous communications, representations, agreements, promises or statements, either oral or written, by or between either party. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date first above written. 12 SOUT WEST COCA-COLA BOTT C PANY By: 4 Printed Name: To fel, /% P) �/IC6 Title: V e I✓ ` PSS! o ph) Date: Q - 9 ` q c, 13 • :• Effin A EST• a i arnell, City Secreta APP VED AS TO CONTENT: 4 Tommy donzaleF, Magaging Director of Civic Services riluzd,�,/t:1 2, 0, t , r First Assistant City Attorney