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HomeMy WebLinkAbout94-171 . THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW # 94-171 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Coca-Cola Bottling Ltd., Uxbridge, Ontario, for the Supply of Concession Beverages. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a contract between Coca-Cola Bottling Ltd. and said Corporation. By-law read a first and second time this 24th day of October 1994 By-law read a third time and finally passed this 24th day of October 1994 ."". " . ( " , : THIS AGREEMENT, made the dt..f7H day of ~1995. BETWEEN: COCA.COLA BOTTLING L TO. (hereinafter referred to as "CCB") OF THE FIRST PART; - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called "Clarington") OF THE SECOND PART. WHEREAS Clarington is the owner of and is responsible to provide for the administration, general management and operation of all present and future recreational facilities including the Gamet B. Richard Recreation Complex, the Darlington Sports Centre, the Fitness Centre and the Municipal Administrative Centre, in the Municipality of Clarington in the Province of Ontario (hereinafter called the "Premises"); AND WHEREAS Clarington is desirous of entering into an agreement with CCB for the supply of certain soft drink beverages (as hereinafter defined) for use at the Concessions (as hereinafter defined) located at the Premises and also for the supply of certain advertising material at the Premises; NOW THEREFORE in consideration of the mutual agreements and covenants contained herein and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, the parties agree as follows: 1. In this agreement, the term (a) "advertisement", "advertising" or "advertising rights" in relation to soft drink beverages shall mean and refer to advertising or promotion in all forms, including without limitation radio, television, public address, movie theatre, other electronic media, print media, billboards and other signage, whether painted or otherwise, and jk'agree\claringt.agr 6095-318 - 1 - , ; shall include giveaway of soft drink beverages or vouchers redeemable against the receipt or the purchase price of soft drink beverages; (b) "Affiliate" shall mean, in relation to a party to this agreement, any associate or affiliated body corporate, as those terms are defined in the Canada Business Corporations Act, or any person with whom a party hereto does not deal at arm's length; "arm's length" having the meaning given in Section 251 of the Income Tax Act (Canada); (c) "Concessions" shall mean all present or future concessions, restaurants, bars or any other locations at the Premises, including automated coin-operated vending machines, where soft drink beverages are sold or distributed, and "Concessionaire(s)" shall mean any person, firm, corporation or other entity authorized or permitted by Clarington to operate a Concession; (d) "Equipment" shall mean equipment used to dispense the soft drink beverages of CCB; (e) "notice" shall have the meaning ascribed to such term in paragraph < >; (f) "soft drink beverages" shall mean and include: [i] all carbonated and non-carbonated, non-alcoholic beverages including, without limiting the generality of the foregoing, fruit juices, fruit drinks, spring water, isotonic or "sports" drinks and regular and fruit flavoured iced tea for consumption and for bar use as mixers or otherwise; and [ii] all drink or beverage bases, whether in the form of syrups, powders, crystals, concentrates or otherwise, from which such drinks and beverages are made; (g) "soft drink beverages of CCB" shall mean and include those soft drink beverages in such packages, brands and dispensing forms as CCB may in its sole discretion select and which from time to time during the Term of this agreement are sold and distributed by CCB; (h) "Scoreboard" shall mean one (1) Hamilton Digital LED clock, together with all accessories supplied therewith or added thereto; (i) "supply" in relation to soft drink beverages shall mean and include: the sale, distribution or give-away of actual items or vouchers redeemable against the purchase price or receipt of soft drink beverages and any other distribution in kind or otherwise, and "supplier" shall mean any person or entity who provides a supply; jk'agree\claringt.agr 6095-318 - 2 - , : . . \' U) "Term" shall mean the term of this agreement which shall commence on the 30th day of September, 1994 and be fully complete and ended on the 31st day of August, 1999; (k) "Trade-marks" shall mean those trade-marks which CCB is authorized by its licensors to use in connection with the soft drink beverages of CCB. 2. Clarington covenants with CCB that during and throughout the Term, CCB shall be the sole and exclusive advertiser of soft drink beverages within or about the Premises and Clarington represents and warrants to CCB that there is not, and covenants with CCB that there shall not at any time during the Term be, any advertising, promotion or mention of any nature or description (including product giveaways, prizes or other similar schemes), whether visual or oral (including any public address system in the Premises), of any soft drink beverage which is not a soft drink beverage of CCB within or about the Premises, including the structures, hallways and concourses within the Premises or at any outside entrances to the Premises. 3. Clarington shall not grant to any manufacturer, bottler or supplier of soft drink beverages other than CCB the right to associate itself or its soft drink beverages with the Premises in any manner directly or by implication. 4. Clarington covenants with CCB that during and throughout the Term, CCB shall be the sole and exclusive supplier of soft drink beverages for sale or distribution at the Premises and the Concessions and that Clarington and the Concessionaires shall purchase for resale or distribution at the Premises and the Concessions only the soft drink beverages of CCB. 5. CCB shall sell to Clarington and to the Concessions the soft drink beverages of CCB for use at the Concessions. The soft drink beverages of CCB shall be sold to Clarington at CCB's prices as set out on Schedule "A" attached hereto, in accordance with CCB's standard trade terms in effect from time to time plus any.applicable taxes and deposits. Each of the prices set out in Schedule "A" set out may be increased by CCB at any time during each applicable Agreement Year by a percentage that is not greater than the percentage increase in the Consumer Price Index (All Items) as published by Statistics Canada (or any successor government agency) for Canada ("CPI") during the immediately preceding calendar year from January 1st until December 31st immediately preceding the applicable Agreement Year. 6. During the Term CCB shall loan to Clarington free of charge, for use at the Concessions, such Equipment as is necessary, in the opinion of CCB, to adequately dispense the soft drink beverages of CCB at the Concessions. As required by CCB, jklagree\claringt.agr 6095-318 - 3 - . : . . \' Clarington shall execute CCB's standard form of loan agreement with respect to such Equipment. Clarington covenants and agrees that: (a) (b) (c) (d) (e) (f) the Equipment shall remain the sole property of CCB and may be so identified and may, in addition, bear advertising for any of the soft drink beverages of CCB. Upon the termination of this agreement, CCB may immediately take possession of and remove the Equipment whether or not it is in any way attached to its location; Clarington shall not remove the Equipment from the Premises or cause or permit it to be removed by anyone other than an authorized representative or agent of CCB; Clarington shall be responsible for any loss or damage to or destruction of the Equipment while it is on loan to Clarington or to the Concessions (normal wear and tear excepted) and Clarington shall promptly indemnifyCCB against any loss, expense or damage suffered in respect thereof; Ordinary service of the Equipment will be conducted by CCB at no cost to Clarington; the Equipment shall be used solely for the purpose of dispensing the soft drink beverages of CCB at the Concessions; and the loan of the Equipment by CCB to Clarington shall terminate upon the expiration of the Term or the earlier termination of this agreement. 7. Further, during the Term, CCB shall loan to Clarington free of charge, four (4) illuminated menu boards, ten (10) hockey chalk boards, two (2) dressing room allocation boards, two (2) 4' x 8' advertising signs, and one(1) Wilshire Model MCC500 ice machine and one 12" LED digital time clock (Hamilton Digital's model DC-12-1A). 8. During the Term, CCB shall loan the Scoreboard to Clarington free of charge, but on the terms and conditions contained herein. The costs of installation or related items shall be borne by Clarington. Clarington hereby grants to CCB the exclusive right to decorate the advertising panels of the Scoreboard with advertising material for one or more of the soft drink beverages of CCB as CCB may in its sole discretion select, and CCB may at its own expense change such advertising material from time to time during the Term as it may decide. 9. Clarington shall operate and illuminate the Scoreboard during and throughout all functions and events taking place at the Premises which ordinarily require the use of a scoreboard and shall operate the Scoreboard in a careful and prudent jk\agree\claringt.agr 6095-318 - 4 - . . t' manner, in compliance with the manufacturer's instructions and all applicable laws and regulations, by competent and duly qualified personnel only. Clarington agrees to keep the Scoreboard in good repair throughout the Term at its sole cost and expense. 1 D.' This Agreement constitutes the entire agreement between the parties and Clarington acknowledges that there are no agreements, warranties, conditions, terms, representations or inducements, oral or written, express or implied, legal, statutory, customary, collateral or otherwise, made by or on behalf of CCB or operating in favour of Clarington as to any aspect of the Scoreboard, including without limitation its condition, operation, fitness for a particular purpose, durability or merchantability. 11. During the Term of this Agreement, Clarington shall obtain and maintain at its own expense, property damage and liability insurance against any loss or liability or injury including death to any person in or around the Premises and notwithstanding the generality of the foregoing shall include damage to the Equipment and the Scoreboard,or any property related to this agreement and located in the Premises and including all loss by fire, (including extended coverage), theft, collision, and such other risks of loss as are customarily covered by insurance on equipment of the type described in this agreement and in such amounts in such form and with such insurers as shall be satisfactory to CCB. Each policy of insurance shall name Clarington and CCB as insureds, with CCB listed as loss payee thereof and shall contain a clause requiring insurer to give CCB at least thirty (30) days' prior notice of any alteration to the terms of such policy or the cancellation thereof. At CCB's request, Clarington shall furnish to CCB a certificate of insurance or other evidence satisfactory to CCB that such insurance coverage is in effect, provided, however, that CCB shall be under no duty either to ascertain the existence of or to examine such insurance policy or to advise Clarington in the event such insurance coverage shall not comply with the requirements hereof. 12. Clarington shall, throughout the Term, comply with and conform to all laws, ordinances and regulations, present or future, in any way relating to the ownership, possession, use.or maintenance of the Scoreboard. 13. Clarington shall keep the Scoreboard free of all levies, liens and encumbrances and shall pay all licence fees, registration fees, assessments, charges and taxes (municipal, provincial and federal), which may be levied or assessed directly or indirectly against or on account of the Scoreboard or any interest therein or use thereof. If Clarington shall fail to pay such licence fees, registration fees, assessments, charges or taxes, CCB shall have the option to pay such licence fees, registration fees, assessments, charges and taxes as the case may be and recover all such amounts from Clarington. jklagree\claringt.agr 6095-318 - 5 - . . I. . 14. Clarington represents and warrants to CCB that there is not, and covenants with CCB that there shall not be at any time during the Term, commercial signage or advertising placed or displayed on or affixed to the Scoreboard (other than the advertising material of CCB). 15. During the Term of this Agreement: (a) Clarington agrees that all soft drink beverages of CCB (in fountain form) shall be distributed or sold to the general public at the Concessions in standard industry cups which shall be decorated with advertising of the soft drink beverages of CCB. CCB agrees to supply to Clarington such quantities of cups and lids as are ordered from time to time for use at the Concessions. The purchase price for such cups and lids shall be the prevailing CCB wholesale price for such cups and lids; and (b) Clarington agrees to keep all syrup heads of the Equipment at the Concessions properly identified with the appropriate trade marks of CCB relating to those soft drink beverages of CCB actually dispensed through such syrup heads. 16. Clarington recognizes the value to CCB of maintaining the integrity of the Trade-marks used in association with the soft drink beverages of CCB wherever the soft drink beverages of CCB are sold, dispensed, promoted or advertised at the Premises. Clarington agrees that all such usage shall be in the format, style and treatment furnished or approved by CCB. Upon the expiration of this agreement or upon its termination for any reason whatsoever, all advertising materials bearing any of the Trade-marks shall be made available to CCB for removal from the Premises. CCB shall have the right to remove such advertising materials at its own expense and Clarington shall have no claim or interest therein. 17. Clarington recognizes that CCB has paid and will pay valuable consideration to ensure an exclusive relationship with Clarington in terms of both exclusive advertising and supply of soft drink beverages and that any dilution or diminution of such exclusivity seriously impairs CCB's valuable rights. Accordingly, in the event another person or entity attempts, without CCB's consent, to associate its soft drink beverages with the Premises, or to suggest that soft drink beverages other than the soft drink beverages of CCB are endorsed by or associated with the Premises by referring directly or indirectly to the Premises, Clarington will oppose such actions and take any and all steps necessary (including, but not limited to: written complaints to the violating party and local media outlets; private and public cease and desist announcements; and the filing of appropriate legal actions, including actions for temporary and permanent injunctive relief) to protect the exclusive association rights granted to CCB by Clarington in this agreement. .-..AliA. 11(1:\) lk. u",hc..c-T .~ be-- +€(M;nc~{ec\ b(1-. eli~iv" pa,+~ vpc'") -thir-\-d (30\ ~s ~~ l\AW \)J~\-\-teV\) nohLe. . \ij-'t'~~~ee\claringt.agr (\\I\/I) 6095-318 \j1tf Iltbl 1", 1-'\"",,,; F/; to of ClMi"j to.... .;.,?t,- "<",.,, -lk ds~t k "old., ,-kiek ~fh .ecV\C-e<::1S>lC"- o\O\\e\--c; Ci E'^-t~"'1-u.N-\\t~ C:e.NL-\-l'e~ as. f'~vlreeJ, v..\d.o.J 'fu \~ S~ \-e.rw-..~ cVV'''('\ C-ol\.ct,l--i. C ."\..,':, CL',.~ s:-\z-...~ if\.. ~''So. oicc..v ./Y\.e__ "'~{ . , " I '. 18. CCB shall hold harmless, defend and indemnify Clarington against all actions, claims, demands, liabilities, damages and costs, including legal fees and court costs, for libel, slander, infringement of trade mark or trade names, violations of rights of privacy and infringement of copyrights and proprietary rights resulting from any advertising material used by CCB on the Scoreboard or at the Premises. 19. Clarington shall hold harmless, defend and indemnify CCB from and against any and all losses, actions, claims, suits, proceedings, expenses, demands, liabilities, damages and costs, including court costs and legal fees arising out of, connected with or resulting from the operation of the Premises including without limitation the manufacture, selection, possession, use, operation or return of the Scoreboard or otherwise on account of any personal injury or death or damage to property during the Term or on account of any infringement or alleged infringement of patent occasioned by the operation of the Scoreboard. 20. The occurrence or happening of anyone or more of the following events shall constitute an event of default, and CCB may at its option terminate this agreement forthwith without prejudice to any other rights it may have at law, in equity or otherwise: (a) advertising for or promoting a soft drink beverage which is not a soft drink beverage of CCB is placed or displayed in or about the Premises or the Concessions; (b) CCB is not the sole and exclusive supplier of soft drink beverages at the Premises; (c) damage or destruction to the Premises occurs from any cause whatever, the extent of which is such that in the reasonable opinion of CCB it is unsafe or impossible to use the Premises and which in the reasonable opinion of CCB cannot be repaired within thirty (30) days immediately following the occurrence of such damage or destruction, or the Premises are inaccessible to the general public for whatever reason; (d) Clarington or any Concessionaire abuses, misuses, discredits or otherwise impairs the goodwill associated with the soft drink beverages of CCB or the Trade-marks; (e) any of the goods and chattels of Clarington on the Premises shall be at any time during the Term hereof seized or taken in execution or attachment by any creditor of Clarington (including, without limitation, if a receiver or receiver and manager shall enter into possession of the Premises) or if Clarington shall make any assignment for the benefit of creditors, or any bulk sale of goods on the Premises, except in the ordinary course of its business, or becoming bankrupt or insolvent shall take the benefit of any Act now or hereafter in force for bankrupt or insolvent jklagree\claringt.agr 6095-318 - 7 - . ' : I debtors, or if a receiving order is made against Clarington, or if any order shall be made for the winding up of Clarington; (f) any structural change is effected in the Premises that necessitates the removal of the signage in whole or in substantial part; or (g) Clarington fails to perform or observe any covenant, condition or agreement to be performed or observed by it herein (other than those enumerated in sub-paragraphs (a) through (f) above), and such failure continues unremedied for a period of thirty (3D) days after notice thereof by CCB. 21. Upon the early termination of this agreement for any reason, Clarington shall immediately return the Equipment and any other property of CCB and if it fails to do so, CCB shall have the right to enter into the Premises or any other place where the Equipment, advertising or other propertyofCCB is located without notice or demand or legal process and take possession of and remove the same or any part thereof at Clarington's expense. 22. Neither party shall be liable hereunder for failure to perform in accordance with the terms of this agreement to the extent that and so long as such failure occurs for a reason beyond the reasonable control of the non-performing party, including without limiting the generality of the foregoing, an act of violence, strike, blacklisting, embargo, fire, storm, flood, explosion, riot, war, rebellion, revolution, insurrection, act of God or act of any governmental authority or any other occurrence similar or dissimilar to those enumerated which is beyond the reasonable control of the non-performing party. 23. Each of the parties separately represents and warrants to the other that it has full authority and capacity to enter into and comply with the terms, covenants and conditions of this agreement and that it is not a party to any other contract or contracts and does not have any other obligations that would prevent it from fulfilling any other terms, covenants and conditions hereunder or which would in any way impair any rights granted to either party hereunder. 24. Failure by any party hereto to insist in anyone or more instances upon the strict performance of any of the covenants, agreements, terms, provisions or conditions of this agreement shall not be construed as a waiver or relinquishment in the future of such covenants, agreements, terms, provisions and conditions. 25. This agreement shall not be amended or deemed to be amended save only by further agreement in writing of equal formality hereto. jklagree\claringt.agr 6095-318 - 8 - . . : I 26. Subject to the express provision of this agreement, neither party hereto may assign or transfer this agreement or any rights granted herein unless the prior consent of the other party is obtained, which consent shall not be unreasonably withheld. However, CCB may assign this agreement to an Affiliate without the consent of (but upon notice to) Clarington. 27. This agreement shall be governed, construed and interpreted in all respect in accordance with the laws of the Province of Ontario and the laws of Canada applicable thereto. 28. thereof. Time shall be of the essence of this agreement and each and every part 29. Any notice desired or required to be given in accordance with the terms, covenants and conditions to this agreement shall be in writing and shall be deemed to be effectively given three (3) business days of consecutive postal service after the same has been mailed by prepaid, registered post to the party to whom the notice is described at the address as follows: To CCB: Coca-Cola Bottling Ltd. 42 Overlea Boulevard Toronto, Ontario M4H 1 B8 Attention: Secretary To Clarington: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L 1 C 3A6 Attention: Purchasing Office or served personally or by facsimile transmission (together with confirmation of facsimile transmission) upon an officer of the party for whom it is intended. Any such notice given as aforesaid shall be conclusively deemed to have been delivered and received if served personally, on the date of such service, or if mailed, on the third day of normal public postal service after such mailing (Saturdays, Sundays and postal holidays excluded) or if by facsimile transmission, on the next business day following the date of transmission. jklagree\claringt.agr 6095-318 - 9 - ,. . : l , Any party may from time to time by notice to the other change the address to which notices are to be given. IN WITNESS WHEREOF the parties hereto have caused this agreement to be' duly executed as of the day and year first written above. COCA-COLABOT~" per:~. . ~ THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: u;4~~~ HAMRE, MA: R jklagree\claringt.agr 6095-318 - 10- . : - . l' \ SCHEDULE "A" PRICES(*) FOR SOFT DRINK BEVERAGES OF CCB BRAND - COST Pre-Mix Cola-Cola Classic diet Coke Sprite C-Plus Canada Dry Soda Canada Dry Tonic Canada Dry Ginger Ale $18.00/tank Juice Cans - 24 x 341 mL 5-Alive Fruit Punch Apple Juice Orange Juice Nestea Iced Tea Diet Nestea Iced Tea $ 8.50 Juice Bottles - 473mL Glass Bottles (12 Units/Case) 5-AI ive Fruit Punch Apple Juice Orange Juice Pink Grapefruit Grape Punch Nestea Iced Tea Diet Nestea All Fruitopia Flavours $ 7.90 . : -- . ~'l- I . - 2 - Soft Drink Cans (24 x 355 ml) Coca-Cola Classic Diet Coke Caffeine Free Diet Coke Sprite Diet Sprite 'C' Plus Orange Soda A& W Root Beer A&W Cream Soda Canada Dry Ginger Ale Canada Dry Diet Ginger Ale Canada Dry Tonic Water Canada Dry Club Soda Fresca Welch's Grape Soda Tahiti Treat Wink Squirt Sunkist Lemonade $7.50 PowerAde -- 24 x 591 mL Bottles $20.75 20L Bag-in-Box - All Flavours 10L Bag-in-Box - diet Coke $55.00 $29.00 Trademark CuPs and Lids COST CUP SUGGESTED SIZE CUP COST LID COST UNIT/CASE /L1D RETAIL · 01 . 00 "'7JII!! ,/., ~!If 120z $82.50 $28:7 5 2,500 4:< cents $.79 160z $45.00 $21.00 1,000 6.6 cents $.89 200z $56.50 $21 .00 1,000 7.7 cents $.99 1r Deposits and applicable taxes extra. - Availability & Prices subject to the terms set out in the Agreement.