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HomeMy WebLinkAboutRES 92-338 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to approve a ten year contract with the Coca-Cola Bottling Company to advertise on the message center of the City marquee beginning December 31, 1992, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the B�day of nor' �' ,F .a�c../ .+� 1992. - Mayor - AGREEMENT This Agreement, made and entered into this day of 1992 between Austin Coca-Cola Bottling Company d/b/a Beaumont Coca-Cola Bottling Company/Dr Pepper Bottling Company, a Tennessee corporation ("Advertiser"), and the City of Beaumont, Texas ("City"). WITNES SETH: WHEREAS, Advertiser desires to obtain certain soft drink product availability rights and to advertise certain soft drink products of The Coca-Cola Company on signs located in and around the following City-operated facilities, collectively referred herein as ("Facilities"), (1) Beaumont Civic Center, 701 Main Street, (2) Julie Rogers Theatre, 765 Pearl Street ,(3) Jefferson Theatre, 345 Fannin, (4) Fairpark Coliseum, 2600 Gulf, (5) Harvest Club, 2600 Gulf; and, WHEREAS, City is vested with the authority to grant the following advertising and soft drink product availability rights to Advertiser and is willing to do so for the consideration stated herein; and WHEREAS, this Agreement is primarily an advertising agreement, entered into for the purpose of creating an association between products of The Coca-Cola Company and the Facilities, and exclusive product availability rights are necessary to ensure that the association between the products and the Facilities is not undermined or diluted; NOW, THEREFORE, in consideration of the promises herein contained, the parties hereto agree as follows: 1. Term Advertiser shall have the rights provided herein for a term of ten (10) years, beginning December 31, 1992 ("Term"), unless mutually extended by written agreement of the parties or unless sooner terminated as provided herein. 2. Grant of Advertising Rights During the Term, City hereby grants to Advertiser the exclusive privilege to advertise 'Beverages", as such term is defined in Exhibit A attached hereto and made a part 1 EXHIBIT "A" hereof by this reference, in the Facilities, including, but not limited to, on advertising signage located in the Facilities. The size and location of the spaces for the advertising signage shall conform at all times to the designated areas of the marquee allocated for advertising as shown on Exhibit "C". It is understood that for purposes of this Agreement, references to the "Facilities" and "in the Facilities" shall be deemed to be references to the entire premises of the Facilities, and in and around the Facilities. 3. Consideration For the exclusive advertising, product availability and other rights described herein, Advertiser agrees to pay to City sponsorship fees in the amount of Fifty Five Thousand Dollars ($ 55,000) ("Sponsorship Fees), for the entire Term, to be payable in five (5) equal installments in the amount of Eleven Thousand Dollars ($ 11,000) each over a five (5) year period. The first such payment in the amount of Eleven Thousand Dollars ($ 11,000) shall be made on or before December 31, 1992, and each such succeeding payment shall be made on or before the anniversary date thereafter. 4. Product Availability and Other Advertising Rights During the Term, City hereby grants to Advertiser the exclusive right to advertise and make available for sale Coca-Cola classic, diet Coke, Sprite and such other beverages as distributed by Advertiser as may be agreed upon ('Products"), at all locations in the Facilities where Beverages are sold, dispensed or served, including concession stands, restaurants, private clubs, press rooms and sky boxes in the following manner: a. City and/or Concessionaire for City will purchase products from Advertiser so long as the price for such products is no higher than the price Advertiser offers its products to other customers with volumes and characteristics similar to those of City and/or Concessionaire. b. All equipment dispensing Products in the Facilities shall carry panels that advertise such Products and are clearly visible to the purchasing public. Where it is not possible to provide such trademark advertising visible to the public, City shall otherwise provide for the prominent display of such point-of-sale advertising in a manner and location acceptable to Advertiser. c. City further agrees that Products shall be prominently listed on the menu boards of all food and refreshment outlets in the Facilities. As used herein, "menu boards" includes all signage in, on or around the concessions area which is visible to the consumer. d. Products shall be available in Advertiser's approved cups purchased from Advertiser (the "approved cup") at all locations in the Facilities where Beverages are sold or dispensed, including locker rooms and players' benches. The design for Advertiser's currently 2 dispensed, including locker rooms and players' benches. The design for Advertiser's currently approved cup is set forth in Exhibit B, and is subject to modification by Advertiser, in its discretion, from time to time. City shall take whatever steps are necessary to ensure that approved cups are used by third parties serving Products in the Facilities, including inserting such requirements in any contracts with third parties. City further agrees that Products shall be hawked in the stands in approved cups at all sporting events and during all events when any items of any make or description are hawked at the Facilities. Such approved cups shall be used exclusively with Products and shall not be used to dispense, distribute or sell any beverage other than the Products; provided, however, that City shall not be precluded from serving water in the approved cups on the players' benches, on the sidelines and in the Facilities' locker rooms. Any and all Beverages other than the Products shall be deemed to be "Competitive Products" for purposes of this Agreement. Advertiser shall have the right to advertise the fact that the Products are available in the Facilities. The provisions of this Section 4.d. are a material part of this Agreement. However, should City and/or Concessionaire desire to provide product in a souvenir cup, such cup may be used so long as Advertiser's logo is prominently displayed on such cup. e. Advertiser's advertising panels shall be fully illuminated at night events and at all other times when the signage is illuminated. Advertiser shall have the right of access to its advertising panels at all reasonable times for the purpose of replacement or removal of the same or to modify, change or alter the advertising appearing thereon at Advertiser's cost and at its discretion. City further agrees that for the entire Term, there shall be no alteration of Advertiser's advertising in the Facilities without Advertiser's consent in writing, that no advertising or structures shall be permitted to obstruct the view of Advertiser's advertising. Should interior signage need to be draped or hidden for community events, the approval of the Advertiser will be obtained. Such approval will not be unreasonably withheld. City, as the owner of the signage, shall maintain the signage in good order and repair. f. City will use its best efforts to utilize and promote the sale of all versions of Products purchased from Advertiser in the Facilities, and via such methods as are chosen by City and/or its Concessionaires. g. City recognizes that Advertiser has paid valuable consideration to ensure an exclusive associational relationship with the Facilities and City with respect to Beverages and that any dilution or diminution of such exclusivity seriously impairs Advertiser's valuable rights. Accordingly, in the event another person or entity attempts, without Advertiser's consent, to associate its Beverages with the Facilities and City, or to suggest that Competitive Products are endorsed by or associated with the Facilities and City by referring directly or indirectly to the Facilities and City (all of which actions described in this subparagraph 4g. are sometimes referred to as "Ambush Marketing"), City will oppose such actions and take steps necessary (limited to: written complaints to the violating party and local media outlets and private and public cease and desist announcements) to stop the Ambush Marketing and to protect the 3 exclusive associational rights granted to Advertiser by City in this Agreement. In the event any such Ambush Marketing occurs during the Term, immediately upon learning thereof, each party shall notify the other party. In no event will City be required to institute legal action under this subparagraph 4g., however, if City's approval or joinder is necessary to any such legal action instituted by Advertiser, City will approve a joinder to such action. 5. Public Address Announcements/Print a. During the Term, Advertiser shall receive a minimum of one (1) advertising spot aired on the message center per hour to total thirty-seconds (:30) per hour. b. All print advertising published by the Facilities shall include approved renditions of Advertiser's logo, other than advertising placed in national publications. 6. Tickets The City shall make available to the Advertiser at its ticket facility ten (10) premium complimentary tickets to all public events held at the Facilities for which the City handles the ticketing so long as the event is not sponsored by community groups. Tickets not claimed by the Advertiser at least twenty-four (24) hours prior to any performance are no longer reserved for the Advertiser. Advertiser shall have the option to purchase six (6) premium adjacent seats at the face value when the complimentary tickets are claimed. For performances sponsored by local community groups for which the City handles the ticketing, four (4) complimentary tickets shall be furnished and two (2) adjacent tickets may be purchased at least twenty-four (24) hours prior to the event. 7. Competitive Products During the entire Term and any renewal or extension thereof: a. No Competitive Products may be sold, dispensed or served anywhere in the Facilities. b. No permanent or temporary advertising, signage or trademark visibility for Competitive Products, will be displayed or permitted anywhere in the Facilities, including locker rooms and players' benches without approval of Advertiser. c. No agreement or relationship will be entered into or maintained by City pursuant to which Competitive Products are associated in any manner with the Facilities in any advertising, promotional activity or other endeavor which creates or tends to create the impression of a relationship or connection 4 between Competitive Products and Facilities. 8. Injunctive Relief It is understood that the rights granted to Advertiser herein are special, unique and extraordinary and are of peculiar value, the loss of which cannot be fully compensated by damages in an action at law or any application of any of the other remedies described herein. Accordingly, in the event the Products are not made available as provided herein, or if any of the provisions concerning Competitive Products are not complied with, City acknowledges and agrees that Advertiser shall be entitled to seek and obtain equitable relief, including an injunction requiring City to comply fully with its obligations under this Agreement with respect to advertising or availability of Competitive Products or confidentiality. 9. Termination Either party may terminate this agreement for any breach of this Agreement upon the following conditions: a. Upon becoming aware of any breach which shall include, but not be limited to, the closing of any three of the facilities for thirty (30) days or more, the closing of the Civic Center for thirty (30) days or more or if the marquee is inoperative for thirty (30) days or more or if the products are discontinued in any of the Facilities, if any advertising is limited or if the Competitive Product Provision is breached, prior to exercising the right of termination the non offending party shall give to the other party notice in writing specifically stating the nature of the breach and the action necessary to cure the breach. The notice shall be addressed to the parties' address as shown in Paragraph 12, shall be sent certified or registered mail. b. If the alleged breach is not cured by the offending party within thirty (30) days of receipt of the notice of termination described herein, the non offending party may, at its option, take any and all actions to cure the default. c. If the non offending party does not take action to cure the default, such party may declare this Agreement to be terminated. The Advertiser, upon such termination shall receive a pro rata refund of any prepaid Sponsorship Fees or may, with the approval of City adjust the fee structure for the then remaining portion of the term and receive a pro rata refund to reflect the diminution in value of the rights granted hereunder to Advertiser. d. If the Advertiser breaches its obligations under Paragraph 3 hereof then City may exercise any legal remedy to recover the consideration due the City so long as City has not materially breached this agreement. 5 10. Rights After Expiration of Primary Term Should City decide to market similar advertising and product sales rights after termination of this Agreement, Advertiser will be provided opportunity to propose and/or bid for such rights. 11. Insurance City agrees to include the marquee constructed in part with the Sponsorship Fees paid hereunder as a covered facility on the property damage insurance carried by the City as the same may exist during the term of the Agreement. Should such marquee be damaged or destroyed, City may, at its option, replace or repair such marquee. In such event, the term of this Agreement shall be extended for a period of time equal to the period of time that the marquee is not available to Advertiser as herein contemplated. Should City decide not to replace or repair the marquee within a reasonable time, Advertiser shall receive a pro rata refund of any prepaid Sponsorship Fees. 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 Advertiser: Austin Coca-Cola Bottling Company d/b/a Beaumont Coca-Cola/Dr.Pepper Bottling Company 9600 Burnet Road P. O. Box 9140 Austin, Texas 78766 Attention: Director of Prestige Accounts with a copy to: Coca-Cola Enterprises Inc. P .O. Box 1778 Atlanta, Georgia 30301 Attention: General Counsel 6 and to: Beaumont Coca-Cola Bottling Company P. O. Box 3547 Beaumont, Texas 77704 If to City: City Manager The City of Beaumont P. O. Box 3827 Beaumont, Texas 77704 13. Agreement Approval Each party hereby represents and warrants that all necessary approvals for this Agreement have been obtained, and the person whose signature appears below has the authority necessary to execute this Agreement on behalf of the party indicated. 14. 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. For purposes of this Agreement, the sale or transfer of ten percent (10%) or more of the assets or business of the Facilities by City is an assignment. Notwithstanding the foregoing, Advertiser shall be entitled to assign its rights and obligations under this Agreement pursuant to the sale of substantially all of Advertiser's assets. 15. 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. This Agreement may be amended only in writing signed by each of the parties hereto. 16. 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. 7 17. 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 the parties and no party shall have the authority to bind the other in any respect. 18. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. 19. Retention of Rights City shall not obtain, by this Agreement, any right, title or interest in the trademarks of Advertiser or The Coca-Cola Company, nor shall this Agreement give City the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Advertiser or The Coca-Cola Company. 20. 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. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date first above written. Austin Coca-Cola Bottling Company d/b/a City of Beaumont, Texas Beaumont Coca-Cola Bottling Company/Dr Pepper Bottling Company By: By: Printed Name: Printed Name: Title: Title: Date: Date: 8 EXHIBIT A Whenever used in this Agreement, the term "Beverages" shall mean: a. all carbonated and noncarbonated, natural or artificially-flavored nonalcoholic beverages for independent consumption and for use as mixers with alcoholic beverages and otherwise, including, but not limited to: nonalcoholic beverages with nutritive or non-nutritive sweeteners; flavored and/or sweetened mineral water; natural or artificially flavored nonalcoholic fruit juices; fruit juice-containing drinks; fruit-flavored drinks (sweetened or unsweetened); fruit punches and ades; hypertonic, hypotonic and isotonic energy and fluid replacement drinks (sometimes referred to as "sports drinks"); and b. all drink or beverage bases, whether in the form of syrups, powders, crystals, concentrates or otherwise, from which such drinks and beverages are made. c. The term "Beverages," however, shall not include coffee, tea (either hot or cold) and punch. 9 Tradc-mart(a)'; CL.-6 mom- }