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CONCESSIONAIRE AGREEMENT
This Concessionaire Agreement (" Agreement") dated as of the 1st day of October, 2021 (" Effective Date"), is made and entered into by CITY OF CATHEDRAL CITY, a California charter city and municipal corporation (" City"), and KICK BACK CINEMAS CATHEDRAL CITY, LLC, a California limited liability company (" Kick Back Cinemas").
Hereafter, City and Kick Back Cinemas may sometimes be referred to individually as a" Party," and collectively as the " Parties."
RECITALS
WHEREAS, City is the owner of certain improved real property known as the Cathedral City Community Amphitheater, located in Cathedral City, County of Riverside (" County"), State of California (" State"), which is more particularly described on Exhibit " A" attached hereto and incorporated herein by reference (" Property"); and WHEREAS, Kick Back Cinemas desires an agreement for exclusive access and use of portions of the Property for the purpose of conducting the Permitted Activities; and City has agreed to grant Kick Back Cinemas such accessto and use of portions of the Property, subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the mutual covenants contained herein, the Parties agree as follows:
1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits:
a) " City Event" means a function, party, dinner, show, performance, concert, pageant, parade, play, movie, festival or any other type of event designated by the City as a City Event, whether wholly or partially organized, hosted, sponsored or otherwise undertaken by the City on the Property.
b) " Concessions" mean only Popcorn (including flavored popcorns, such as but not limited to, kettle corn, caramel corn, and cheese popcorn), hot dogs, nachos, candy, chips, cookies, fountain or bottled soda, bottled drinks ( excluding beer, wine and other beverages containing alcohol), bottled water, coffee or other pre-packaged items sold at the Mary Pickford Theatre located at 36850 Pickfair Street, Cathedral City, CA 92234. c) " Concession Stand" means that portion of the Property more particularly described in Exhibit " B," which is attached hereto and incorporated herein by reference, which is improved with a structure commonly known as the concession stand where patrons can purchase Concessions.
d) " Hawk" means to offer for sale by a person walking on the Property, carryingConcessionsfor salein asuitablecontainerandcalling aloudin public. 1 RN# 4849- 3950- 2765 v5
e) " Third Party" means a person or group not affiliated with the Parties renting the Property.
f) " Third Party Event" means a function, party, dinner, show, performance, concert, pageant, parade, play, movie, festival or any othertype of eventdesignatedby the City as a Third Party Event, whether wholly or partially organized, hosted, sponsoredor otherwise undertaken by a Third Party on the Property.
2. Grant of License: Scope. City herebygrants to Kick Back Cinemas, its officers, employees, agents, and representatives ( collectively, the " Kick Back Cinemas Parties"), a license to use the ConcessionStand solely for the Permitted Uses set forth in Section3. This license includes the right of the Kick Back Cinemas Parties to access and have ingress and egress over the Property to the extent reasonably necessary for operation of the Concession Stand. a) No Lease or Easement. Kick Back Cinemas agrees that the rights granted hereunder do not constitute a lease of any portion of the Property or Concession Stand, nor create or vest in Kick Back Cinemas or the Kick Back Cinemas Parties a leasehold estate, easement, or anyotherrealproperty interestin or to anyportion of thePropertyor ConcessionStand. b) Needed Access. City shall provide to Kick Back Cinemas such identification,badges, tickets or passesrequiredfor entry into the Propertywhenbeingutilized for a City Eventfor thepurposeof permitting the Kick Back CinemaPartiesto have accessto andto operate the Concession Stand and to otherwise Hawk Concessions during the City Event. City shallalsoprovidefour( 4) complementaryticketsto Kick BackCinemasfor eachCity Event.
3. Permitted Activities. Subject to the terms and conditions set forth in this Agreement and all local, state and federal laws and regulations, Kick Back Cinemas shall use the ConcessionStandduring the Term of this Agreementsolely for the following purposes, andfor no otherpurposes, unlessagreedto in writing in advanceby City in its soleand absolutediscretion collectively, the " Permitted Activities"):
a) During City Events, the sale of Concessionsfrom the ConcessionStand, and the Hawking of Concessionson the Property, unless Hawking is otherwise restricted or prohibitedby theCity for specificCity Events;
b) During Third Party Events, the sale of Concessionsfrom the Concession Standandthe Hawking of Concessionson the Property, unlessHawking is otherwiserestrictedor prohibitedby theorganizerof theThird PartyEvent.
4. Term. The term of this Agreement will commence on October 1, 2021 at 7: 00 a. m., or upon the City' s issuance of a certificate of occupancy for Property ( including the Concession Stand)( the" Commencement Date") and will expire on December 31, 2022 at 11: 59 p. m. (" Termination Date"). The period between the Commencement Date and Termination Date shall be referred to collectively as the" Term."
5. exclusive Right to Sell.
a) At City Events. Subject to City' s reserved rights, during the Term, Kick Back Cinemas shall have the exclusive right to use the Concession Stand to sell Concessions and to Hawk Concessions( unless otherwise restricted or prohibited by City as provided in Section 3) 2 RIV# 4849- 3950- 2765 v5
on the Property during City Events. At such times as Kick Back Cinemas is operating the Concession Stand during a City Event, and except as is expressly provided below, no Concessions ( as expressly defined in this Agreement) shall be sold or offered for sale by any other vendor on the Property. City reserves the right to permit other vendors to sell and offer for saleduring City Events, fountain or bottled soda, bottled drinks, bottled water, cookiesandchips only if offered as part of a meal combination and not as a single item sale) and any food or consumable items not included within the defmition of Concessions. Such vendors may include food trucks, local restaurants, caterers and similar vendors. b) Reservation of Rights in Event Service is Declined for City Event. In the event Kick Back Cinemas declines to, or is otherwise unable to, operate the Concession Stand and/or Hawk Concessions at a City Event as provided in Section 6, City reserves the right to contract with or otherwise retain the services of another concessionaire to operate the Concession Stand and to sell and Hawk Concessions during the City Event. In such event, Kick Back Cinemas shall have no right to payment from City or have any right to any of the revenues generatedfrom suchsalesatthat specificCity Event.
c) Third Party Events. Kick Back Cinemas may, but is not obligated to, and does not have any right ( exclusive or otherwise) to, operatethe ConcessionStand, to Hawk Concessionsor to provide cateringor otherfood andbeverageservicesat Third PartyEvents,but may do so by arrangement with the organizer of the Third Party Event and with the written permission of City. Cityreserves the right to make such arrangements with the organizer f any Third Party Event for Concessions, Hawking, catering or other food or beverage services as City and the organizer may agree upon.
6. Right of Refusal. The Parties agree that operation of the Concession Stand by Kick Back Cinemas at City Events is mutually beneficial to City and Kick Back Cinemas and as such Kick Back Cinemas shall make its best effort to operate the Concession Stand for City Events. Kick Back Cinemas shall be notified of booked City Events at least twenty( 20) days prior to the event. Kick Back Cinemas shall have the right to decline to open and operate the Concession Stand or to Hawk Concessions at any City Event which City anticipates will not draw at least 100 guestsper hour at the City Event.
7. License Fee. During the Term of the Agreement, Kick Back Cinemas shall pay to City a license fee (" License Fee") in the amount of 40% of the Net Receiptsfor eachCity Event and Third Party Event which Kick Back Cinemas operates the Concession Stand. Net Receipts shall be defined as Gross Sales Receipts of Kick Back Cinemas from all sources at the City Event minus the sum of sales tax, cost of goods, and a monthly internet connection for the Concession Stand not to exceed $200 per month, prorated per City Event per Month. An accounting of sales from each event, along with documented expenses and payment in U. S. dollars, shall be made within 30 days of the end of each event.
8. Right to Negotiate Product Prices with Third Party. Kickback Cinemas shall have a right to directly negotiatethe price of Concessionswith any Third Party of the Property sold during Third Party Events.
9. Exclusive Pepsi Beverage Agreement. During the Term of the Agreement, Kick Back Cinemas shall purchase soda products and other covered beveragesusing the City' s account code per the City' s Beverage Agreement with Pepsi Co., attached hereto as Exhibit C." Kick Back Cinemas is responsible for all payments of soda products utilized in the 3 RIV# 4849- 3950- 2765 v5
Concession Stand. All rebates earned for sale of covered beverages made on the premises will be paid to City and Kick Back Cinemas shall not have claim to these funds. Kick Back Cinemas acknowledges that they have read and understand the terms of the Pepsi Beverage Agreement in Exhibit " C."
Initials
10. Health Permit. Kick Back Cinemas shall be responsible, at its sole expense, to obtainandmaintainavalid healthpermit for operationof the ConcessionStandduring theTerm of this Agreementasrequiredby RiversideCounty, including but not limited to, food handlerscards.
This expenseshall not be deductedasan expensefrom GrossSaleswhen determiningthe License Fee. Fees associated with plan check and construction of the Concession Stand will be the responsibility of the City.
11. Maintenance and Use of Concession Stand. Kick Back Cinemas agrees to maintain the Concession Stand in a neat and clean condition free of all debris, trash and refuse.
Kick Back Cinemas shall comply with all applicable laws, codes, ordinances, and other City requirements specific to the Permitted Activities, or affecting the cleanliness, safety, occupation, and use of the Concession Stand during the Term. Kick Back Cinemas covenants that no hazardous, toxic, flammable, or explosive material shall be permitted or released within the Concession Stand, as further set forth in this Agreement. Kick Back Cinemas shall not commit or suffer any nuisance upon or about the Concession Stand. In no event may Kick Back Cinemas conduct business other than as expressly provided in Section 3, above. Kick Back Cinemas shall be fmancially responsiblefor any damageor maintenancecostscausedby his/her negligence.
City shall be responsible for routine building maintenance. " Routine building maintenance" shall include, but not be limited to, structural repairs, plumbing and electrical repairs.
12. Cleaning Deposit. Upon execution of this Agreement by both Parties, Kick Back Cinemas shall either ( a) pay to City the amount of One Thousand Dollars ($ 1,000. 00) as a security and cleaning deposit (" Deposit"); or ( b) install within thirty ( 30) days inside of the Concession Stand permanent shelving, counters, and/ or equipment or other tenant improvements of equivalent value to the Deposit amount, all of which must be approved by the City in writing in advance of installation, and all of which shall be considered to be permanent fixtures to the Property (" Fixtures"). Upon expiration or termination of this Agreement. if Kick Back Cinemas fails to timely comply with Section 17 of this Agreement then City may use the Deposit, or any portion thereof, to pay for the removal of such personal property or equipment or for the cleaning and repair of the ConcessionStand. Any amount of the Deposit not used by the City shall be returned to Kick Back Cinemas. If no Deposit was made, or if such Deposit was not adequate to cover the cost of the cleaning or repair, then City may pursue such legal and equitable remedies against Kick Back Cinemas as are available to City.
13. Modifications to the Property. Kick Back Cinemas may not make any material or permanent modifications to the Concession Stand without the City' s prior written approval, which City may give or withhold in its sole and absolute discretion. If approved, all work undertaken by Kick Back Cinemas or its contractors, subcontractors and other agents in connection with the modifications shall be undertaken and completed in a good and workmanlike manner by professional, licensed and qualified personnel and contractors. Any fixtures installed by Kick Back Cinemas that cannot be removed without damage to the Property, or that remain on the Property after the expiration or earlier termination of this Agreement shall, at City' s option and without payment or other compensation to Kick Back Cinemas, become the sole property of 4 RIV# 4849- 3950- 2765 v5
City upon such expiration or termination. Any non-affixed equipment and all furnishings shall be retrieved by Kick Back Cinemasat the end of the Term and Kick Back Cinemasshall fully repair any damage caused by such removal.
14. Provided Equipment.
a) City shall provide at its own expense, within the Concession Stand for use by Kick BackCinemasthefollowing: anice machine,PepsiSodaTowers,power plugs, electricity, internet service, water, hot water, sewer, restroom, and menu board signage. b) Kick Back Cinemas shall provide at its own expense, point of sale terminals, needed interior shelving and tables, hot dog grills, microwave oven or portable convection oven, popcorn popper, cheesemachines, condiment dispensers, and any other needed equipment that may be usedto sell Concessionsnot identified in subsection( a) above.
15. Maintenance of Eauinment. During the Term of the Agreement Kick Back Cinemas shall be responsible for maintaining and cleaning of City' s equipment in the Concession Stand.
16. Utilities. The cost of all utilities will remain the responsibility of City.
17. Surrender; Obligation to Remove Personal Property. Upon the expiration or earlier termination of this Agreement, Kick Back Cinemas shall surrender the Agreement to City and return possession of the Property to City in substantially the same condition as it exists on the Effective Date. Kick Back Cinemas shall also be responsible for removing any and all personal propertyor equipment belon ing to Kick Back Cinemas and to leave Concession Stand in a neat and clean condition.
18. Insurance. From and after the Commencement Date, and continuing thereafter until the expiration or sooner termination of the Term, Kick Back Cinemas shall carry and maintain, at its sole cost and expense, the following types of insurance in the amounts specified and, in the form hereinafter provided for:
a) Commercial or comprehensive general liability insurance ( including bodily injury and property damage) in an amount of not less than a single limit per occurrence of One Million Dollars($ 1, 000, 000) and One Million Dollars ($ 1,000,000) aggregate, insuring City and its principals, officers, employees, agents, contractors, lenders, and insurers ( collectively, City Parties") against any and all loss and liability arising out of Kick Back Cinemas' or the Kick Back Cinemas Parties' use of the Concession Stand. b) Workers' compensation for Kick Back Cinemas' employees in the amount required by law.
c) Any other form of insurance for risks and/or perils against which a prudent person would protect itself and as are customarily obtained by Cities of similar operations in the State of California, including fire and casualty insurance, and/or increases in the amounts of coverage under any or all of the liability or other insurance policies carried by Kick Back Cinemas to the extent commercially reasonable and typically obtained by Cities of similar operations.
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d) As an express condition precedent to Kick Back Cinemas' first use of the Concession Stand for any purpose, Kick Back Cinemas shall furnish to City properly executed certificates of insurance and endorsements to those policies as required herein, and copies of its policies of insurance. Such policies shall clearly evidence all coverage required of Kick Back Cinemas and hereunder shall have commercially reasonable deductibles and shall provide that such insuranceshall not be materially changed, terminated or allowed to expire at any time during the Term. All policies obtained by Kick Back Cinemas must be primary and non- contributing with any policies that City may elect to obtain and must contain waiver of subrogation provisions acceptable to City. All policies required hereunder must be endorsed to name City and the City Parties as additional insureds and copies of those endorsements must be provided to City. All policies shall be issued by insurers qualified to do business in the State of California whose financial strength is acceptable to City in its reasonable discretion and shall be in a form reasonably satisfactory to City.
e) Kick Back Cinemas acknowledges that neither it nor any of the Kick Back CinemasPartieswill be subjectto coverageunder anypolicy of insurancethat City may elect(in its sole and absolute discretion) to obtain.
19. Indemnification.
a) General Indemnification. Except to the extent attributable to City' s sole gross negligence or willful misconduct, City shall not be liable to Kick Back Cinemas or Kick Back Cinemas Parties for any damage to Kick Back Cinemas or Kick Back Cinemas Parties ( or to Kick Back Cinemas' or the Kick Back Cinemas Parties' property) from any cause whatsoever, including, without limitation, theft, mysterious disappearance, rodents, vermin and acts of God.
Kick Back Cinemas and Kick Back Cinemas Parties shall jointly and severably indemnify, protect, defendand hold harmlessthe Property, ConcessionStand, City or City Partiesfrom and against any and all actual or alleged claims, and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expensesand/or liabilities arising out of, involving, or in connection with, a Kick Back Cinemas Default or the use and/or occupancy of the Concession Stand by Kick Back Cinemas or the Kick Back Cinemas Parties or any act or omission of Kick Back Cinemas or the Kick Back Cinemas Parties. If any action or proceeding is brought against City or City Parties by reason of any of the foregoing matters, Kick Back Cinemas shall, upon notice, defendthe sameat Kick Back Cinemas' sole expenseby counselreasonablysatisfactory to City. The indemnification provided for in this Section shall survive the expiration or termination of the Agreement granted herein as to matters occurring or accruing during the Term or by reason of Kick Back Cinemas' or the Kick Back Cinemas' Parties' occupancy or use of the Property.
20. Compliance with Applicable Laws. Rules. and Regulations. Kick Back Cinemas represents, warrants, and agrees that it shall use and occupy the Concession Stand in compliance with all applicable laws, statutes, ordinances, rules, regulations, orders and requirements in effect during the Term, or any part of the Term hereof, which regulate use or occupancy by Kick Back Cinemas of the Concession Stand or the conduct of the Permitted Activities. Kick Back Cinemas represents, warrants, and agrees that it and the Kick Back Cinemas Parties shall use and occupy the Concession Stand in compliance with all applicable Environmental Laws ( defined below). Kick Back Cinemas further warrants and agrees that it shall remediate and clean, to the extent required by Environmental Laws, applicable to its or the Kick Back Cinemas Parties' use of the Concession Stand, any spills or releases of Hazardous 6 RN# 4849- 3950- 2765 v5
Substances ( defined below), to the extent caused or contributed to by Kick Back Cinemas, or the Kick Back Cinemas Parties, or their respective agents, Kick Back Cinemas, invitees, and successorsand assigns' use or occupancy of the Concession Stand. a) " Environmental Laws" shall mean all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirementsof any government authority regulating, relating to, or imposing liability or standardsof conduct concerning any Hazardous Substance ( as hereinafter defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupationalhealth or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Concession Stand), occupational or environmental conditions on, under, or about the Concession Stand, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (" CERCLA") 42 U. S. C. A §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (" RCRA") 42 U. S. C. A §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (" FWPCA") [ 33 U. S. C. A §§ 1251 et seq.]; the Toxic Substances Control Act TSCA") [ 15 U. S. C. A §& 2601 et seq.]; the Federal Insecticide, Fungicide, Rodenticide Act [ 7 U. S. C. A §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [ 42 U. S. C. A &§ 9601 et seq.]; the Clean Air Act [ 42 U. S. C. A §§ 7401 et seq.]; the Safe Drinking Water Act [ 42 U. S. C. A && 300f et seq.]; the Solid Waste Disposal Act [ 42 U. S. C. A §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [ 30 U. S. C. A && 1201 et seq.]; the Emergency Planning and Community Right- to- Know Act [ 42 U. S.C. A §§ 11001 et seq.]; the Occupational Safety and Health Act [ 29 U. S. C. A && 655 and 657]; the California Underground Storage of Hazardous Substances Act [ Health & Saf. Code §§ 25280 et seq.]; the California Hazardous Substances Account Act [ Health& Saf. Code §§ 25300 et seq.]; the California Hazardous Waste Control Act [ Health & Saf. Code &§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [ Health & Saf. Code §§ 25249. 5 et seq.]; the Porter- Cologne Water Quality Act [ Wat. Code §§ 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Concession Stand, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
b) " Hazardous Substances" shall mean and include ( a) those substances included within the definitions of " hazardous substance," " hazardous waste," " hazardous material," " toxic substance," " solid waste," or " pollutant or contaminant" in CERCLA, RCRA, TSCA, or under any other Environmental Law; ( b) those substances listed in the United States Department of Transportation ( DOT) Table [ 49 C. F. R. 172. 101], or by the Environmental Protection Agency ( EPA), or any successor agency, as hazardous substances [40 C.F.R. Part 302]; ( c) other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (d) any material, waste, or substance that is ( i) a petroleum or refined petroleum product, ( ii) asbestos, iii) polychlorinated biphenyl, ( iv) designated as a hazardous substance pursuant to 33 U. S. C. A § 1321 or listed pursuant to 33 U. S. C. A § 1317, ( v) a flammable explosive, or ( vi) a radioactive material.
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21. Events of Default: Termination. The material breach of any provision of this Agreement by Kick Back Cinemas shall constitute a default and material breach of this Agreement (" Default"). In the event of a Default by Kick Back Cinemas, City ( in addition to any other remedies available at law or in equity), at its option, and without further notice to Kick Back Cinemas, shall have the right to ( i) terminate the Agreement and all rights of Kick Back Cinemas in or to the Property; ( ii) take full possession of the Property; and ( iii) remove all of Kick Back Cinemas' equipment, facilities and other personal property from City' s Property and either deliver the same at Kick Back Cinemas' cost or place it in storage for Kick Back Cinemas' account and give Kick Back Cinemas notice of the location of the same. In such event, neither Party shall have any further rights or obligations hereunder.
22. Non- Assignment. This Agreement shall not be assigned or otherwise transferred by Kick Back Cinemas, nor may any portion of the Property sublicensed by Kick Back Cinemas, without City' sprior written approval,which City may withhold in its soleandabsolutediscretion.
23. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: ( a) certified or registered mail, postage prepaid, return receipt requested, (b) personal delivery, or ( c) a recognized overnight carrier that provides proof of delivery, and shall be addressedas follows:
If to City : If to Kick Back Cinemas:
City of Cathedral City Kick Back Cinemas Cathedral City, LLC Attn: City Kick Back Cinemas Attn: Damon Rubio
68- 700 Avenida Lalo Guerrero 354 Rimhurst Court
Cathedral Ci CA 92234 Oceanside, CA 92058City,
Notices shall be deemed effective upon receipt or rejection only.
24. No Recordation. This Agreement may not be recorded.
25. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid, illegal, or unenforceable, then such portion shall be deemed severed from this Agreement and the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely aspossible the original intent and purpose of this Agreement.
26. Entire Agreement: Amendment. This Agreement contains the entire agreement between the Parties with respect to the subject matter herein and supersedes any and all prior or contemporaneous negotiations, correspondence, or oral or written agreements between the Parties. No supplement, amendment, or modification of any provision of this Agreement shall be effective unless it is in writing and executed by both Parties.
27. Independent Contractor. In the operation of the Concession Stand granted by this Agreement, Kick Back Cinemas is an independent contractor and is not an agent or employee of City. Kick Back Cinemas, its officers, employees, agents, and subcontractors, if any, shall have no power to bind or commit City to any decision or course of action, and shall not represent to any person or business that they have such power. Kick Back Cinemas has and shall retain the right to exercise full control of the supervision of the services and over the employment, direction, compensation and discharge of all persons assisting Kick Back Cinemas 8 RN# 4849- 3950- 2765 v5
in the performance of this Agreement. Kick Back Cinemas shall be solely responsible for all mattersrelating to the paymentof its employees, including compliancewith social security and income tax withholding, worker' s compensation insurance and all other regulations governing such matters.
28. Records and Audits. Kick Back Cinemas shall permit City and its authorized representatives to inspect and examine Kick Back Cinemas' books, records, accounts, and any and all data relevant to this Agreement at any reasonable time for the purpose of auditing and verifying statements, invoices, or bills submitted by Kick Back Cinemas pursuant to this Agreement and shall provide such assistance as may be reasonably required in the course of such inspection. City further reserves the right to examine and re-examine said books, records, accounts, and dataduring the three (3) year period following the termination of this Agreement and Kick Back Cinemas shall in no event dispose of, destroy, alter or mutilate said books, records, accounts and data in any manner whatsoever for three ( 3) years after the termination of this Agreement.
29. Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same Agreement.
30. Governing Law. This Agreement shall be governed by and construed in accordance with the procedural and substantive laws of the State of California, without regard to its conflicts of laws principles. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venueshall lie exclusivelyin theCentralDistrict of California, in Riverside.
31. Attorneys' Fees. In the event of a suit by either Party against the other arising out of this Agreement, the prevailing Party shall be entitled to recover from the other Party all reasonable costs and expenses of suit, including attorneys' fees and the fees of other professionals.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY": KICK BACK CINEMAS":
City o Ca al C' , Kick Back Cinem. athedral City, LLC By qk ._; . A By:
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A
Charles P. McClendon Name:
City Manager Its: ; .' f r1
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EXHIBIT " A"
DEPICTION OF PROPERTY
Cathedral City Community Amphitheater
68-526 Avenida Lalo Guerrero, Cathedral City, CA 92234
Located on the Northeast corner of Cathedral Canyon drive and Avenida Lalo Guerrero z•,
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EXHIBIT " B"
CONCESSION STAND AREA
Concession Stand located within the Cathedral City Community Amphitheater located at 68-526 Avenida Lalo Guerrero, Cathedral City, CA 92234
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EXHIBIT" C"
PEPSI BEVERAGE AGREEMENT
PEPSI BEVERAGES COMPANY
BEVERAGE SALES AGREEMENT
Thissetsforththeagreement("Agreement')betweenBottlingGroup,LLC,aDelawarelimited liabilitycompany,anditsaffiliatesand/orrespectivesubsidiariescollectivelycomprisingPepsiBeveragesCompanywithanofficelocatedat6659SycamoreCanyonBlvd., Riverside, CA 92507("Pepsi")andCathedralCity,withitsprincipalplaceofbusinessat68700AvenueLalo Guerrero, CathedralCity, CA92234onitsownbehalf,onbehalfofitsaffiliate+andwholly- ownedsubsidiaries, andon behalfof its individualfranchiseesandlicensees, if any (theCustoms'". Thesupportdescribedbelowis in lieu of anyotherdiscounts, allowancesor rebatesto whichtheCustomermightotherwisebeentitledfromtimeto time. Whenfully executed,thisAgreementwill constituteabindingobligationof bothpartiesuntilexpirationor termination.PepsiandCustomeraresometimeshereinafterindividuallyreferredtoas"Party"orhereinaftercollectivelyreferredto asthe" Parties." Definitions
As usedin this Agreement, the followingcapitalizedtermshavetherespectivemeanings assigned thereto below.
Beverage" or "Beverages" meansall carbonatedandnon-carbonated, non-alcoholicdrinks, howeverdispensedduringtheTermof theAgreement. "Beverage" or"Beverages"excludes bottledwater,alcoholicbeveragesandcannabisinfusedbeverages.
Cases"meanscasesofPackagedProducts (asdefinedherein)purchasedbyCustomerfrom PepsiduringtheTerm,initiallydeliveredinquantitiesof24plasticbottles,aluminumcans,glass bottles(orequalized24packcases,e.g.,two12-packcases),eight2-literplasticbottles,orsuch othersize,quantityandtypeof containersasPepsimaymakeavailablefromtimetotimeduringthe Term.
CompetitiveProduce" meansanyandall BeveragesotherthantheProducts.
Equipment'meansequipmentloanedbyPepsitoCustomertodispense,storeorcoolProducts asdefinedbelow),asmorefully describedfn Section4 herein.
Gallons"meansgallonsofthePoatmnrProductspurchasedbyCustomerfromPepsiduringthe Term.
Outlets"meansexisting, futureandafter-acquired(providednotalreadyunderapre-existing beverageagreementwithPepsi) outletsowned, operated, managed, leasedorfranchisedby CustomerundertheCathedralCitytrademark[s]aslistedinattachedExhibitA(andanyrelated or similartrademarks, includinganysuccessortrademarks) includingtheparkinggaragesor otherCustomer-owned/controlled/operatedsurroundingareaslocatedatorwithinthosefacilities andshallincludeanyoutletorotherfacilityin Customer's systemthatmaybeopenedor acquiredbyCustomernoworinthefuture,includingunderdifferentconceptand/ortrademark duringtheTerm.ThisexcludesbeverageswithinCityHall,andCityparkpropertiesorfacilities, 6575- 1
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C i PEPSIBEVERAGESCOMPANY
unless the Partiesmutually agreeto identify additional Outlets inanupdated Exhibit A.
Ibckllgal hotl uctY" means Beverages that are sold or distrDutcd by Pepsi in pre- packaged form( eg.,bottles and cans).A currattlist of Pepsi'sPackagedProduclll islisted in attached Exhibit B which maybeamended by Pepsifrom time to time.
Postalix Protbu: is" means Beverages 901d 11J1d/ordistrbuted by Pepsiand used to create and prepare fountain beverages, frozen carlxmated ornon- carbonated beverages. A current list of Pepsi's Postmix Products is listed in attached Exhibit B which may be amended by Pepsi from time to time.
Prodllcls" means Postmix Products, and Packaged Products.
Ynr(a)" means each 12-month period during the Term commencing on the first day of the Term or an anniversary thrreot:
L 111II
1 hctermofthisAgreementwillcommenceonDecemberIS, 2019andthetmmwillexpireupon the later of five( S) Ycrs or at such time as Customer' s collective purchases ofProducu meets or exceedsa volume threshold( the"' ibhuru 7'hm/UJII')of 12,250 Cases( the" Tmty or if terminated pursuant to Section 6( B) o fthis Agreement. Thus, inthe event the VolumeThreshold isnotmetonorbeforethe dateindicatedabove,thenthe Tmn will automatically extendforthe periodoftime nccessary until theVolumeThresholdhasbeen met(the'AuttHlUlticExtmsionj.
Exceptforapplicable Rebates,which maybeeamedduringtheAutomaticExtension,Pepsiwil I not provide anyotherfundingtoCustomer.
2. Performance
This Agreement,includingall of Pepsi'ssupporttoCustomerasdesciil>edbelow.iscontingent upon Customer complying, throughout the Term, with all of the following perfonnance criteria:
A) Exdusivity. Pepsi is the exclusive Beverage supplier to Customer' s Outlets. Customer aiJ:eestotakeallnecessarystepsto ensurethattheProducts aretheexclusiveBeveragesof their respective types sold, dispensed or otherwise made available, or in any way advertised, displayed, representedor promoted at or in connection with the Outletsby my method or throughany medium whatsoever ('including without limitation print, broadcast, direct mail, coupons, handbills, displays and signage), whether public orprivate. The Outlets will not aerve, dispense or otherwise make available or permit the availability of or in any way advertise, display,representorpromote, Beverageproducts licensedby,or produced by bottlers 1icemed by, The Coca- Cola Company or any affiliate thereof, or any other supplier of Competitive Products.
B) Purchase of Produds. Customer agrees to purchase, and require its Outlets and purcbaaingrepresentatives topurchase, Beverage Products exclusively and directly from Pepsi. 6S1S- 1
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C) Fountain Products. Customer agreesto use the Poslmix Products for use inpreparing the fountain beverage products( the' F' ounlldn Pro" 11 cts).( i) in accordance with the standards established by Pepsi and( n)only for immediateor imminent consumption; Customeragreesnot toresellthePostmix Productseitherto I!Ollaffiliated outlets or to consumersin anyform other than theFountain Products.
ct Andllary Product. Customer agrees to purchase, and require its purchasing representatives to purchase all their respective rcquirem. cnts for carbon dioxide and bnmdcd disposablecups\.A.ncilltuyProdllcd9exclusively ftom Pepsi.
E) Advertising Rigtts. Pepsi may advertise and promote its Products in and with respectto Custom.erandits Outletsuponmutually agreedto termsandconditions. Inaddition, Customer mustdisplay appropriatebrand identification for eachProduct servedon allmenus(including catering and digital), menu boards and postmix dispensing valves at each of the Outlets throughout the Term.
F) Changes hi Outlet(). Customer will promptly notify Pepsi, inwriting, of any Outlet which isclosed, soldor otherwise disposedofdwing the Tennsothat thePartiesmay promptly update Elllbit A.
G) Product Mn; Minimum SKU' Brud Requirement. Customer must mandate the distribution of a minimum core assortmentof Products, including a mix of both Postmix Products mid PackagedProducts at eachofthe OutletsthroughouttheTenn,asidentified by Pepsi. based on F.quipment type atthe Outlets.
H) Realrictionl for Products. The Parties recognize and agree that there are certain additional territorial restrictions that pertain to the purchase and resale of the Products. To the extentanyprospectiveOutlet(s)arebcatedoutsidetheterritories servicedby Pepsi,thenPepsi may, upon request by the Customer, use commercially reasonable efforts to fiu: ilitatc an agreementbetweenthePepsi-Colabottler servicingthe applicableterritory andtheCustomer with tamsflUbstantially similar tothetermsof thisAgreement. Fwthermore,Customeragrees not to disM'bule or resell theProducts,directly cr indirectly, outsidethe territories serviced by Pepsiandshallcauseitspurohasingrepresentativetoabidebysuchterritorialrest fictions.
3. Funding
Provided Customer is not in breach of this Agreement, Pepsi agrees to provide Customer with thefundingdescribedbelow.
A) Annual Sponaonhip Support Fundi. Pepsi agrees to provide Customer with annual sponsorshipsupportfunds inthe 11D1OUDtof SevenThousandUS Dollars($ 7,000),payableto Customerwithin ninety( 90)daysafterthelater of( i) thefirst dayof the Term or(} thesigning of this Agreement by both Parties( the ". A. nnulll Sponsorship Support Frutb'). The Annual Sponsorship Support Fllllds areearnedby Customerover theTmn andmay be iacreasedto include additional Outlets acquiredby Customer. In the event of early termination for any reasonothel" than anuncuredmaterial breach by Pepsipursuantto Section6(A) herein, the 6575- 1
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unearned Annual SponsorshipSupportFunds will berepaidto Pepsipursuanttothetermsof Section 6(B)n herein. The funds will used to sponsor the following events listed.$ 1,000- Cathedral City Hot Air Balloon Festival, $ 1000- North Pole Mllage at Snow Fest,$ 11)00- Movies in the Park, S1,000- Taste of Jalisc.o Festival,$ 1,000• Cathedral City LGBT Days, 1000- EasterKidapalooza,$ 1,000- East Palm Canyon BannerProgram.
B) Marketing Support. Each Year during the Term, Pepsi will provide Customer with marketing support, valued et up to Two Thousand Five HUDdred US Dollars ($ 2,500) C'Markding Support). The Marketing Supportwill be usedand spentby Pepsitopay for umbrellas and ice barrels,asmutually agreedtoby theParties.Customeracknowledgesand agreesthat unused Marketing Supportin anyYcarwill notbecarriedoverto asubsequentYear andwill notbe redeemable for a cashpayment.
C) Rebates. Each Year throughout the Tenn, Pepsi agrees to calculate the total number of eligible Casesand Gallons purchasedby each of the applicable Outlets from Pepsi purBU8Dt to this Agreement, and willprovide Customer with rebates calculated based on applicable rates set forth below( the" RelHltd). The Rebates, as applicable, will be paid by Pepsi within sixty( 60) days after the end of eachYear. The Parties agree that Pepsi will notaccrue orpay any Rebates for sales to Outlets that are in breach of the Performance Recuiremerts listed in Section 2 above. to""... I
yu@ble Products- .
2. 00/ Gallon All Postmix. PrUducts, Crush, Dr Pepper,El Nino and Lipton leed Tea
2. 00/ Case** ; All CSDs as noted in Emibit B
Thefollowing YrOdUCtS area.eludedfromRebates:12and24oz.CSDs,169Aquafina 24- pk or uivalent( e.g., two( 2) 12.pk)
D) Commfssion1Pepsi shall provide Customer with commissions, as a percentage of the actualcashC'Clllh krbag'or"CIB')collectedbyPepsifromtheVendingMachinesplacedat the Outlets, less any applicable government-imposedtaxes/fees and deposits, as applicable C' Co.,,, lnions"). Such Commissions shall be at the rate( s) set forth below( the" Comrnmum t//) and shall be calculated as follows:
CIB* Comminion Rate)- applicable CRV- Commission due
Pr01ua bUdal 1' adl' i ke* RA U**
All 20oz.. r@,, rateCSDs 3.00 . . 35%
20 oz. Gatorade 3{) 0 3S%
20 oz. Aquafina 300 35%
PcpSi shall havethe right to increase ven I pnces my', 1. meac o ' ears t roug .
Commission Rates and Vend Prices for new Product will bemutually agreeduponby Pepsi t. a in ri 06. iston- zer
1) Commissions Payment. Pepsi shall pay Commissions to the Customer within thirty( 30) days ofthe end of each 4- weck accounting period established by Pepsi. Pepsi shall makeall pertinentrevenueandsalesrecordsrespectingthe Vending Machines 6575- 1
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availableto Customer. Customer agrees that it isresponsible forreviewing such rccotds andthatanyclaimordisputerelatingtothe Commissionsmustbebrou& ht by Customer in writing within one( 1) year of the date such Commissions payment is due. Customer further acknowledges andagreesthat it shall not receive any Commissions payment from Pepsi ifCommissions failto reach acertain threshold amountperperiod orquarter. The current threshold amounts are$ 50per four- week period or$ 75 per quarter. The threshold may berevised by Pepsi from time to time.
2) Change to Commission RaW/ Formula. Customer agrees that Pepsi shall have the right to change the Commission Rate and/ or its formula/ method for calculating Commissions asmay be required by applicable laws or asreasonablynecessaryto respond to legislative acts in order thattheCommissionRateremains costneutral. 3) Vend Price. The initial vend prices and minimum scheduled incmi. ses that are necessary for Customertoqualify for anyCommissionsaresetforthin theCommission chart above. Customer acknowledges that Pepsi has the right to pass through any incremental fees, deposits, taxes or other governmentally imposed charges( whether local, state,federal orjudicially imposed on manufacturers, distributors, CODSUIIICIIIor otherwise). Thepass-through of any suchgovenmmntally imposed fees, deposits, taxes or chargesonthe Productswill be in additionto anyacheduledVend Pricesincreases set forth herein ornotification restrictions that may be specified in this Agreement.
4. Euuinment and Service
A) Equipment. Pepsi will loan to the Customer, at no charge, appropriate Equipment for dispensing the Products at the Outlets. Customer agrees that the Equipment will be allusively usedtodisplayandmerchandisetheProductsasreasonablydeterminedby Pepsi,andsubjectto applicable local law, n] l.eorregulation. Customer willmt useth eEquipment to display, stock, advertise,sell or maintain anyotherproducts(includingontheexteriorofthe Equipment). Title to such Equipment will remain vested in Pepsi or its affiliate and Customer will return all Equipment to Pepsi upon expiration or earlier termination of this Agreement. At Pepsi' srequest, Customer will provide Pepsi with a written Equipment verification list indicating the 888Ct number, Equipment type and location of the Equipment loaned to Customer pursuant to this Agreement. To the extent that future technology enhancements, equipment platfonns or products to support these platfurms arc substantially different in scope or composition COl DparM to existing cquipmc: Ut components and products, Pepsi and Customer will work ingood faith to negotiate the economic teims for implementation ofthe new technology equipment.
B) Vending Machinet. With respect to the vending machine Equipment placed at the Outlets(the" VaulbtgMachina'), Pepsiwill havetheadditional responsibility for( i) stocking theVending MachineswiththeProducts and(ii) collecting, for itsown account,all cashmonies from the Veruling Machines and for all related accounting for collected monies. Customer agreesto provide reasonable assistance to Pepsi in apprehending and prosecuting vandals. Pepsi shall not be obligated to pay Commissions on docmnented revenue 1088esresulting from vandalism ortheft of Product with respect to any Vending Machines. Pepsi shall not be asl ICSsed common area maintenance fees, taxes or other charges based on its occupation of the space 116575- I
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allocated to its Equipment attheOutlets.
C) Senice. Pepsi will provide, at DO charge to Customer, preventative maintenance and service to the Equipment. Pepsi will also provide Customer with a telephone number to request emergencyrepairs and receivetechnicalassistancerelatedtothe F.qupmentafter businesshours.
Pepsi will promptlyrespondto eachCustomer request,andwill usereasonableefforaito remedy the related Equipment problem as soon as poSSIble, however because delays in service may be causedbyfactorswell outsideofPepsi'scontrol, Pepsi'sscrvic:crecord will bemeasuml inthe aggregate such that an isolated failure isnot amaterial breachofthe Agrec: m.ent.
5. Customer Will purchase, and will require that any third parties or purchasing representative for the Outlets to purchase, Products and Ancillary Products directly and exclusively from Pepsi pursuant to the pricing and terms and conditions set forth herein. The initial pricing schedule for Products is set forth on attached Ellibit B, which may be changed by Pepsi from time to time during the Term. Pepsi will be entitled to pass-through any incremental fees, deposits, taxes or othergovernmentally imposedcharges(whethertical, state, federal orjudicially imposedon manuftictures, distributors, consumers or otherwise). The pass-through of any such governmentally imposed fees, deposits, taxes or charges on the Products will not be subject to anypricingcap ornotificationrestrictionsthat maybespecifiedinthis Agreement
6. GeneralTen rrl
A) Terminadon for Default. Either Party may terminate this Agreement if the other commits a material breach of this Agreement; provided, however, that the taminating Party has given the other Partywritten notice of the breach and the other Partyhas failed to n: mcdyor cun:
the breachwithin thirty( 30) daysof suchuoticc. Iffor anyreasonCustomer closesoneor more Outlets or ifone or more Outlets breaches the Agreement, then Pepsi shall have the option, in lieu of termination of the entire Agreement, to( i) adjust Funding in Section 3 commensurate with the projected decline involume; % tenninate the Agreement only as it pertains to the sold, closed or brcacbing Outlet(s);. mid( iii) obtain an equitable reimbursement for the portions of Fuoding and other cosbi athibutable to such sold, closed or breaching Outlet(s). Notwithstanding theforegoing,thisparagraphwill notapply to seasonal Outlet dosureswith Pepsiprior written approval,such approval not to beunreasonably withheld.
Remedies. If the Tenn of this Agreement is terminated early for any reason other than an uncured material breach by Pepsi pursuant to subsection( A) above, the Customerwill surrender to Pepsi all Equipment provided by Pepsi and will forfeit all Funding not paid ss of the date of termination. Inaddtion, without prejudice to any other right or remedy available to Pepsi, Pepsi will have lhc right to immediately acck reimbursement from Customer and the Outlets for the following:
1) An amount reflecting reimbursement for all Fundingpreviously advancedby Pepsi but notearnedby Customerpursuant to thetermsof this Agreement. With regard to the Annual Sponsorship Support Funds, if any, the amount of such reimbursement will 0575- 1
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be the result of multiplying. the Animal SponsorshipSupportFundsbyafraction, the numerator of which is the numbec of months remaining in the Year in which the Agreement is terminated at the time such termination occurs and the denominator of whichis 12 ( twelve);
2) An amount reflecting reimbursementfor the cost of installation, serviceand refurbishing of Equipment provided during the Term and the cost of removal of all F. quipment that has beeninstalled inthe Outlets, as applicable; and 3) An amount as liquidated damages, for lost sales suffered by Pepsi as a resuh of such termination, equal to the sum of:( a) the product of$ 7 multiplied by the projected number of Gallons of Poshnix Prodicts that Customer would have been expected to purchase during the remainder of the Term based on the Volume Threshold and Customer' saverage annualized purchase rate and( b) theproduct of$ 10multiplied by the projected number of 24-pk case equivalents of Packaged Products that Customer would have been expected to purchase during the remainder of the Term based on the Volume Threshold and Customer' saverage annnaliud purchase rate.
C) Expiration. Upon expiration of this Agreement. if Customer has not entered into a further agreement with Pepsi for the purchase ofthe Products, Customer will summer to Pepsi all Equipment installed inthe Outlets.
D) Rpt of Offset. Pepsi reserves the right to withhold payments due hereunder as an offilet againstamountsnot paid by Customeror its Outlets for Products ordered from and deliveredbyPepsiandanyandall balancesdueandpayableto Pepsipursuanttothis.Agrccment.
E) Non- Disclosure. Except as may otherwise be required by law or legal process or as reasonablynecessaryfor eitherPartytoenforceitsrightshereunder,neitherPartywill discloseto UDI' Cllated third parties the terms and conditions of this Agreement without the consent of the other.
F) Alignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or otherwise transferred by either Party( whether by operation of law orothmwise) without the prior written consent of the other Party,provided, however, that Pepsi may assignand transferthis Agreement (in whole and not in part) to an affiliate without the coment of Customer hcRto ifsuch affiliate is( a) capable of fully performing all obligations of the assignor hereunder and( b) agrees, inwriting to perform all of the obligations and assumeall liabilities of the assignor hereunder. In the event that a third party acquires Customer or substantiallyall OutletsorifCustomer isacquiredor mergeswith athird party,Customerwill, in connectionwith suchtransaction,causethe acquiring party/magedentity, in writing, to ratify this Agreement and assume all of the obligations of Customer hereunder. In the event that Customer does not deliver written evidence of such ratification and assumption of this Agreementby theacquiring party or mergedentity within ten( 10)daysfollowing theclosingof the transaction. Customer will be in breach of this Agreement and Pepsi may, at its option, terminate this Agreementeffective immediately and Customer will pay to Pepsi all sums specified inSection 6( B) herein.
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G) Governing Law. The laws of the stateof California govern all matters arisingout of this Agreement.
H) Price Dthepancy. Any price discrepancy claim mustbe submitted t.o Pepsi within 36S daysofthe dateof the invoicein question. If Customermakesaprice discrepancyclaim within 90 days of the invoice date, Customer must submit a written request the particular Product, amount in dispute andreason forthe dispute. This request should be addressed to:
Accounts Receivable
Pepsi- Cola Customer Service Center
P. O. Box 10
Winston- Salem, North Carolina 27102
If Customermakesaprice discrepancyclaim from 91to 365 daysafterthe dateof invoice, in addition to the written request as specified above, Customer mnst submit to Pepsi acopy ofthe invoice inquestion,copiesof anycheckremittancespursuanttotheinvoice in questionand any additionalsupportingdocumentation.
1) Tu. Neither Pepsinor its affiliates will be responsiblefor any taxespayable,feesor other tax liability incurred by Customer in connection with the consideration or any other fees payableby Pepsi under this Agreement. IfPepsi ischarged common areamaintenanoc fees, taxes or other charges related to Pepsi' s occupation of the space allocated to its Equipment at the Outlets, Pepsi may makeanadjustmenttotheconsiderationprovided inSection4abovetooffset for such costs.
J) Force Majeure. Pepsiwilloot beresponsiblefor anydelay or lack ofdelivezy resulting directly or indirectly from any foreignor domestic embargo,productdetention, seizure,actof God, insurrection, war and/ or continwmcc of war, the passage or enactment of any law ordinaru: e, regulation, ruling, or order interfering directly or indirectly with or rendering more burdensome the purchase, production, delivery orpayment hereunder, including the lack ofthe usual means of transportation due to fire, flood, explosion, riot, strike or other acts ofnature or manthatarebeyondthe controlofPepsi orthatofthe suppliersto Pepsiunlesssuchcontingency is specifically excludedin anotherpartofth is Agreement. Subjectt.otheprovisionsbelow, this Agreement will be suspended as to both Product and delivery during any of the above force majeure contingencies. Any and all suspended deliveries will resume after such contingencies cease to exist, ifpossble, and this Agreement will resume in accordance wth its terms, unless otherwiseprovided for herein.
K) Waiver. No failure or delay of either Party to exercise any rigbm or remedies under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or anyother rights or remedies.
Any waiver must be in writing and signedby the Party waiving therights.
L) Relationship of theParties. ThePartiesareindependentcontractorswith respectto eachother.Nothing containedinthisAgreementcreatesajointventurepartnershipbetweenthe 6575- 1
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Parties.
M) Conll roction. CUstomer and Pepsi acknowledge that both Parties participated equally in the negotiation of this Agreement and that, accordingly, in intapret: ing this Agrmrumt, no weight shall be placed upon which Party hereto or its counseldrafted the provision being interpreted.
N) Notices. Any notice which either Party is respired or permitted 1D give herewider will be in writing, signed by the notifying Party and will be either delivery by hand or nationally- recognized overnight courier service or deposited in the United States mail, certified or registered mail, return receipt requested, postage paid, addressed 88 follows: If tn Customer, 1D the name and address set furth inthe preamble herein. If to Pepsi, to the name and address set forth in the preamble herein, with a copy thereof ID: PepsiBeverages Company, 1111 Westchester Avenue, White Plains, NY 10604, Attention: Law Department or to such addresses 88the Partiesmay subsequentlyprovide inwriting. Notice will be deemedto havebeen given when delivered by hand or nationally recognized overnight courier service, or when received as evidenced by the retum receipt. orthedate suchnoticeisfirst refused, ifthatbethe case. 0) Right of First Negotiation/ Refusal. As of the commencement of this Agreement until ninety( 90) days prior to the expiration of the Term, Customer hereby agrees to gnml Pepsi exclusive negotiation rights with respect to extending the current Agreement or entering into a new agreement for Beverage pouring rights at the Outlets upon expiration of the ctmmt Tenn.
Ifthe Partieshavenot entered into newagreementby the ninetieth daypriorto expiration of the Term, Customer will be free to enter into discussions/ negotiations with third parties except that Customer hereby grmts Pepsithe absolute right offirst refusal to match any bona fide offers made by athirdparty with respect to Beverage pouring rights/ sales atthe Outlets. Customer will provide Pepsi with details of any such bona fide offers, and Pepsi will have a fifteen( 15) day window to decide whether it wilt match such offer and exercise its right of first refusal. The Partiesagreethat beveragetype/category andnot brand nameswill be considered for the pw: poses of determining amatch. Inthe event that Pepsi declines 1D match such offer, or fails to respOnd within the fifteen( 15) day period, then Customer will be free to enter into anagreement with any third party based on turns and conditions equal or favorable to those presented to Pepsi inconnection with the notice specified herein.
P) Distribution Limitatloa1. Pepsi reserves the right to limit quantities, withhold or deductFundingasan offset to amountsnot paid by Customeror terminate this Agreement if Customer ( i) sells Products directly or indirectly for resale outside of the Pepsi's exclusive territory where the Outlet operates and( ii) purchases Products outside Pepsi's exclusive territory where the Outlet operates and resells such Products within Pepsi'sexclusive territory.
Q) Entire Agreement. This Agreement contsins the entire agreement between the Parties hereto regarding the subject matter hereof and supersedes all other agreements between the Parties. This Agreementmay be amendedor modified only by a writing signedby eachof the Parties.
R) Representations. The Parties, represents and warrants to the other Party that( 1) the 116575- 1
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execution, delivery and performance of this Agreement will not violate any agreemcnls with, or rights o( third parties or any statute, rule or regulation applicable to the party or any of its properties, assets or operations ( including witbDut limitation any financial reporting and disclosure requirements promulgated by the Securities and Exchange Commission) and ( 2) is duly authorized and empowered to bind itself to the terms and conditions of this Agreement for the duration of the Tenn and( 3) it possesseslegal authority to enter into and perform the terms and conditions of this Agreement.
IN WITNESSWHEREOF,theundersigned havecausedthis Agreementto beduly executedas ofthe date set forth below.
Bottling Group, LLC Cathedral City
Print
Ni
PrintName: CharlesP McClcodon
TjpaTS R CZ w ffi5( dQ-') Title City Manager
Dame: 12121 2011 Date: //— .: J..' 7-/ CI
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EXHIBIT A
Customer Outlets
Downtown Festivals
Snow Fest
Taste ofJalisco
Food Truck Mash Up
Cathedral City LOBT Days
Easter Kidapalooza
CoachellaValleyBattleintheDesert
Tejano Music Fest
Halloween Spooktacular
Cathedral CityHotAir BalloonFest
Movies intheParle
Exclusivity for all cvenfll at the Cathedral City Community Amphitheater Onevending machine insidetheCathedral CityCommunityAmphitheater 6S/ S- 1
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EXHIBIT B
Products and Prces
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