HomeMy WebLinkAboutPepsi Cola Botteling Co. - Agreement for RFP 12401P Concesseions, Soft Drinks & VendingAGREEMENT
CITY OF YAKIMA
RFP 12401P
CONCESSIONS, SOFT DRINKS & VENDING
THIS AGREEMENT, entered into on the date of last execution, between the City of Yakima, a Washington municipal corporation ("City"),
and Pepsi Cola Bottling Co., ("Contractor").
WITNESSETH: The parties, in consideration of the terms and conditions herein, do hereby covenant and agree as follows:
1. Statement of Services
The Contractor shall perform all work and service(s) and furnish all tools, materials, labor and equipment (collectively referred to as
"Services") according to the procedure outlined in RFP 12401 P Specifications which are attached as Exhibit A, and the most recent
edition of the ANSI/TIAIEIA and NEC Standards, all of which are incorporated herein by this reference, and shall perform any alterations
in or additions to the work provided under this Contract and every part thereof,
2. Compensation
The City agrees to pay the Contractor according to Contractor's Proposal which are attached as Exhibit B, and incorporated herein by
this reference, which Exhibit includes the deliverables and payment schedule of itemized prices as listed in the Contractor's Proposal
Submittal at the time and in the manner and upon the conditions provided for the Contract.
3. Contract Term extend the Contract on
The period of this Contract shall be for a period of one (1) year from its effective date. The City may, at its option,
a year to year basis for up to two (2) additional years. For a total of three (3) years. Contract extensions shall be automatic, and shall go
into effect without written confirmation, unless the City provides advance notice of the intention to not renew or unless the Services have
been completed to the City's satisfaction prior to any automatic renewal.
4. Agency Relationship between City and Contractor
Contractor shall, at all times, be an independent Contractor and not an agent or representative of City with regard to performance of the
Services. Contractor shall not represent that it is, or hold itself out as, an agent or representative of City. In no event shall Contractor be
authorized to enter into any agreement or undertaking for, or on, behalf of City.
5. Successors and Assigns
a. Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests accruing from this
Contract without the prior written consent of the other.
b. The Contractor for itself, and for its heirs, executors, administrators, successors, and assigns, does hereby agree to the full
performance of all the covenants herein contained upon the part of the Contractor.
6. Property Rights
All records or papers of any sort relating to the City and to the project will at all times be the property of the City and shall be surrendered
to the City upon demand. All information concerning the City and said project which is not otherwise a matter of public record or required
by law to be made public, is confidential, and the Contractor will not, in whole or part, now or at any time disclose that information without
the express written consent of the City.
7. Inspection, Production and Retention of Records
a. The records relating to the Services shall, at all times, be subject to inspection by and with the approval of the City, but the
making of (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for
performance of the Services in accordance with this Contract, notwithstanding the City's knowledge of defective or non-
complying performance, its substantiality or the ease of its discovery. Contractor shall provide the City sufficient, safe, and
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proper facilities, and/or send copies of the requested documents to the City. Contractor's records relating to the Services
will be provided to the City upon the City's request.
b. Contractor shall promptly furnish the City with such information and records which are related to the Services of this Contract
as may be requested by the City. Until the expiration of six (6) years after final payment of the compensation payable under
this Contract, or for a longer period if required by law or by the Washington Secretary of State's record retention schedule,
Contractor shall retain and provide the City access to (and the City shall have the right to examine, audit and copy) all of
Contractor's books, documents, papers and records which are related to the Services performed by Contractor under this
Contract.
c. All records relating to Contractor's services under this Contract must be made available to the City, and the records relating
to the Services are City of Yakima /Yakima County records. They must be produced to third parties, if required pursuant to
the Washington State Public Records Act, Chapter 42.56 RCW, or by law, All records relating to Contractor's services under
this Contract must be retained by Contractor for the minimum period of time required pursuant to the Washington Secretary
of State's records retention schedule.
d. The terms of this section shall survive any expiration or termination of this Contract.
8. Compliance with Law
Contractor agrees to perform all Services under and pursuant to this Contract in full compliance with any and all applicable laws, rules,
and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise.
Contractor shall procure and have all applicable and necessary permits, licenses and approvals of any federal, state, and local
government or governmental authority or this project, pay all charges and fees, and give all notices necessary and incidental to the due
and lawful execution of the work.
a. Procurement of a City Business License. Contractor must procure a City of Yakima Business License and pay all charges,
fees, and taxes associated with said license.
b. Contractor must provide proof of a valid Washington State Contractor Registration number.
c. Contractor must provide proof of a valid Washington department of Revenue state excise tax registration number, as
required in Title 85 RCW.
d. Contractor must provide proof of a valid Washington Unified Business Identification (UBI) number. Contractor must have a
current UBI number and not be disqualified from bidding on any public works contract under RCW 39.06.010 or
39.12.065(3),
e. Contractor must provide proof of a valid Washington Employment Security Department number as required by Title 50
RCW,
Foreign (Non -Washington) Corporations: Although the City does not require foreign corporate proposers to qualify in the
City, County or State prior to submitting a proposal, it is specifically understood and agreed that any such corporation will
promptly take all necessary measures to become authorized to conduct business in the City of Yakima at their own expense,
without regard to whether such corporation is actually awarded the contract, and in the event that the award is made, prior
to conducting any business in the City.
9. Nondiscrimination Provision
During the performance of this Contract, the Contractor agrees as follows:
The Contractor shall not discriminate against any person on the grounds of race, creed, color, religion, national origin, sex, age, marital
status, sexual orientation, gender identity, pregnancy, veteran's status, political affiliation or belief, or the presence of any sensory, mental
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or physical handicap in violation of the Washington State Law Against Discrimination (RCW chapter 49,60) or the Americans with
Disabilities Act (42 USC 12101 et seq.),
This provision shall include but not be limited to the following. employment, upgrading, demotion, transfer, recruitment, advertising, layoff
or termination, rates of pay or other forms of compensation, selection for training, and the provision of Services under this Agreement.
In the event of the Contractor's noncompliance with the non-discrimination clause of this contract or with any such rules, regulations, or
orders, this Contract may be cancelled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for
any future City contracts,
10. Pay Transparency Nondiscrimination Provision:
The Contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about,
discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the
compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other
employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in
response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation
conducted by the employer, or (c) consistent with the contractor's legal duty to fumish information,
11. Indemnification and Hold Harmless
a. Contractor shall take all necessary precautions in performing the Services to prevent injury to persons or property. The
Contractor agrees to release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers,
employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and
expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other govemmental
proceedings arising from or in connection with this Agreement or the acts, failures to act, errors or omissions of the
Contractor, or any Contractor's agent or subcontractor, in performance of this Agreement, except for claims caused by
the City's sole negligence.
b. industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity
that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of
this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of
damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit
acts or any other benefits acts or programs. Contractor shall require that its subcontractors, and anyone directly or
indirectly employed or hired by Contractor, and anyone for whose acts Contractor may be liable in connection with its
performance of this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51
RCW, and assume all potential liability for actions brought by their respective employees. The Parties acknowledge
that they have mutually negotiated this waiver.
c, Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24,115, then, in the event
of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of the Contractor and the City, the Contractor's liability, including the duty and cost to defend,
shall be only to the extent of the Contractor's negligence.
d. Nothing contained in this Section or this Contract shall be construed to create a liability or a right of indemnification in
any third party.
e, The terms of this Section shall survive any expiration or termination of this Contract,
12. Contractor's Liability Insurance
At all times during performance of the Services and this Contract, Contractor shall secure and maintain in effect insurance to protect the
City and Contractor from and against any and all claims, damages, losses, and expenses arising out of or resulting from the performance
of this Contract.
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Contractor shall provide and maintain in force insurance in limits no less than that stated below, as applicable, The City reserves the
right to require higher limits should it deem it necessary in the best interest of the public,
Contractor shall provide a Certificate of Insurance to the City as evidence of coverage for each of the policies and outlined herein, A
copy of the additional insured endorsement attached to the policy shall be included with the certificate, This Certificate of insurance shall
be provided to the City, prior to commencement of work,
Failure of City to demand such verification of coverage with these insurance requirements or failure of City to identify a deficiency from
the insurance documentation provided shall not be construed as a waiver of Contractor's obligation to maintain such insurance.
The following insurance is required:
a, Commercial Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance and
additional insured endorsements as proof of commercial liability insurance with a minimum liability limit of Two Million
Dollars ($2,000,000,00) per occurrence, combined single limit bodily injury and property damage, and Two Million Dollars
($2,000,000.00) general aggregate, If Contractor carries higher coverage limits, such limits shall be shown on the Certificate
of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and
volunteers shall be named as additional insureds for such higher limits, The certificate shall clearly state who the provider
is, the coverage amount, the policy number, and when the policy and provisions provided are in effect, Said policy shall be
in effect for the duration of this Contract, The certificate of insurance and additional insured endorsements shall name the
City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and
shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice,
The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the
State of Washington, The requirements contained herein, as well as City of Yakima's review or acceptance of insurance
maintained by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed
by Contractor under this contract,
b. Automobile Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as proof
of automobile liability insurance with a minimum liability limit of Two Million Dollars ($2,000,000,00) per occurrence. If
Contractor carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and
the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional
insureds for such higher limits, The certificate shall clearly state who the provider is, the coverage amount, the policy
number, and when the policy and provisions provided are in effect, Said policy shall be in effect for the duration of this
Contract, The certificate of insurance and additional insured endorsements shall name the City of Yakima, its elected and
appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the
insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with
an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The
requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Contractor is
not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this
contract, The business auto liability shall include Hired and Non -Owned coverage if necessary,
c. Employer's Liability (Stop Gap)
Contractor and all subcontractor(s) shall at all times comply with all applicable workers' compensation, occupational
disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable, and shall maintain
Employer's Liability insurance with a limit of no less than $1,000,000.00. The City shall not be held responsible in any way
for claims filed by Contractor or its employees for services performed under the terms of this Contract, Contractor agrees
to assume full liability for all claims arising from this Contract including claims resulting from negligent acts of all
subcontractor(s), Contractor is responsible to ensure subcontractor(s) have insurance as needed. Failure of
subcontractors(s) to comply with insurance requirements does not limit Contractor's liability or responsibility.
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Contractor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under this Contract, Any
insurance, self-insurance or insurance pool coverage maintained by the City shall be in excess of the Contractor's insurance and neither
the City nor its insurance providers shall contribute to any settlements, defense costs, or other payments made by Contractor's insurance.
If at any time during the life of the Contract, or any extension, Contractor fails to maintain the required insurance in full force and effect,
all work under the contract shall be discontinued immediately. Any failure to maintain the required insurance may be sufficient cause for
the City to terminate the Contract. All additional insured endorsements required by this Section shall include an explicit waiver of
subrogation,
13. Severability
If any term or condition of this Contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall
not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application, To this end,
the terms and conditions of this Contract are declared severable,
14. Contract Documents
This Contract, the Request for Proposals 12401 P, Scope of Work, conditions, addenda, and modifications and Contractor's proposal (to
the extent consistent with City of Yakima documents) constitute the Contract Documents and are complementary. Specific Federal and
State laws and the terms of this Contract, in that order respectively, supersede other inconsistent provisions. These Contract Documents
are on file in the Office of the Purchasing Manager, 129 No. 2nd St, Yakima, WA, 98901, and are hereby incorporated by reference into
this Contract,
15. Termination
Termination for Cause
In the event the Contractor breaches this Contract, the City may terminate the Contract at its sole discretion in such event that it provides
the Contractor with written notice of Contractor's breach and the Contractor fails to cure its breach within 30 days of this notice.
In the event of the City breaches this Contract, the Contractor may terminate the Contract at its sole discretion in such event that it
provides the City with written notice of City's breach and the City fails to cure its breach of the Contract within 60 days of this notice.
The following represents a non-exclusive, illustrative list of instances that shall be considered a breach by the Contractor:
a. Defaults on an obligation under the Contract;
b. Fails to perform any material obligation required under the Contract;
c. Files a petition in bankruptcy, becomes insolvent, or otherwise takes action to dissolve as a legal entity;
d. Allows any final judgment not to be satisfied or a lien not to be disputed after a legally -imposed, 30-day notice;
e. Makes an assignment for the benefit of creditors;
f. Fails to follow the sales and use tax certification requirements of the State of Washington;
g. Incurs a delinquent Washington tax liability;
h. Becomes a State or Federally debarred Contractor;
Is excluded from federal procurement and non -procurement Contracts;
1 Fails to maintain and keep in force all required insurance, permits and licenses as provided in the Contract;
k, Fails to maintain the confidentiality of the City information that is considered to be Confidential Information,
proprietary, or containing Personally Identifiable Information;
I. Contractor performance threatens the health or safety of a City, County or municipal employee; or
Termination for Convenience
The City may terminate the Contract, without cause, by providing 30 days written notice of termination.
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In the event of termination for convenience, the Contractor shall be entitled to receive compensation for any fees owed under the Contract,
The Contractor shall also be compensated for partially completed services. In this event, compensation for such partially completed
services shall be no more than the percentage of completion of the services requested, at the sole discretion of the City, multiplied by
the corresponding payment for completion of such services as set forth in the Contract. Alternatively, at the sole discretion of the City,
the Contractor may be compensated for the actual service hours provided. The City shall be entitled to a refund for goods or services
paid for but not received or implemented, such refund to be paid within 30 days of written notice to the Contractor requesting the refund.
Change in Funding
In addition to the above termination provisions, if the funds upon which the City relied to establish this Contract are withdrawn, reduced,
or limited, or if additional or modified conditions are placed on such funding, the City may terminate this Contract by providing at least
five business days written notice to the Contractor. The termination shall be effective on the date specified in the notice of termination.
16. Dispute Resolution
In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of a notice of default as to whether such
default does constitute a breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall
first pursue mediation as a means to resolve the dispute. If the afore mentioned methods are either not successful then any dispute
relating to this Agreement shall be decided in the courts of Yakima County, in accordance with the laws of Washington. If both parties
consent in writing, other available means of dispute resolution may be implemented.
17. Re -Award
When the contract is terminated by the Contractor upon providing the written notice as herein required, the City, pursuant to City
ordinance, may re -award the contract to the next most responsible Proposer within 120 days from original award.
When a Contractor is unable to supply goods and/or services to the City and is in breach of the contract, or when the contract is terminated
by the City for cause as herein provided, the City reserves the right to re -award the contract to the next most responsible Proposer within
120 days from original award,
18. Force Majeure
Contractor wit not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics/pandemics, war, riot, delay in
transportation or railcar transport shortages, provided Contractor notifies the City immediately in writing of such pending or actual delay.
Normally, in the event or any such delays (acts or God, etc,) the date of delivery will be extended for a period equal to the time lost due
to the reason for delay.
19. Governing Law
This Contract shall be governed by and construed in accordance with the laws of the State of Washington.
20. Venue
The venue for any judicial action to enforce or interpret this Contract shall lie in a court of competent jurisdiction in Yakima County,
Washington,
21. Authority
The person executing this Contract, on behalf of Contractor, represents and warrants that they have has been fully authorized by Contractor
to execute this Contract on its behalf and to legally bind Contractor to all the terms, performances and provisions of this Contract,
22. Notice of Change in Financial Condition
If, during the Contract Term, the Contractor experiences a change in its financial condition that may affect its ability to perform under the
Contract, or experiences a change of ownership or control, the Contractor shall immediately notify the City in writing, Failure to notify the
City of such a change in financial condition or change of ownership or control shall be sufficient grounds for Contract termination.
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23. Change or Notice
Any alterations, including changes to the nature of the service, made to the Contract shall be rendered in writing and signed by both
responsible parties; no changes without such signed documentation shall be valid. No alterations outside of the general scope and intent
of the original Request for Proposals or in excess of allowable and accepted price changes shall be made,
In no event shall the Contractor be paid or be entitled to payment for services that are not authorized herein or any properly executed
amendment.
Notice of Business Changes: Contractor shall notify the City in writing within three (3) business days of any change in ownership of the
facilities of the Contractor or of the facilities of any subcontractor. The Contractor shall notify the City in writing as soon as possible, and
in no event later than three (3) business days, after any decision by the Contractor to change or discontinue service that will affect
services provided to the City under this Contract.
The City shall have the right to renegotiate the terms and conditions of this Contract to the extent required to accommodate a change in
goveming law or policy that, in the sole discretion of the City, either substantially and unreasonably enlarges the Contractor's duties
hereunder, or renders performance, enforcement or compliance with the totality of the Contract impossible, patently unreasonable, or
unnecessary. Notices and demands under and related to this Contract shall be in writing and sent to the parties at their addresses as
follows:
TO CITY:
Ken Wilkinson
Park and Recreation Manager
City of Yakima
2301 Fruitvale Blvd
Yakima WA, 98902
COPY TO:
Christina Payer
Buyer II
City of Yakima
129 North 2nd Street
Yakima, WA 98901
CONTRACTOR:
Pepsi -Cola Bottling Company
Mike Trammell, General Manager
1001 South First Street
Yakima, WA 98901
24, Survival
The foregoing sections of this Contract, 1-23 inclusive, shall survive the expiration or termination of this Contract in accordance with their
terms.
IN WITNESS WHEREOF, the parties hereto execute this Contract as of the day and year first above written.
CITY OF YAKIMA
City Man
Date:
CITY CONTRACT NO:
"OLUTtON NO:
Attest:
List of Exhibits attached to this contract
Exhibit A — Specifications
Exhibit B — Cost Proposal (Compensation)
PEPSI.COLA BOTTLING COMPANY
Mike Digitally signed by Mike
--. Trammell
pate: 2024.03:14
Trammell 13:45:15 -07'00'
By:
Date. 03/14/2024
Mike Trammell
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EXHIBIT A - SPECIFICATIONS
[SERVICES DESCRIBED IN RFP/RFI
ROPOSAL]
PENSATION)
[DELIVERABLES AND PAYMENT SCHEDULE OF ITEMIZED PRICES AS LISTED IN THE CONTRACTOR'S PROPOSAL
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