CM-10-08-164ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
Item Caption:
Approval Date:
City Manager Approval Summary Sheet
Consider executing Sports Drink Production Agreement with Market Beverage Group, Inc.
August 20, 2010
Department: Convention and Visitors Bureau
Project Manager: Nancy Yawn
Item Summary:
The Convention and Visitors Bureau desires to purchase customized sports drinks for the use in the promotion of
tourism and the convention and hotel industry, as well as our "Sports Capital of Texas" branding campaign.
Strategic Plan Relevance:
11.0 Maintain and enhance efforts to align and partner with key groups that bring value to the City.
Cost: $5,741.00
Source of Funds: Hotel Occupancy Tax
REV. 3/8/10
CITY OF ROUND ROCK
SPORTS DRINK PRODUCTION AGREEMENT
WITH MARKET BEVERAGE GROUP, INC.
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS:
This Agreement is for purchase of sports drink production services and related goods, and
is referred to herein as the "Agreement." This Agreement is made and entered into by and
between the CITY OF ROUND ROCK, TEXAS, a home -rule municipality whose offices are
located at 221 East Main Street, Round Rock, Texas 78664, referred to herein as the "City," and
MARKET BEVERAGE GROUP, INC., whose offices are located at 20930 North Tatum
Boulevard Plaza 110-129, Phoenix, Arizona 85050, referred to herein as "Market Beverage" or
the "Vendor." This Agreement supersedes and replaces any previous agreement between the
named parties, whether oral or written, and whether or not established by custom and practice.
RECITALS:
WHEREAS, City desires to purchase customized sports drinks for use in the promotion
of tourism and the convention and hotel industry, and City desires to purchase same from
Vendor; and
WHEREAS, City has issued its "Request for Quotation" for the provision of said goods
and services, and City has selected the quote submitted by Vendor; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City is obligated to buy specified goods and Vendor is obligated to sell specified goods.
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B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed,
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods mean the specified supplies, materials, commodities, or equipment.
F. Vendor means Market Beverage Group, Inc., or any successors or assigns.
2.01 EFFECTIVE DATE, INITIAL TERM, AND ALLOWABLE RENEWALS
A. This Agreement shall be effective on the date it has been signed by both parties
hereto, and shall remain in full force and effect unless and until it expires by operation of the
term stated herein, or until terminated or extended as provided herein.
B. The initial term of this Agreement is for twelve (12) months from the effective
date hereof, After that initial term, this Agreement may be renewed for successive terms of
twelve (12) months each, not to exceed in the aggregate two (2) such renewals, with such
renewals to occur on or before the expiration date of the preceding term, and with such renewals
being absolutely predicated upon the express written agreement of both parties. Such renewals
are permitted only provided Vendor has performed each and every contractual obligation
specified in this original Agreement.
C. Prices shall be firm for the duration of this Agreement and for any renewal
periods; provided however, that costs for freight may vary from that amount indicated on Exhibit
"B", attached hereto and made a part hereof for all purposes, and shall be determined at the time
that Goods are shipped. No separate line item charges shall be permitted for invoicing purposes,
including but not limited to equipment rental, demurrage, costs associated with obtaining
permits, or any other extraneous charges. City may permit "unit price" adjustments upwards
only as a result of a cost increase in goods or services in accordance with the Producers Price
Index located at http://stats.bls.gov/ppi/home.htm. Any price increase shall be requested by
Vendor in writing and accompanied by the appropriate documentation to justify the requested
increase. Vendor may offer price decreases in excess of the allowable percentage change.
D. City reserves the right to review the relationship at any time, and may elect to
terminate this Agreement with or without cause or may elect to continue.
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3.01 CONTRACT DOCUMENTS AND EXHIBITS
City selected Vendor to supply the goods and services as outlined in City of Round Rock
Request for Quotation as specified in Exhibit "A", attached hereto and made a part hereof for all
purposes, and the corresponding quote submitted by Vendor, as specified in Exhibit "B",
attached hereto and made a part hereof for all purposes. The intent of these documents is to
formulate an Agreement listing the responsibilities of both parties as outlined in Exhibit "A", and
Exhibit "B".
The goods and services which are the subject matter of this Agreement are described in
Exhibits "A" and "B" and, together with this Agreement, comprise the total Agreement and they
are fully a part of this Agreement as if repeated herein in full.
4.01 BID ITEMS AWARDED
All items on Exhibit "A", which items are City's items, are awarded to Vendor and
Vendor hereby agrees to provide such items to City.
5.01 UNIT COSTS
Unit costs listed on Exhibit "B" shall be the basis of any charges collected by Vendor;
provided however, that costs for freight may vary from that amount indicated on Exhibit B and
shall be determined at the time that Goods are shipped.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received; and
D. Delivery dates.
7.01 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Vendor a written notice of termination at the end of its then -current fiscal year.
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8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, City shall make
payment of one-half (1/2) of the total contract price upon execution of this Agreement. City
shall pay the remaining one-half (1/2) of the total contract price within thirty (30) days of the
date City receives goods under this Agreement, the date the performance of the services under
this Agreement are completed, or the date City receives a correct invoice for the goods or
services, whichever is later. Vendor may charge interest on an overdue payment at the "rate in
effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance
with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy
does not apply to payments made by City in the event:
(a)
There is a bona fide dispute between City and Vendor, a contractor,
subcontractor, or supplier about the goods delivered or the service performed
that cause the payment to be late; or
(b) There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service
performed that causes the payment to be late; or
(c) The terms of a federal contract, grant, regulation, or statute prevent City from
snaking a timely payment with federal fiends; or
(d) The invoice is not mailed to City in strict accordance with any instruction on
the purchase order relating to the payment.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or
otherwise were offered or given by Vendor or its agents or representatives to any City officer,
employee or elected representative with respect to the performance of this Agreement. In
addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain the products from another supplier or suppliers.
4
12.01 TRADEMARKS AND LICENSES
City has the exclusive right and power• to use the trade names, trade slogans, trademarks,
service marks, copyrights and logos designated as Logo #1, Logo #2 and Logo #3 on Exhibit
"A" (the "Logos").
City grants Vendor the non -transferable right and Iicense to use the Logos only for the
purpose of furnishing the goods made the subject of this Agreement to City, and not for any
other purpose. Such right and license is non-exclusive and City retains the right to grant use of
the Logos and any associated trade names and associated marks and copyrights to additional
licensees.
13.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
14.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods elsewhere, Vendor agrees that it may be charged the difference in cost, if
any, and that it will not be considered in the re -advertisement of the service and that it may not
be considered in future bids for the same type of work unless the scope of work is significantly
changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
5
15.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written notice to Vendor.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. 'Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the goods and/or services satisfactorily performed
Colder this Agreement to the date of termination. City shall then pay Vendor that portion of the
charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services
it would have performed under the remaining term of the Agreement except as provided herein.
16.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor,
or Vendor's agents, employees or subcontractors, in the performance of Vendor's obligations
under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be
deemed to limit the rights of City or Vendor (including, but not limited to the right to seek
contribution) against any third party who may be liable for an indemnified claim.
17.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Vendor, its agents, employees and subcontractors shall use best efforts to comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
18.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
6
19.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
Market Beverage Group, Inc.
20930 North Tatum Boulevard Plaza 110-129
Phoenix, Arizona 85050
Notice to City:
Assistant City Manager
221 East Main Street
Round Rock, TX 78664
Stephen L. Sheets, City Attorney
AND TO: 309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
20.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williatnson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
21.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing.
22.01 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve
the dispute or claim by appropriate internal means, including referral to each party's senior
management. If the parties cannot reach a mutually satisfactory resolution, then and in that event
7
any such dispute or claim will be sought to be resolved with the help of a mutually selected
mediator. If the parties cannot agree on a mediator, City and Vendor shall each select a mediator
and the two mediators shall agree upon a third mediator. Any costs and fees, other than attorney
fees, associated with the mediation shall be shared equally by the parties.
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
23.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
24.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance must
be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock, Texas
By:
Printed
Title:
Date Signe
Attest:
By: q1/114 L ,
Sara L. White, City Secretary
For City • pproved as o Form:
By: L�:T.�
Steph
Market Beverage Group, Inc.
By: 9 '�
Printed Name: IP— )- (1 1..y.
Title: A_ -s;
Date Signed: 'Ji►/,v
9
CITY CONTACT Jessica Jennings
PHONE: 512-218-7023
FAX: 512-341-3153
EMAIL: jjeruiings@round-rock.tx.us
TODAY'S DATE Tuesday, July 27, 2010
QUOTE DUE: Monday, August 2, 2010
SIGNATURE OF PERSON AUTHORIZED TO BID:
PAGE 1 OF 2
08/11/10 7:39 AM
CITY OF ROUND ROCK
REQUEST FOR QUOTATION
INSTRUCTIONS TO BIDDERS
• FURNISH ONE COPY OF QUOTE BEFORE DUE DATE
♦ ALL DELIVERIES SHALL BE FOB DESTINATION, DIRECT FREIGHT PREPAID AND ALLOWED
• ALL CITY OF ROUND ROCK PURCHASE TERMS AND CONDITIONS SHALL APPLY
+ ALL QUOTES RECEIVED SHALL BE EVALUATED BASED ON THE BEST VALUE FOR THE CITY. BEST VALUE WILL
BE DETERMINED BY CONSIDERING ALL OR PART OF THE CRITERIA LISTED, AS WELL AS ANY RELEVANT
CRITERIA SPECIFICALLY LISTED IN THE SOLICITATION.
BID PRICE, REPUTATION OF THE BIDDER AND OF BIDDER'S GOODS AND SERVICES, THE QUALITY OF THE
BIDDER'S GOODS OR SERVICES, THE EXTENT TO WHICH THE GOODS OR SERVICES MEET THE CITY'S NEEDS,
AND BIDDER'S PAST RELATIONSHIP WITH THE CITY.
SPECIFICATIONS
♦ A PROOF OF EACH ITEM MUST BE FURNISHED
• DELIVERY OF EACH ITEM MUST BE COMPLETED BY TUESDAY, SEPTEMBER 15, 2010
• ITEMS MAY BE BID INDIVIDUALLY
• SAMPLES OF SIMILAR WORK MUST BE MADE AVAILABLE UPON REQUEST
♦ QUOTE EACH ITEM WITH EACH LOGO SHOWN:
M E ON!
LOGO #2: LOGO #3:
SQp11TSco
*r
ROUND ROCK
EXHIBIT
1 A
BILL TO: CITY OF ROUND ROCK
FINANCE DEPT - AP
221 EAST MAIN STREET
ROUND ROCK, TX 78664-5229
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ROUND \ ROCK
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www.SportsCapitalofTexas.com
SHIP TO: CITY OF ROUND ROCK
CONVENTION & VISITORS BUREAU
231 EAST MAIN STRET, SUITE 150
ROUND ROCK, TX 78664
CITY OF ROUND ROCK
REQUEST FOR QUOTATION
o Item# 1: Sports Drink — 20oz.
Logo Type: Custom label — 4 color
Specify Flavor Choices
Please quote these quantities:
Qty: 5000 to 7000 bottles
Include all set up and associated charges and freight
PAGE 2 OF 2
08/11/10 7:39 AM
arket Beverage Group'
20930 N. Tatum Blvd,
Plaza 110-129
Phoenix, AZ 85050
Name/Address
CITY OF ROUND ROCK
FINANCE DEPT - AP
221 EAST MAIN STREET
ROUND ROCK, TX 78664-5229
Date
Estimate No,
08/02/10
10-604
Quote
Item
Description
Quantity
Price
Total
PL Sports Drink
Private Label Sports Drink - 12/20oz w/label (5
pallets)
6,300
0.67
1,221.00
PL Sports Drink
4 Flavors: Lemon -Lime, Red Fruit Punch, Blue
0.00
0.00
Raspberry, and Orange
Plate Charge
Plate Fees - Per Color
4
90.00
360.00
Freight I
Freight LTL to TX
1
1,160.00
1,160.00
EXHIBIT
b
1 3
We appreciate your business - quantity of order based on +/- 5% over/under run.
Total $5,741.00