HomeMy WebLinkAbout11 076 Soft Drink Provider Agreement (Pepsi) THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY-LAW
NO. 2011 - 076
BEING A BY -LAW TO ENTER INTO AN AGREEMENT WITH THE PEPSI
BOTTLING GROUP (CANADA) TO SUPPLY SOFT DRINK PRODUCTS TO
THE DAVISON CENTRE WITHIN THE MUNICIPALITY OF KINCARDINE
AND WHEREAS pursuant to the said Municipal Act, 2001 Section 8 (1) and 9
provide that the powers of a municipality under this or any other Act shall be
interpreted broadly so as to confer broad authority on the municipality to enable
• the municipality to govern its affairs as it considers appropriate and to enhance
the municipality's ability to respond to municipal issues and has the capacity,
rights, powers and privileges of a natural person for the purpose of exercising its
authority under this or any other Act;
AND WHEREAS the Council of the Municipality of Kincardine deems it expedient
to enter into a 10 year agreement with The Pepsi Bottling Group (Canada) to
supply soft drink products to the Davidson Centre within the Municipality of
Kincardine;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That The Corporation of the Municipality of Kincardine enter into a 10 year
agreement with The Pepsi Bottling Group (Canada) to supply soft drink
products to the Davidson Centre.
2. That the Mayor and Chief Administrative Officer be authorized and directed
• to sign and execute, on behalf of The Corporation of the Municipality of
Kincardine, the Agreement with The Pepsi Bottling Group (Canada)
attached hereto as Schedule 'A' and to affix the corporate seal.
3. This by -law shall come into full force and effect upon its final passage.
4. This by -law may be cited as the "Soft Drink Provider Agreement (Pepsi)
By -law ".
READ a FIRST and SECOND TIME this 18 day of May, 2011.
Clerk
READ a THIRD TIME and FINALLY PASSED this l8 day of May, 2011.
• • - i - jy tNn o.
ayor Clerk
e Pepsi Bottling Group
March 8, 2011 •
Davidson Centre Arena
601 Durham Street
Kincardine, Ontario
N2Z 1L6
Attention: Karen Kieffer
Re: Exclusive Supply Arrangements
This letter confirms the terms of the agreement (the "Agreement ") between The Pepsi Bottling Group
(Canada), Co. ( "PBG ") and Davidson Centre Arena (on behalf of itself and its affiliates) (the "Customer")
regarding the exclusive supply of carbonated soft drinks and other beverage products (except milk, hot
coffees, hot teas, hot chocolates, and alcoholic beverages) for retail sale and/or distribution in/at/through
all sit -down, take -out and delivery locations, concessions, restaurants, kiosks, beverage fountain, vending
and cooling equipment, and other outlets in Canada which are now or in the future owned, operated,
managed, leased, franchised and/or licensed, directly or indirectly, by the Customer or its franchisees or
licensees (collectively, the "Outlets ").
For purposes of this Agreement, "business day" means any day which is not a Saturday, a Sunday or a
statutory or civic holiday in the City of Owen Sound, Ontario.
The parties agree and covenant to perform their respective obligations hereunder in accordance with the
following terms and conditions.
1.0 Term
1.1 The term (the "Term ") of this Agreement shall commence on April 1 t , 2011 (the "Commencement
Date ") and, unless earlier terminated in accordance herewith, shall terminate on Mareh31 2021.
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1.2 For the purposes of this Agreement, a "Contract Year" shall be defined as each 12 -moth period
during the Term, commencing on the Commencement Date or an anniversary thereof.
2.0 Products
2.1 During the Term, PBG shall sell to the Customer and its franchisees and licensees, and the
Customer and its franchisees and licensees shall purchase from PBG, carbonated soft drinks and other
beverage products (except milk, hot coffees, hot teas, hot chocolates, and alcoholic beverages) in
fountain beverage syrup and packaged product format, which may include, but is not limited to, the
following brands: Pepsi, Diet Pepsi, 7Up, Diet 7Up, Mountain Dew, Diet Mountain Dew, Crush, Mug Root
Beer, Dr Pepper, Dole, Gatorade, Lipton Brisk Iced Tea, Lipton Original Iced Tea, Lipton Brisk
Lemonade, Tropicana Twister, Aquafina, Aquafina Flavour Splash, SoBe, Frappuccino, Mountain Dew
Energy, A -Rush, No Fear, Rockstar and such other beverage products, whether in addition to or in
substitution therefore, as PBG may offer for sale from time to time (collectively, the "Products").
2.2 The Customer and its franchisees and licensees shall use the fountain beverage syrup Products:
(a) In accordance with the procedures and standards established by PBG; and
(b) Only for immediate and imminent consumption, and shall not sell the fountain beverage
syrup Products to other Outlets or to non - Outlets, or to consumers in any form other than
the finished post -mix fountain beverage.
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2.3 The Customer acknowledges that PBG may add, delete or substitute certain brands of Products
from time to time.
2.4 Carbon dioxide shall be available, during the Term, from PBG or the local Pepsi bottler at then
current prices. Such prices shall be exclusive of any and all current and future taxes, deposits and
environmental levies. The Customer and its franchisees and licensees may be required to pay a
refundable deposit to PBG or the local Pepsi bottler on all carbon dioxide cylinders, product transfer tanks
and bag -in -shell containers supplied to the Outlets.
2.5 PBG agrees to deliver Products to the Outlets in accordance with PBG's then current standard
practices, minimum volume requirements and frequencies.
3.0 Exclusivity
3.1 The Customer agrees that, during the Term, PBG shall be the sole and exclusive supplier to the
Customer and its franchisees and licensees of carbonated soft drinks and other beverage products
(except milk, hot coffees, hot teas, hot chocolates, and alcoholic beverages), whether in fountain
beverage syrup, packaged product or other format, in respect of the Outlets.
3.2 For greater clarity, and without limiting the generality of the foregoing, during the Term, the
carbonated soft drinks and other beverage products (except milk, hot coffees, hot teas, hot chocolates,
and alcoholic beverages) sold by the Customer and its franchisees and licensees at/through the Outlets
(including, but not limited to, through all vending, cooler and fountain beverage equipment) shall be
brands supplied exclusively by PBG in the following categories: carbonated soft drinks, teas other than
fresh brewed, juices, juice -based products, lemonade, isotonics, sports drinks, energy drinks, bottled
water and cold coffee. The Customer hereby undertakes to ensure that, during the Term, the Products
are the exclusive carbonated soft drinks and other beverage products (except milk, hot coffees, hot teas,
hot chocolates, and alcoholic beverages) placed in, displayed and offered for sale on the premises
of /through the Outlets (including, but not limited to, through all vending, cooler and fountain beverage
equipment).
3.3 In no event shall the Customer or any of its franchisees or licensees, during the Term, purchase,
make available or allow the sale or distribution of carbonated soft drinks or other beverage products
(except milk, hot coffees, hot teas, hot chocolates, and alcoholic beverages) (whether in packaged
product, fountain beverage syrup or other format) on the premises oflthrough any Outlet or otherwise,
which are trademarked, licensed, produced or sold by any other beverage company including, without
limitation, Coca -Cola Ltd., Coca -Cola Enterprises, Cott Corporation or any of their respective subsidiaries,
affiliates, related companies, bottlers or distributors. In no event shall the Customer or any of its
franchisees or licensees, during or for any portion of the Term, accept or enter into any sponsorship or
other arrangement with Coca -Cola Ltd., Coca -Cola Enterprises, Cott Corporation or any of their
respective subsidiaries, affiliates, related companies, bottlers or distributors in respect of or relating to any
of the Outlets.
3.4 The Customer hereby grants to PBG the exclusive right to market, promote and advertise
carbonated soft drinks or other beverage products (except milk, hot coffees, hot teas, hot chocolates, and
alcoholic beverages) in the categories noted in Section 3.1 in the Outlets during the Term, in such
manner as may be agreed upon by the Customer and PBG. The Customer shall not permit any other
beverage supplier (except solely in respect of milk, hot coffees, hot teas, hot chocolates, and alcoholic
beverages) to install any advertising signs or devices on or about the premises of the Outlets.
3.5 PBG shall have the sole and exclusive right to identify itself as the exclusive carbonated soft drink
and other beverage product (except milk, hot coffees, hot teas, hot chocolates, and alcoholic beverages)
supplier, in the beverage categories set out in Section 3.1, to the Customer and its franchisees and
licensees, and to use the Customer's names, logos and trademarks in any of its media advertising and
promotional and public relations materials upon prior approval of the Customer.
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4.0 Prices and Payment
4.1 The prices for Products (the "Prices "), as of the Commencement Date, are listed in Schedule "A ",
and are exclusive of any and all current and future taxes, deposits and environmental levies. Increases
or decreases due to taxes or duties (including, without limitation, goods and services tax, and any new
government imposed taxes) shall be added to or deducted from the Prices and any allowances and
rebates, as applicable.
4.2 PBG reserves the right to, at its discretion change prices at any time during the agreement upon
30 days written notice to Customer.
4.3 Notwithstanding Section 4.2, Price increases exceeding and /or in addition to those set out above
may be made by PBG, in PBG's sole discretion, as a result of extraordinary increases in the price of
commodities used in the production of the Products. Without limitation, such commodities may include
sweeteners, sugar, resin, aluminium, packaging containers and other packaging materials, and fuel.
4.4 Payment of PBG invoices shall be in accordance with their stated terms which, if credit is granted,
are currently the twentieth (20th) day of the month following the invoice date. "invoice date" is defined as
the date of receipt of Product. As a result, invoice date is determined by Product delivery date as
opposed to the date of EDI transmission if EDI is used by the parties. Interest on overdue accounts shall
be calculated at a rate of eighteen percent (1 8 %) per annum or such other rate established by PBG in its
invoices. All payments to PBG shall be rendered without deduction or set off.
4.5 The Customer and each of its franchisees and licensees shall complete a PBG credit application
and shall be subject to PBG's credit policies. PBG shall extend credit payment terms, if any, to the
Customer and its franchisees and licensees in accordance with PBG's credit policies, acting reasonably.
The Customer acknowledges and agrees that, in the event PBG ceases to sell Products to the Customer
or any of its franchisees or licensees in accordance with PBG's credit policies, PBG shall not be in breach
of this Agreement.
4.6 As a convenience for the Customer, and on its behalf, all invoices for Products purchased from
PBG shall be issued to the applicable Outlet for payment.
4.7 Unless otherwise specified, payments by PBG of amounts owed hereunder shall be issued
exclusive of any sales taxes.
4.8 Post audit claims must be submitted, with supporting documentation, within twenty-four (24)
months from the invoice date in order to be considered for review. PBG requires at least sixty (60) days
to review a post audit daim prior to authorizing any deduction.
5.0 Marketing Sponsorship
5.1 In consideration of the Customer's obligations hereunder and for the beverage rights granted
herein, PBG shall
(a) Marketing Sponsorship - pay to the Customer an annual marketing sponsorship $4,000.00 (the
"Marketing Sponsorship ") each Contract Year during the Term, which shall be used for such
marketing programs as may be mutually agreed by PBG and the Customer with the objective of
increasing Product sales in the Outlets. The Marketing Sponsorship shall be earned pro rata over
the applicable Contract Year, and shall be paid within sixty (60) days of the first (1` day of the
applicable Contract Year.
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6.0 Conditions of Payment of Fees
6.1 Any bonuses, rebates, allowances, incentives, sponsorships and investments payable or to be
accrued, allocated or provided to or in respect of the Customer by PBG hereunder shall only be paid,
accrued, allocated or provided by PBG if all accounts payable to PBG from the Customer and its
franchisees and licensees are current and in good standing.
6.2 Bonuses, rebates, allowances, incentives, sponsorships and investments shall only be paid,
allocated, accrued or provided in respect of Products for which PBG has received full payment.
Notwithstanding any other remedies that PBG may have, if the Customer or any of its franchisees or
licensees fails to pay PBG any amount owing when due, PBG may deduct any such unpaid amount from
money or credit held by PBG for the benefit of the Customer.
6.3 The Customer acknowledges and agrees that for purposes of calculating any bonuses, rebates,
allowances, incentives, sponsorships and investments payable or to be accrued, allocated or provided to
or in respect of the Customer by PBG hereunder, purchases of Products shall be calculated net of any
Product provided free of charge or refunded.
7.0 Equipment
7.1 PBG shall, at PBG's cost and expense, loan the Customer and its franchisees and licensees such
fountain and /or cooler equipment (the "Equipment ") for use in the Outlets during the Term as the
Customer and PBG mutually agree, acting reasonably, is necessary to meet the demand for the Products
in the Outlets, provided that such Outlets exclusively sell and distribute PBG Products in accordance with
this Agreement. During the Term, PBG may, at PBG's cost and expense, loan additional Equipment for
use in the Outlets during the Term, as the Customer and PBG mutually agree, acting reasonably, with the
goal of increasing Product sales volume on the premises of the Outlets.
7.2 The Customer shall ensure that all Equipment is used solely to dispense or sell PBG Products
and display only the trademarks associated with the Products.
7.3 PBG shall, at PBG cost and expense, service the Equipment during the Term. The Customer
shall promptly notify PBG of any need for repair or service. The Customer further agrees to cooperate
with PBG in effecting any necessary repairs or service. The Customer shall not, and shall not allow any
of its franchisees or licensees or any other party to, repair, service, maintain, replace, relocate, move or
remove any Equipment. PBG shall have the exclusive right to repair, service, maintain, replace, relocate,
move and remove any Equipment. The Customer shall supply and install, or cause to be supplied and
installed, at the Customer's cost and expense, all facilities, presently existing or as may be reasonably
necessary, for the use and operation of the Equipment in the Outlets, induding, but not limited to,
electrical outlets and wiring, drains, conduits, water outlets and cut-off valves.
7.4 In order to protect the Equipment from damage or destruction (reasonable wear - and -tear
excepted), the Customer shall ensure that its franchisees, licensees, servants, employees,
representatives and agents exercise or cause to be exercised the same standard of care of the
Equipment as a prudent owner would exercise if he/she owned the Equipment. The Customer and its
franchisees and licensees shall use their best efforts to keep the Equipment in clean and sanitary
condition, wholly free of all advertising and other products at all times. In the event of repeated or
significant vandalism, destruction or loss, PBG shall specifically have the right, in PBG's sole discretion,
to remove any Equipment.
7.5 All Equipment loaned by PBG to the Customer and its franchisees and licensees shall remain the
property of PBG. The Customer acknowledges and agrees that no right, title or interest in such loaned
Equipment shall pass to the Customer or its franchisees or licensees. Upon termination or expiration of
this Agreement, PBG shall have the right to take possession of and remove the Equipment, whether or
not attached to any other property of the Customer or its franchisees or licensees. If the Customer fails to
allow PBG access to all the Outlets to remove said equipment within thirty (30) days of the expiration or
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early termination of this Agreement, PBG shall deduct the value of the Equipment from any and all funds
owed to Customer by PBG. If there are no outstanding funds owed to Customer, PBG shall forward to
Customer an invoice for the full value of the Equipment, such invoice will be due and payable with thirty
(30) days of the invoice date.
8.0 Survival of PBG's Rights to Supply
8.1 The Customer acknowledges, covenants and agrees that the rights of PBG to exclusively supply
Products to the Outlets pursuant to the terms of this Agreement, and all other rights of PBG herein, shall
survive any sale, assignment, transfer, mortgage, lease, rental, outsourcing, subcontracting or other
disposition, in whole or in part, by or of the Customer or any of its franchisees and licensees including,
without limitation, any sale, assignment, transfer, mortgage, lease, rental, outsourcing, subcontracting or
other disposition of any of its or their interest in the management, operation and/or ownership of the
Outlets, to another person or entity (any such disposition being hereinafter referred to as a 'Transfer ").
8.2 The Customer agrees that no Transfer shall be effected unless, on or before the effective date of
such Transfer, it secures the transferee's covenant to enter into an agreement with PBG, in form and
substance satisfactory to PBG, pursuant to which the transferee is legally obligated to honour the rights of
PBG herein, including, but not limited to, the right of PBG to supply the Products to the transferee under
the terms and conditions set out in this Agreement. For greater certainty, and notwithstanding the
foregoing, the obligations of the Customer pursuant to Article 3.0 hereunder shall remain unaffected
regardless of any such Transfer.
9.0 Termination
9.1 PBG or the Customer may terminate this Agreement by giving notice of termination in writing to
the other party in accordance with, and upon the happening of, any of the following events:
(a) if a party is in material breach or default under this Agreement and such breach or default
continues for a period of thirty (30) days following receipt by such party of written notice
from the other party calling upon the defaulting party to remedy that breach or default, the
non - defaulting party shall have the right to terminate this Agreement forthwith upon
written notice to the defaulting party;
(b) if, at any time during the Term, either party takes any action with respect to its liquidation
or winding -up, or makes an assignment for the benefit of creditors, or any proposal under
the Bankruptcy and Insolvency Act or any comparable statute, or if a bankruptcy petition
is filed or presented by such party or if a court of competent jurisdiction enters a judgment
or order approving any such petition or any petition seeking reorganization, arrangement
or composition of such party or its debts or obligations, or if a custodian or receiver or
receiver and manager or similar official is appointed for such party or any of its assets
( "Event of Default "), the party which is not the subject of the Event of Default shall have
the right to terminate this Agreement forthwith upon written notice to the party which is
the subject of the Event of Default;
(c) if, at any time during the Term, 1% of the Outlets listed in Schedule "B" hereto as of the
Commencement Date cease to do business or purchase Products pursuant to this
Agreement, then PBG shall have the right to terminate this Agreement upon written
notice to the Customer, such termination to be effective on the thirtieth (30th) day
following the giving of such notice; or
(d) if there is a change in control of the Customer, PBG shall have the right to terminate this
Agreement forthwith upon written notice to the Customer. For purposes of this Section
9.1(d), "a change in control of the Customer" means:
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(i) any sale, transfer, assignment, mortgage, encumbrance, lien, security interest, or
other disposition of fifty percent (50 %) or more of the then issued and outstanding shares
of the Customer;
(ii) any sale, transfer, assignment, mortgage, encumbrance, lien, security interest, or
other disposition of the then issued and outstanding shares of the Customer constituting
fifty percent (50 %) or more of the outstanding voting rights in respect of shares of the
Customer; and/or
(iii) the issue of shares of the Customer sufficient to dilute the holdings of the
shareholders of the Customer, as of the Commencement Date, to less than fifty percent
(50 %) of: (I) the then issued and outstanding shares of the Customer; or (II) the then
outstanding voting rights in respect of shares of the Customer.
9.2 In the event of early termination of this Agreement, the Customer shall reimburse PBG for all
advances and fees paid to the Customer and the Outlets, in respect of the unexpired portion of the Term
or the Contract Year for which it was paid, as the case may be, including, without limitation, those
payments set out in Article 5.0, on a pro rata basis. Such reimbursement shall be paid by the Customer
to PBG within thirty (30) days of termination. Notwithstanding the foregoing, the parties acknowledge and
agree that the exercise of any remedies available hereunder shall not limit the remedies available to
either party, whether in law or in equity, in the event of early termination of this Agreement.
9.3 Termination of this Agreement for any reason by either party shall not operate as a cancellation of
any indebtedness owing to one party by the other at the time of such termination or affect any other
accrued rights or remedies of the parties.
10.0 Trademarks
10.1 The Customer acknowledges and agrees that it has no right, title or interest in or to any
trademark, trade name, slogan, logo or other identification of the Products or PBG, and further agrees
that, as between the parties, any such trademark, trade name, slogan, logo or other identification are and
shall remain the sole property of PBG. The Customer agrees to give legal and proper notice to any and
all persons or entities, in accordance with any request or demand of PBG, in connection with any and all
uses of any such trademark, trade name, slogan, logo or other identification, indicating that the same is
the property of PBG (unless otherwise directed by PBG). Upon the expiry or any earlier termination of
this Agreement, the Customer shall immediately cease all use of such trademarks, trade names, slogans,
logos and other identification of the Products and PBG and shall either: (a) return to PBG all materials
bearing any such mark or marks; or (b) destroy, and provide PBG with evidence satisfactory to PBG of
such destruction, all such materials. The provisions of this Section 10.1 apply only to any trademark,
trade name, slogan, logo or other identification of the Products or PBG, and are not intended in any way
to apply to the Customer's name or identification, to which PBG claims no right, title or interest (except the
right to use the same in accordance with the terms and conditions of this Agreement).
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11.0 Notices
11.1 All notices, requests, demands, acceptances, payments, or other communications required or
permitted to be given or made to the Customer pursuant to the terms of this Agreement shall be given or
made in writing and sent by registered mail, postage prepaid, personal delivery, or, as applicable,
telecopier to:
Municipality of Kincardine
1475, Concession 5
RR #5
Kincardine, Ontario
N2Z 2X6
Attention: Recreation Director
Fax: (519)396 -8288
or such other address as may be given by the Customer to PBG from time to time.
11.2 All notices, requests, demands, acceptances, payments, or other communications required or
permitted to be given or made to PBG pursuant to the terms of this Agreement shall be given or made in
writing and sent by registered mail, postage prepaid, personal delivery, or, as applicable, fax to:
The Pepsi Bottling Group (Canada), Co.
925 -7 Street East
Owen Sound, Ontario
N4K 5P1
Attention: Ron Weiss
Fax: (519) 376 -8044
With a copy to:
The Pepsi Bottling Group (Canada), Co.
5205 Satellite Drive
Mississauga, Ontario
L4W 5J7
Attention: Legal Department
Fax: 905- 212 -7330
or such other addresses as may be given by PBG to the Customer from time to time.
11.3 All notices, requests, demands, acceptances, payments and other communications shall be
deemed to have been received when delivered (if personally delivered), or, if mailed, on the fifth (5th)
business day after the mailing thereof, or on the business day following transmission if sent by fax;
provided that, in the event of a mail strike or other interruption in the normal delivery of mail after mailing,
any notice, request, demand, acceptance, payment or other communication shall not be deemed to be
received by the parry for whom the same is intended unless the same is actually delivered to such party.
12.0 Representations and Warranties of the Customer and PBG
12.1 The Customer hereby represents and warrants to PBG, and acknowledges that PBG is relying
upon such representations and warranties, that:
(a) the Customer is a corporation organized and validly subsisting pursuant to the laws of
Kincardine, Ontario;
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(b) the Customer controls and/or operates all Outlets either by itself, as owner of the
applicable Outlets, or through written franchise or license agreements, the terms of which
extend beyond the Term;
(c) pursuant to the terms of its franchise and license agreements, the Customer has the
right, power and authority to grant all of the rights and interests granted to PBG
hereunder and to require its franchisees and licensees to deal only in the Products and to
adhere to the provisions of this Agreement, including, without limitation, the exclusive
beverage rights pursuant to Article 3.0 hereof;
(d) the Customer has the power, authority and capacity to enter into this Agreement and
perform its obligations hereunder, and the execution and delivery of this Agreement by
the Customer, and the Customer's compliance with the terms, conditions and provisions
hereof, has been duly authorized and will not conflict with or result in a breach of, or is
restricted by, any of the terms, conditions or provisions of any agreement, instrument or
arrangement, whether written or oral, to which the Customer is a party (or by which it is
bound) or constitute a default there under;
(e) the execution, delivery and performance of this Agreement by the Customer will not
violate any law, rule or regulation relating or pertaining to the Customer's rights or
obligations hereunder or applicable to any of its properties, assets or operations; and
(f) the Customer has secured all necessary third party rights in connection with this
Agreement (and made all related third party payments).
12.2 The Customer agrees and covenants to designate PBG as the sole and exclusive supplier of
carbonated soft drinks or other beverage products (except milk, hot coffees, hot teas, hot chocolates, and
alcoholic beverages) (whether in fountain beverage syrup, packaged product or other format) to the
Customer's franchisees and licensees, and shall take all steps necessary to ensure that its franchisees
and licensees comply with the terms of this Agreement.
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12.3 The Customer represents and warrants that Schedule "B" lists, as of the Commencement Date,
all Outlets, and identifies whether each such Outlet is Customer -owned Outlet, a franchisee Outlet or a
licensee Outlet. During the Term, the Customer shall promptly notify PBG in writing of each Outlet that is
opened, acquired, closed, sold or moved, and the relevant information pertaining thereto.
12.4 PBG hereby represents and warrants to the Customer, and acknowledges that the Customer is
relying upon such representations and warranties, that:
(a) PBG is a corporation organized and validly subsisting pursuant to the laws of the
Province of Nova Scotia; and
(b) PBG has the power, authority and capacity to enter into this Agreement and perform its
obligations hereunder, and the execution and delivery of this Agreement by PBG, and
PBG's compliance with the terms, conditions and provisions hereof, has been duly
authorized and will not conflict with or result in a breach of, or is restricted by, any of the
terms, conditions or provisions of any agreement, instrument or arrangement, whether
written or oral, to which PBG is a party (or by which it is bound) or constitute a default
there under.
13.0 Confidentiality
13.1 The Customer and PBG agree to keep this Agreement and its terms, as well as the information
which is disclosed to it by the other party in connection with the performance of this Agreement,
confidential and not to disclose this Agreement or its terms to any third party without the prior written
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consent of the other party, subject only to disclosure of such information to the party's auditors and legal
counsel and as required by law or legal process. The Customer further acknowledges and agrees that
the disclosure of the terms of this Agreement could reasonably be expected to significantly harm the
competitive position and /or significantly interfere with the general negotiating and business position of
PBG.
13.2 The parties acknowledge and agree that details of any public announcements, statements or
disclosure concerning this Agreement shall be jointly agreed to prior to the making of any such public
announcements, statements or disclosure by either party.
13.3 The provisions of this Article 13.0 shall survive the expiration or termination of this Agreement.
14.0 Indemnity
14.1 The Customer shall protect, indemnify and hold harmless PBG and its parent(s), subsidiaries and
affiliates, and its and their officers, directors, employees, franchisees, licensees, representatives and
agents, from and against any and all losses, liabilities, costs, expenses (including, without limitation,
reasonable legal fees), damages, claims, actions, judgments, and suits whatsoever arising from, based
upon, in any way connected with or relating to: (a) the acts or omissions of the Customer and its
franchisees and licensees, and its and their employees, servants, agents or representatives; (b) the
breach by the Customer of any of its obligations, covenants, representations or warranties hereunder; or
(c) any dispute of a third party in respect of the payments made by PBG to the Customer hereunder.
14.2 The provisions of this Article 14.0 shall survive the expiration or termination of this Agreement,
15.0 General
15.1 This Agreement shall ensure to the benefit of, and be binding upon, the successors and permitted
assigns of PBG and the Customer. This Agreement rescinds and supersedes all prior agreements
whether written or oral, between PBG and the Customer with regard to the subject matter hereof, and this
Agreement, including the schedules annexed hereto, constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof. This Agreement can only be amended in writing,
signed by all parties.
15.2 Any failure by the Customer or PBG to exercise any right granted herein upon the occurrence of
any contingency set forth in this Agreement will not in any event constitute a waiver of any such right
upon the occurrence of any such contingency. No single or partial exercise of any such right shall
preclude any other or further exercise of such right or the exercise of any other right. No waiver of any
breach of this Agreement shall be effective or binding unless made in writing and signed by the party
proposing to give the same and, unless provided in the written waiver, shall be limited to the specific
breach waived. The exercise by PBG or the Customer of any right or remedy provided in this Agreement
is without prejudice to the exercise of any other right or remedy provided herein or any other right or
remedy PBG or the Customer may have in law or equity.
15.3 This Agreement shall be governed by, and construed in accordance with, the laws of the Province
of Ontario and the federal laws of Canada applicable therein. Each of the parties hereto irrevocably
adorns to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any matter
arising hereunder or related thereto.
15.4 Except as otherwise set out herein, neither party hereto shall assign, transfer or delegate its
responsibilities herein to any third party without the prior written consent of the other party; provided,
however, that affiliates and /or local Pepsi franchised bottlers may act on PBG's behalf to fulfil the terms of
this Agreement. Notwithstanding the foregoing, PBG may transfer, sell, licence or assign this Agreement,
in whole or in part, to any affiliated entity without notice or consent.
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15.5 There are no representations, warranties or conditions of sale other than those expressly set out
herein.
15.6 Title and risk of loss to the Products purchased for the Outlets shall pass to the Customer or its
applicable franchisee or licensee immediately upon delivery of same.
15.7 Each party hereto is an independent contractor and has no authority or right to incur obligations
of any kind in the name of or for the account of the other party. Neither party shall be deemed to be an
associate, partner, principal or agent of the other.
15.8 Any default of either party to meet any of the terms and conditions of this Agreement will not give
rise to a claim by one party against the other, nor will it be viewed as a breach of this Agreement, where
such default is a result of a "Major Force" event. For the purposes of this Agreement, "Major Force" shall
mean an event or condition which is not controllable by the non - performing party, provided that: (a) the
non- performing party gives the other party prompt notice of the particulars of such event or condition; (b)
the suspension of performance is of no greater scope and of no longer duration than is required by such
event or condition; (c) the non - performing party uses commercially reasonable efforts to remedy its
inability to perform; (d) when a non - performing party is able to resume performance of its obligations, it
shall give the other party prompt notice to that effect and (e) such event or condition was not caused by
any negligent act, errors or omissions of the non - performing party or by failure of the non - performing
party to comply with any current law, regulation, ordinance, permit or license. Major Force shall include,
but is not limited to, acts of God, fires, riots, arson, drought, floods, earthquakes, wind, hail, invasion,
labour interruptions or stoppages, intervention by civil or military authorities, the subjection to government
regulations, or orders or acts of war (declared or non - declared).
15.9 PBG shall, at PBG's cost and expense, place and maintain insurance throughout the Term that it
deems adequate, sufficient and consistent with prudent industry standards covering both comprehensive
general liability and product liability, property and personal injury, induding death, and covering loss or
damage to Equipment on the premises of the Outlets supplied or owned by PBG under the terms of this
Agreement, and all vehicles, owned or leased, used by PBG in the performance of this Agreement,
having limits of not less than $5,000,000 in respect of any one occurrence. Upon request by the
Customer, PBG shall provide the Customer with proof of such insurance coverage.
15.10 Time is of the essence for this Agreement and each of its provisions.
15.11 the Customer hereby grants to PBG and PBG's agents and employees a reasonable and non-
exclusive right of access to the premises of the Outlets, for the purpose of fulfilling PBG's obligations and
exercising PBG's rights pursuant to the terms of this Agreement.
15.12 References to dollar amounts herein shall mean the lawful currency of Canada.
15.13 The division of this Agreement into Articles, Sections, Subsections and Schedules and the
insertion of headings herein are for convenience of reference only and do not form part of this Agreement
and are not intended to interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
15.14 If any covenant, obligation or provision contained in this Agreement or the application thereof to
any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement or the application of such covenant, obligation or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be affected thereby and each covenant,
obligation and provision of this Agreement shall be separately valid and enforceable to the fullest extent
permitted by law.
15.15 Funding Adjustment/Termination re Policy /Legislation Change. All funding set out in this
Agreement is conditional upon proposed product selection as of the date of this Agreement and is
calculated based on the inclusion of bottled water. Should any policy or legislation be implemented or
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enacted that impacts the Products offered in this Agreement, PBG shall have the right to alter any or all
funding under this Agreement and /or terminate the Agreement upon forty-five (45) days notice.
15.16 .Assignment Clause. - Customer shall not sell, assign, transfer or otherwise encumber any
interest in this Agreement without the prior written consent of PBG.
15.17 Purchasing from PBG. All Product must be purchased from PBG.
Please indicate your agreement with the above terms and conditions by signing this letter as indicated
below.
Yours very truly,
THE PEPSI BOTTLING GROUP (CANADA), CO.
Customer Name and Tide
Larry kt`caemer_ }-fa/ ov_
John dcgcsenro11, C
Signature and Date
PBG Foodservice Representative Ron Weiss
Signature and Date
PBG Foodservice Manager Lisa Searles
Signature and Date
PBG Director of Finance Greg Madan
Signature and Date
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SCHEDULE "A"
PRICES
Product (by Case) Invoice Price
591m1/ 24 csd & ncb $20.60
591m1/ 12 Aquafina Plus $14.90
591m1/ 24 Aquafina Splash $15.90
591m1/ 24 Aquafina Sparkling $15.90
591m1/ 24 Aquafina $13.95
450m1/ 12 Dole & Ocean Spray $14.15
473m1/ 12 Amp $25.60
710m1/ 24 Gatorade $35.85
591m1/ 12 Gatorade $14.53
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SCHEDULE "B"
OUTLETS
9648877
Davidson Centre Arena
601 Durham Street
Kincardine, Ontario
N2Z 1L6
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