HomeMy WebLinkAboutContract 1925 C2c
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 access to 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,
carrying Concessions for sale in a suitable container and calling aloud in 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 other type of event designated by the City as
a Third Party Event, whether wholly or partially organized, hosted, sponsored or otherwise
undertaken by a Third Party on the Property.
2. Grant of License: Scope. City hereby grants to Kick Back Cinemas, its officers,
employees, agents, and representatives (collectively, the "Kick Back Cinemas Parties"), a license
to use the Concession Stand solely for the Permitted Uses set forth in Section 3. 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
any other real property interest in or to any portion of the Property or Concession Stand.
(b) Needed Access. City shall provide to Kick Back Cinemas such
identification,badges, tickets or passes required for entry into the Property when being utilized for
a City Event for the purpose of permitting the Kick Back Cinema Parties to have access to and to
operate the Concession Stand and to otherwise Hawk Concessions during the City Event. City
shall also provide four(4)complementary tickets to Kick Back Cinemas for each City 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
Concession Stand during the Term of this Agreement solely for the following purposes, and for no
other purposes, unless agreed to in writing in advance by City in its sole and absolute discretion
(collectively, the "Permitted Activities"):
(a) During City Events, the sale of Concessions from the Concession Stand,
and the Hawking of Concessions on the Property, unless Hawking is otherwise restricted or
prohibited by the City for specific City Events;
(b) During Third Party Events, the sale of Concessions from the Concession
Stand and the Hawking of Concessions on the Property, unless Hawking is otherwise restricted or
prohibited by the organizer of the Third Party Event.
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
sale during City Events, fountain or bottled soda, bottled drinks, bottled water, cookies and chips
(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
generated from such sales at that specific City Event.
(c) Third Party Events. Kick Back Cinemas may, but is not obligated to, and
does not have any right (exclusive or otherwise) to, operate the Concession Stand, to Hawk
Concessions or to provide catering or other food and beverage services at Third Party Events,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 guests per 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 Receipts for each City
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 negotiate the price of Concessions with 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 beverages using 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
obtain and maintain a valid health permit for operation of the Concession Stand during the Term of
this Agreement as required by Riverside County, including but not limited to, food handlers cards.
This expense shall not be deducted as an expense from Gross Sales when determining the 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 responsible for any damage or maintenance costs caused by 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 Concession Stand. 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 Cinemas at the end of the Term and Kick Back Cinemas shall 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 Back Cinemas the following: an ice machine,Pepsi Soda Towers,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, cheese machines, condiment dispensers, and any other needed
equipment that may be used to sell Concessions not 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.
5
RN#4849-3950-2765 v5
(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 insurance shall 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
Cinemas Parties will be subject to coverage under any policy of insurance that 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, defend and hold harmless the Property, Concession Stand, City or City Parties from and
against any and all actual or alleged claims, and/or damages, liens, judgments, penalties,
attorneys' and consultants' fees, expenses and/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, defend the same at Kick Back Cinemas' sole expense by counsel reasonably satisfactory
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
successors and 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 requirements of any
government authority regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance (as hereinafter defined), or pertaining 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), 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.
7
RN#4849-3950-2765 v5
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's prior written approval,which City may withhold in its sole and absolute discretion.
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 addressed as 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 92058
City,
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 as possible 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
matters relating to the payment of its employees, including compliance with 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 data during 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,venue shall lie exclusively in the Central District 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: =.:�, Ah_A
Charles P.McClendon Name: '
City Manager Its: ; .'f r1
9
RN#4849-3950-2765 v5
I
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•,
RIV#4849-3950-2765 v5
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
it
. - 4..--- -..4. i-
Vii• -• .
, U111111w 461 , ':• : . .. kjp., 1_.;• • .
1_ ,IiL--!` r 1 r , •
S vlis
.... ,...491 .. ••• ...Mt~ 14 * ..
s
1
aililli
s i
Tir
--- ".igni
441 3
• r
s
RN#4849-3950-2765 v5
EXHIBIT"C"
PEPSI BEVERAGE AGREEMENT
PEPSI BEVERAGES COMPANY
BEVERAGE SALES AGREEMENT
This sets forth the agreement("Agreement')between Bottling Group,LLC,a Delaware limited
liability company,and its affiliates and/or respective subsidiaries collectively comprising Pepsi
Beverages Company with an office located at 6659 Sycamore Canyon Blvd., Riverside, CA
92507("Pepsi")and Cathedral City,with its principal place of business at 68700 Avenue Lalo
Guerrero, Cathedral City, CA 92234 on its own behalf,on behalf of its affiliate+and wholly-
owned subsidiaries, and on behalf of its individual franchisees and licensees, if any (the
"Customs'". The support described below is in lieu of any other discounts, allowances or
rebates to which the Customer might otherwise be entitled from time to time. When fully
executed,this Agreement will constitute a binding obligation of both parties until expiration or
termination.Pepsi and Customer are sometimes hereinafter individually referred to as"Party"or
hereinafter collectively referred to as the"Parties."
Definitions
As used in this Agreement, the following capitalized terms have the respective meanings
assigned thereto below.
"Beverage" or "Beverages" means all carbonated and non-carbonated, non-alcoholic drinks,
however dispensed during the Term of the Agreement. "Beverage" or"Beverages"excludes
bottled water,alcoholic beverages and cannabis infused beverages.
"Cases"means cases of Packaged Products (as defined herein)purchased by Customer from
Pepsi during the Term,initially delivered in quantities of 24 plastic bottles,aluminum cans,glass
bottles(or equalized 24 pack cases,e.g.,two 12-pack cases),eight 2-liter plastic bottles,or such
other size,quantity and type of containers as Pepsi may make available from time to time during
the Term.
"Competitive Produce"means any and all Beverages other than the Products.
"Equipment'means equipment loaned by Pepsi to Customer to dispense,store or cool Products
(as defined below),as more fully described fn Section 4 herein.
"Gallons"means gallons of the Poatmnr Products purchased by Customer from Pepsi during the
Term.
"Outlets"means existing, future and after-acquired(provided not already under a pre-existing
beverage agreement with Pepsi) outlets owned, operated, managed, leased or franchised by
Customer under the Cathedral City trademark[s]as listed in attached Exhibit A(and any related
or similar trademarks, including any successor trademarks) including the parking garages or
other Customer-owned/controlled/operated surrounding areas located at or within those facilities
and shall include any outlet or other facility in Customer's system that may be opened or
acquired by Customer now or in the future,including under different concept and/or trademark
during the Term.This excludes beverages within City Hall,and City park properties or facilities,
#6575-1
RIV#4849-3950-2765 v5
C i PEPSI BEVERAGES COMPANY
unless the Parties mutually 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 curratt list of Pepsi's Packaged Produclll is listed in attached
Exhibit B which maybeamended by Pepsi from time to time.
"Postalix Protbu:is"means Beverages 901d 11J1d/ordistrbuted by Pepsi and 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 exceeds a 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,i nthe event the VolumeThreshold
is not meton orbeforethe date indicated above,then the Tmn will automatically extend forthe
period oftime nccessary until the Volume Threshold has been met(the'A uttHlUltic Extmsionj.
Except forapplicable Rebates,which may be eamed du ring theAutomatic Extension,Pepsi wil I
not provide anyotherfundingtoCustomer.
2. Performance
This Agreement,including all of Pepsi's support to Customer as desciil>ed below.is contingent
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:ees to take all necessary steps to ensure that the Products are the exclusive Beverages of their
respective types sold, dispensed or otherwise made available, or in any way advertised,
displayed, represented or promoted at or in connection with the Outlets by my method or
through any 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,Beverage products licensed by,or produced by bottlers 1 icemed
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
RIV#4849-3950-2765 v5
PEPSI BtVERA(iES COMPANY
(C) Fountain Products. Customer agrees to 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
to resell the Postmix Products either to I!Ol laffil iated outlets or to consumers in any form 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
disposable cups\.A.ncilltuy Prodllcd9 exclusively ftom Pepsi.
(E) Advertising Rigtts.Pepsi may advertise and promote its Products in and with respect to
Custom.er and its Outlets upon mutually agreed to terms and conditions.Inaddition,Customer
must display appropriate brand identification for each Product served on all menus(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, in writing, of any Outlet
which isclosed,sold or otherwise disposed ofdwing the Tenn so that the Parties may promptly
update Elllbit A.
(G) Product Mn; Minimum SKU'Brud Requirement. Customer must mandate the
distribution of a minimum core assortment of Products, including a mix of both Postmix
Products mid Packaged Products at each ofthe Outlets throughout the Tenn,as identified by
Pepsi.based on F.quipment type at the 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
extent any prospective Outlet(s)are bcated outside the territories serviced by Pepsi,then Pepsi
may,upon request by the Customer, use commercially reasonable efforts to fiu:ilitatc an
agreement between the Pepsi-Cola bottler servicing the applicable territory and the Customer
with tams flUbstantially similar to the terms of this Agreement. Fwthermore,Customer agrees
not to disM'bule or resell the Products,directly cr indirectly,outside the territories serviced by
Pepsi and shall cause itspurohasing representative to abideby suchterritorial rest fictions.
3. Funding
Provided Customer is not in breach of this Agreement,Pepsi agrees to provide Customer with
the funding described below.
(A) Annual Sponaonhip Support Fundi. Pepsi agrees to provide Customer with annual
sponsorship support funds inthe 11D1 OUDt of Seven Thousand US Dollars($7,000),payable to
Customer within ninety(90)days after the later of(i)the first day of the Term or(}the signing
of this Agreement by both Parties(the ".A.nnulll Sponsorship Support Frutb'). The Annual
Sponsorship Support Fllllds are earned by Customer over the Tmn and may be iacreased to
include additional Outlets acquired by Customer. I n the event of early termination for any
reason othel"than an uncured material breach by Pepsi pursuant to Section 6(A)herein,the
#6575-1
RN#4849-3950-2765 v5
C.V PEPSI BEVERAGES COMPANY
unearned Annual Sponsorship Support Funds will be repaid to Pepsi pursuant to the terms of
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 Support will be used and spent by Pepsi to pay for
umbrellas and ice barrels,as mutually agreed to by the Parties.Customer acknowledges and
agrees that unused Marketing Support in any Ycarwill notbecarried overto asubsequent Year
andwill notbe redeemable for a cashpayment.
(C) Rebates.Each Year throughout the Tenn,Pepsi agrees to calculate the total number of
eligible Cases and Gallons purchased by 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 each Year. The Parties agree that Pepsi will not accrue 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
*The following YrOdUCtS are a.eluded from Rebates:12 and24 o z.CSDs,169Aquafina
**24-pk or uivalent(e.g.,two(2)1 2.pk)
(D) Commfssion1Pepsi shall provide Customer with commissions,as a percentage of the
actual cash C'Clllh kr bag'or"CIB')collected by Pepsi from the Vending Machines placed at
the Outlets,less any applicable government-imposed taxes/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 be mutually agreed upon by 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 make all pertinent revenue and sales records respecting the Vending Machines
#6575-1
RfV#4849-3950-2765 v5
aPEPSI BEVERAGES COMPANY
availableto Customer.Customer agrees that it isresponsible forreviewing such rccotds
and that any claim or dispute relating to the Commissions must be brou&ht by Customer
in writing within one(1)year of the date such Commissions payment is due.Customer
further acknowledges and agrees that 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 as may be required by applicable laws or as reasonably necessary to
respond to legislative acts in order thattheCommissionRateremains costneutral.
(3)Vend Price.The initial vend prices and minimum scheduled incmi.ses that are
necessary for Customer to qualify for any Commissions are set forth in the Commission
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,CODSUIIICII I or
otherwise).Thepass-through of any such govenmmntally imposed fees,deposits,taxes or
charges on the Products will be in addition to any acheduled Vend Prices increases 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
used to display and merchandise the Products asreasonably determined by Pepsi,and subj ectto
applicable local law,n]l.eorregulation.Customer willmt use th e Equipment to display,stock,
advertise,sell or maintain any other products(including on the exterior ofthe 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 in good 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"Vaulbtg Machina'),Pepsi will have the additional responsibility for(i)stocking
the Vending Machines withtheProducts and(ii)collecting,for its own account,all cash monies
from the Veruling Machines and for all related accounting for collected monies. Customer
agrees to provide reasonable assistance to Pepsi in apprehending and prosecuting vandals. Pepsi
shall not be obligated to pay Commissions on docmnented revenue 1088es resulting 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
RIV#4849-3950-2765 v5
PEPSI BEVERAGES COMPANY
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
emergency repairs and receive technical assistance related to the F.qupment after business hours.
Pepsi will promptly respond to each Customer request,and will use reasonable efforai to remedy
the related Equipment problem as soon as poSSIble,however because delays in service may be
caused by factors well outsideofPepsi'scontrol,Pepsi's scrvic:crecord will be measuml 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
other governmentally imposed charges(whether tical, state, federal or judicially imposed on
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
anypricing cap or notification restrictions that may bespecified inthis Agreement
6. General Ten 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 breach within thirty(30)days of such uoticc. Iffor any reason Customer closes one or 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
the foregoing,this paragraph will not apply to seasonal Outlet dosures with Pepsi prior 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 Customer will 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 Funding previously advanced by
Pepsi but not earned by Customer pursuant to the terms of this Agreement. With regard
to the Annual Sponsorship Support Funds,if any,the amount of such reimbursement will
#0575-1
RIV#4849-3950-2765 v5
CI PEPSI BEVERAGES COMPANY
be the result of multiplying.the Animal Sponsorship Support Funds by a fraction,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 reimbursement for the cost of installation, service and
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's average 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 against amounts not paid by Customer or its Outlets for Products ordered from and
delivered by Pepsi and any and all balances due and payable to Pepsi pursuant to this.Agrccment.
(E) Non-Disclosure. Except as may otherwise be required by law or legal process or as
reasonably necessary for either Party to enforce its rights hereunder,neither Party will disclose to
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 assign and transfer this 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 assume all
liabilities of the assignor hereunder. In the event that a third party acquires Customer or
substantially all Outlets orifCustomer isacquired or merges with a third party,Customer will,in
connection with such transaction,cause the acquiring party/maged entity,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
Agreement by the acquiring party or merged entity within ten(10)days following the closing of
the transaction. Customer will be in breach of this Agreement and Pepsi may,at its option,
terminate this Agreement effective immediately and Customer will pay to Pepsi all sums
specified inSection 6(B)herein.
#6575-1
RIV#4849-3950-2765 v5
PEPSI BEVERAGES COMPANY
(G) Governing Law. The laws of the state of California govern all matters arising out of
this Agreement.
(H) Price Dthepancy.Any price discrepancy claim mustbe submitted t.o Pepsi within 36S
days ofthe date of the invoice in question.If Customer makes aprice discrepancy claim 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 Customer makes a price discrepancy claim from 91 to 365 days after the date of invoice,in
addition to the written request as specified above,Customer mnst submit to Pepsi acopy ofthe
invoice inquestion,copies of any check remittances pursuant to the invoice in question and any
additional supporting documentation.
(1) Tu. Neither Pepsi nor its affiliates will be responsible for any taxes payable,fees or
other tax liability incurred by Customer in connection with the consideration or any other fees
payable by Pepsi under this Agreement.IfPepsi ischarged common area maintenanoc 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. Pepsi willoot be responsible for any delay or lack ofdelivezy resulting
directly or indirectly from any foreign or domestic embargo,product detention,seizure,act of
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
manthat are beyo ndthe controlofPepsi or that ofthe suppliers to Pepsi unless such contingency
is specifically excluded in anotherpart ofth 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 any other rights or remedies.
Any waiver must be in writing and signed by the Party waiving the rights.
(L) Relationship of the Parties. The Parties are independent contractors with respect to
each other.Nothing contained inthisAgreementcreates ajoint venturepartnership between the
#6575-1
RIV#4849-3950-2765 v5
PEPSI BEVERAGES COMPANY
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 counsel drafted 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: Pepsi Beverages Company, 1111
Westchester Avenue,White Plains,NY 10604,Attention:Law Department or to such addresses
88 the Parties may subsequently provide inwriting.Notice will be deemed to have been 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 Parties have not entered into new agreement by the ninetieth daypriorto expiration of
the Term,Customer will be free to enter into discussions/negotiations with third parties except
that Customer hereby grmts Pepsi the absolute right offirst refusal to match any bona fide offers
made by a thirdparty with respect to Beverage pouring rights/sales at the 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
Parties agree that beverage type/category and not brand names will be considered for the
pw:poses of determining amatch. Inthe event that Pepsi declines 1 D match such offer,or fails to
respOnd within the fifteen(15)day period,then Customer will be free to enter into an agreement
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
deduct Funding as an offset to amounts not paid by Customer or 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's exclusive 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 Agreement may be amended or modified only by a writing signed by each of the
Parties.
(R) Representations. The Parties, represents and warrants to the other Party that(1)the
"116575-1
RIV#4849-3950-2765 v5
•
• •I PEPSI BEVERACiES CDMRINY
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 possesses legal authority to enter into and perform the terms
and conditions of this Agreement.
IN WITNESSWHEREOF,the undersigned have caused this Agreement to be duly executed as
ofthe date set forth below.
Bottling Group,LLC Cathedral City
Print Ni PrintName:CharlesP McClcodon
Tjpa
TS R CZ w ffi5(dQ-') Title City Manager
Dame: 12121 2011 Date: //— .:J..'7-/CI
#6575-1
RIV#4849-3950-2765 v5
CI PEPSI BEVERAGES COMPANY
EXHIBIT A
Customer Outlets
Downtown Festivals
- Snow Fest
- Taste ofJalisco
• Food Truck Mash Up
• Cathedral City LOBT Days
• Easter Kidapalooza
• Coachella Valley Battle in the Desert
• Tejano Music Fest
• Halloween Spooktacular
• Cathedral City Hot Air Balloon Fest
• Movies intheParle
Exclusivity for all cvenfll at the Cathedral City Community Amphitheater
Onevending machine insidetheCathedral CityCommunityAmphitheater
#6S/S-1
RIV#4849-3950-2765 v5
■▪C I PEPSI BEVERAGES(UMPA\1
EXHIBIT B
Products and Prces
#6575-1
RIV#4849-3950-2765 v5