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HomeMy WebLinkAboutCC Resolution 8524 (Pepsi Playmark Grant)RESOLUTION NO. 8524 A RESOLUTION AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael a contract, lease or agreement with PEPSI FOR PEPSI PLAYPARK GRANT FOR USE AT PICKLEWEED PAXK a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a Regular meeting of the City Council of said City held on Monday the 7th day of October , 1991 by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Thayer & Vice -Mayor Breiner NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Shippey & Mayor Mulrvan SIE M. LEONCINI, CITY CLERK C �IGINAL ��'zI/ PEPSI PLAYPARK AGREEMENT This agreement is entered into as of the 7th day of October , 1991, between Pepsi-Cola Company, a division of PepsiCo, Inc. ("Pepsi") and the City/Town of San xa f a e l located in the State of California (the "City/Town") regarding the construction and installation of a children's playground in the City/Town (the "Playpark") with the support of Pepsi as hereafter set forth. U of the rights and benefits inuring to Pepsi hereunder shall also inure to the licensed Pepsi-Cola bottler who services the territory in which the City/Town is located (the "Bottler"). A. CONSTRUCTION OF PLAYGROUND 1. Desienation of Area The City/Town shall, in consultation with Pepsi and its local Bottler, purchase or designate a parcel of land appropriate for construction and installation of the Playpark and shall prepare the designated site for construction of the Playpark. 2. Contracting with Builder: EauiDment SuDnlier The City/Town agrees to accept the play equipment from Pepsi through Iron Mountain Forge playground supplier and will go to competitive bid or itself arrange for the construction of the Playpark and the installation g f the playground equipment. The Town represents and warrants to Pepsi that: a) it will take all steps necessary to assure that the Playpark will be designed, manufactured and installed in compliance with any and all applicable federal, state and local laws, rules, regulations and ordinances. b) any contracts with the builder and equipment supplier for the Playpark will include the following provisions, as appropriate: (i) any equipment supplier shall provide proof that its equipment complies with the Consumer Product Safety Commission Guidelines for playground equipment, (ii) any equipment shall provide a certificate of insurance evidencing product liability insurance, general liability insurance and completed operations insurance, which insurance shall in all cases be in amount not less than $2,000,000 combined single limit covering bodily injury and b) cont. property damage from an insurer duly licensed in the state in which the equipment will -be installed and the certificates name both the City/Town and Pepsi as additional insureds; (iii) if equipment is to be provided by means other than through commercial manufacturer, the designer and/or engineer shall be duly licensed in the state in which the equipment will be installed and such parties shall provide a certificate or errors and omissions professional liability insurance in an amount not less than $1,000,000 which specifically names both the City/Town and Pepsi as additional insureds; and (iv) any equipment supplier and/or designers shall provide certification that the installation of the equipment at the Playpark has been completed in conformance with the specifications of its contract with the City/Town; and c. that the equipment installed in the Playpark has been installed over a protective fall cushion which is in compliance with the Comsumer Product Safety Commission Guidelines, which include the requirement that washed sand, pea gravel, wood or mulch chips in at least a depth of 12 inches be provided or that a 1.75 inch rubber mat be provided. 3. The City/Town represents and warrants to Pepsi that it is self insured with respect to the liabilities which it may incur pursuant to Paragraph 4 hereof and that, to the best of its knowledge, it will be in a financial position to meet such potential liabilities when they occur. 4. Indemnification The City/Town agrees to indemnify and hold Pepsi and its respective Bottler harmless from and against any and all claims, demands, actions, losses, liability damages, costs and expenses (including reasonable legal fees and expenses) arising out of: (i) any acts, whether of omission or commission that may be committed or suffered by the City/Town or any of its employees, agents or sub- contractors in connection with the performance or failure to perform any obligations under this Agreement, or otherwise in connection with the design, manufacture, installation, or use of the Playpark; (ii) the breach or alleged breach by the City/Town or by any of its employees, agents or sub -contractors of any of its agreements, undertakings, covenants, representations or warranties, express or implied, contained in this Agreement; or (iii) any action, claim or proceeding which may be made by anyone for injuries, including death to persons or damage to property, or otherwise made in connection with the use of the Playpark. The City/Town agrees to `a defend Pepsi and/or its Bottler upon its request against any such liability, claim, action or demand. Pepsi agrees to notify the City/Town promptly of any written claims or demands against Pepsi and/or its Bottler for which the City/Town is responsible hereunder. The provisions of this paragraph and the obligations of the City/Town hereunder shall survive indefinitely the expiration or termination of this Agreement. B. PEPSI'S OBLIGATIONS A-NrD RIGHTS, 1. Consideration Pepsi hereby agrees it will pay to Iron Mountain Forge the amount of Dollars lS 1 to assist in funding the cost of designing, manufacturing, constructing and installing the Playpark. Said payment shall be made within thirty (30) days following execution of this agreement or at such later time as the parties shall mutually agree. 2. Promotional Rights Pepsi and its respective Bottler shall have the right to conduct an advertising, consumer promotion and public relation campaign in. connection with the Plavpark and Pepsi's participation in the development thereof. The City/Town hereby agrees that Pepsi and/ or its respective Bottler may use the City's/Town's name in connection with such campaigns, and that the City/Town will assist and support Pepsi with respect to such advertising and promotional activities in any manner which may reasonably be requested by Pepsi. The parties specifically acknowledge that Pepsi and/or its respective Bottler shall have the right, but not the obligation, to use the following media in conjunction with its advertising and promotional campaign: television commercials; television tags; radio commercials; point of sale materials to be disseminated to retain accounts of Pepsi; newspaper advertisements; press releases and press conferences, and such other forms of publicity as Pepsi shall determine are appropriate. 3. Plavvark Sign The City/Town shall authorize Pepsi to prominently place a plaque in the Playpark designating the area as a "Pepsi Playpark". A full description and artist's rendering of said plaque as well as its manner of installation is attached hereto as Exhibit "A". 3 4. Exclusivity The City/Town shall not grant any sponsorship or promotion rights with respect to the planning, construction, dedication or operation of the Playpark to any parties ( other than Pepsi and its Bottlers) without the prior consent of Pepsi. C -MISCELLANEOUS 1. It is agreed that, from and after the date hereof. (a) the City/ Town shall be the sole and exclusive owner of all right, title and interest in and to the Playpark and the design thereof; and (b) Pepsi shall be the sole and exclusive owner of all right, title and interest in and to all of the materials created in connection with Pepsi's activities as described in Paragraph (B) (2) hereof, including, without limitation. all advertising, promotional publicity and other materials of any kind whatsoever created in connection therewith or relating thereto. 2. Each party hereto agrees that it shall not in any manner of form (including, but not limited to, in any business activity, product endorsement, catalog, advertising, publicity or promotion) use or employ any name, or any service mark, trademark, logo, symbol, design, corporate title or any other names associated with any other party's prior written consent except pursuant to this Agreement. 3. The failure by any party hereto to enforce at any time any one or more of the terms or conditions of this Agreement shall not be considered a waiver of such terms or conditions or of such party's right thereafter to enforce each term and condition of this Agreement. 4. Neither party hereto shall assign this Agreement in whole or in part, or any of their respective rights or obligations hereunder, without the prior written consent of the other. 5. This Agreement shall inure to the benefit of, and shall be binding upon the parties hereto and their respective successors and permitted assigns. F11 6. This Agreement has been made, will be performed and shall be construed in accordance with the laws of the State of California. Any controvery or claim arising out of or relating to this Agreement including, without limitation, the interpretation or breach thereof, shall be settled by arbitration in the State of California in accordance with the Commercial Arbitration Rules of the American Arbitration Association then obtaining, and judgement upon the award rendered by the panel of three (3) arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, this Agreement to arbitrate shall not bar any party from seeking temporary or provisional remedies in any court having jurisdiction thereof. 7. This Agreement may not be changed, modified or terminated except in writing signed by all of the parties hereto. This Agreement constitutes and contains the entire understanding among the parties with respect to this subject matter and supercedes any prior or contemporaneous agreement relating thereto, IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. PEPSI -COLA COMPANY, a division CITY OF SAN RAFAEL of PepsiCo, Inc. TITLE: BY: Dorothy L. Breiner, Vice -Mayor ATTEST: Jeanne M. Leoncini, City Clerk APPROVED AS TO FORM: �a "A, LAI_ (07G Gary T. Ragghianti, Attorney EXHIBIT A Placaue Specifications The sign will be made of porcelain enameling on stainless steel. They will be supported on each side by two posts 5" in diameter. The posts are made of galvanized steel pipe with an electrostatically applied blue dry powder finish. (Basically the Iron Mountain Forge Equipment.) The signs are 3 1/2 feet high by 2 1/2 feet wide and are 2 1/2 feet off the ground. The total overall height is 6 feet installed (per diagram). Also, the plaque will be framed so as not to leave any pointed or jagged edges. The posts will be reinforced with concrete with specific mowing strip consistent with Department specifications (8" beyond post area). The plaque will read: This Pepsi Playpark was designed and built by the Pepsi-Cola Company and (appropriate Dept. of Park and Recreation) with the help and support of this community. March 1992. 6 feet 2 I /2 fees .r V 2 112 feet v 3 1/2 fee: P OCT Oc '91 1133 IP1F-FAR' -^tGTON 1-314-756-0319 IRON � 1V MNTAIN FORGE Seotember 30, 1991 Ms. Tess.ie Belue City of San Rafael City Attorneys Officp- P . 0 . So:, 151560 San Rafael, CA 94915-1560 Dear Ms. >Belue: EXHIBIT B One Iron Mountain Drive PO Box 897 Farmington. MO 63640 P.1 Post -it'" brand fax transmittal memo 7671 I # of pages ► Qom,n From Co. p Co. C�7-e• 4LS0,s, �C�[ D�pt Phone N y Aird (. y!+ ai��o / S� • 7S`G kS' 9/ Fax kI/ /r- I/s Ci s2� y..Z Fax 3 Si• 7-0-,c ' O 7/ y This letter will confirm our warranty policy concerning all equipment manufactured by Iron Mountain Forge. It is our policy that the warranty stated for that product, follows the product. The purchaser of the product does not have a bearing on the fulfillment of any warranty claims. I believe this procedure is -fairly standard with any product manufactured in the U.S. I hope this will clarify any questions that you may have had concerning our warranty procedure. If you should require additional information, please feel free to contact me. Sincerely: Foss D. Gordon ` Executive U.P. Sales and Marketing CC: Joe Caulk - Pepsi 314 756-4591 1.800325-8828 FAX 1-314-756-0319