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
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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