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Contract #: 019792 - From: 10-01-2012 To: 09-30-2015 - Coca-Cola Bottling Company of Northern New England - Town of North Andover
Enjoy Coca-Cola Bottling Company of Northern New England, Inc. One Executive Park Drive Bed4ord, New Hampshire 03110-6913 603 627-0627 . Fax: 603 627-1166 October 11, 2012 Town of North Andover 120 Main Street North Andover, MA 01845 To Whom It May Concern, I, Bryan Riddell, am the Chief Financial Officer of the Coca-Cola Bottling Company of Northern New England, Inc. This letter is to inform you that Seacoast Coca-Cola located at 118 Stard Rd, Seabrook, NH is a division of Coca-Cola Bottling Company of Northern New England, Inc. Sincerely, Bryan Riddell Chief Financial Officer Coca-Cola Bottling Company Of Northern New England, Inc URBELIS & FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 CAROL HADAR MCGRAVEY OF COUNSEL e-mail chm@uf-law.com October 4, 2012 Raymond Santilli Assistant Town Manager North Andover Town Offices 120 Main Street North Andover, MA 01845 RE: CONTRACT WITH COCA-COLA BOTTLING COMPANY OF NORTHERN NEW ENGLAND Dear Ray: Telephone 978-475-4552 Telephone 617-338-2200 Telecopier 617-338-0122 Enclosed please find the above -referenced contract, which has been approved as to form. Very truly yours, � e Carol Hajjar McGravey CHM/kmp Enclosure s:\wp51\work\n-andove\corresp\santilli.ltr - contracM.docx TOWN OF NORTH ANDOVER 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Raymond T Santilh Assistant Town Manager Attorney Carol McGravey Urbelis & Fieldsteel, LLP 155 Federal Street Boston, MA 02110 Dear Ms. McGravey: October 1, 2012 TEL (978) 688-9516 FAX (978) 688-9556 Enclosed please find for your review and approval three (3) original contracts, with accompanying documentation, between the Town of North Andover and Coca-Cola Bottling Company of New England to furnish and deliver bottles of carbonated soft drinks, water, and sports drinks to the Youth Center for the period of October 1, 2012 through September 30, 2015 in per the Invitation for Bids issued on August 20, 2012. Thank you in advance for your attention to this matter. Sincerely, Raymond T. Santilli Assistant Town Manager Enclosures TOWN OF NORTH ANDOVER 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Raymond T SantilliTEL (978) 688-9516 Assistant Town Manager (.1".( e, #� FAX (978) 688-9556 September 13, 2012 Mr. Bryan Riddell Vice President/Secretary Coca-Cola Bottling Company Of Northern New England 118 Stard Road, P.O. Box 2209 Seabrook, NH 03874 Dear Mr. Riddell: The Town of North Andover has decided to award a contract to Coca-Cola Bottling Company of Northern New England to furnish and deliver bottles of carbonated soft drinks, water and sports drinks for the vending machines at the North Andover Youth Center for the period of October 1, 2012 through September 30, 2015 in accordance with the Invitation for Bids issued on August 20, 2012. Enclosed please find three (3) original standard Town of North Andover contracts for appropriate review and signature. Please return the signed contract documents and all required accompanying paperwork to my attention as soon as possible. If you have any questions and/or concerns, please call me. Sincerely, Raymond T. Santilli Assistant Town Manager Enclosures TOWN OF NORTH ANDOVER CONTRACT CONTRACT# DATE: This Contract is entered into on, or as of, this date by and between the Town of North Andover (the "Town"), and Contractor: Coca-Cola Bottling Company of Northern New England Address: 118 Stard Road P.O. Box 2209 Seabrook, NH 03874 Telephone Number: 603-926-0404 Fax Number: 603-926-0347 This is a Contract for the procurement of the following: To furnish and deliver bottles of carbonated soft drinks, water and sports drinks for the vending machines at the North Andover Youth Center for the period of October 1, 2012 through September 30, 2015 in accordance with the Invitation for Bids dated August 20, 2012 2. The Contract price to be paid to the Contractor by the Town of North Andover is: October 1, 2012 through September 30, 2013 20 oz bottles of carbonated soft drinks $15.60 per case 20 oz bottles of water $ 8.40 per case 20 oz bottles of sports drink $16.80 per case October 1, 2013 through September 30, 2014 Price increase not to exceed 3.0% from previous year October 1, 2014 through September 30, 2015 Price increase not to exceed 3.0% from previous year Payment will be made as follows: Upon delivery and receipt of invoice, net 30 (Rev 5-2007) Contract by and between Town of North Andover and Page 1 Coca-Cola Bottling Company of Northern New England 4. Definitions: 4.1 Acceptance: All Contracts require proper acceptance of the described goods or services by the Town of North Andover. Proper acceptance shall be understood to include inspection of goods and certification of acceptable performance for services by authorized representatives of the Town to insure that the goods or services are complete and are as specified in the Contract. 4.2 Contract Documents: All documents relative to the Contract including (where used) Instructions to Bidders, Proposal Form, General Conditions, Supplementary General Conditions, General Specifications, Other Specifications included in Project Manual, Drawings, and all Addenda issued during the bidding period. The Contract documents are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the document is to include all labor and materials, equipment and transportation necessary for the proper performance of the Contract. 4.3 The Contractor: The "other party" to any Contract with the Town. This term shall (as the sense and particular Contract so require) include Vendor, Contractor, Engineer, or other label used to identify the other party in the particular Contract. Use of the term "Contractor" shall be understood to refer to any other such label used. 4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the services are performed, or the goods delivered, in accordance with Contract documents, as modified by approved Amendments and Change Orders. 4.5 Goods: Goods, Supplies or Materials. 4.6 SubContractor: Those having a direct Contract with the Contractor. The term includes one who furnished material worked to a special design according to the Drawings or Specifications of this work, but does not include one who merely furnishes material not so worked. 4.7 Work: The services or materials contracted for, or both. 5. Term of Contract and Time for Performance: This Contract shall be fully performed by the Contractor in accordance with the provisions of the Contract Documents on or before September 30, 2015, unless extended pursuant to a provision for extension contained in the Contract documents at the sole discretion of the Town, and not subject to assent by the Contractor, and subject to the availability and appropriation of funds as certified by the Town Accountant. The time limits stated in the Contract documents are of the essence of the Contract. 6. Subject to Appropriation: Notwithstanding anything in the Contract documents to the contrary, any and all payments which the Town is required to make under this Contract shall be subject to appropriation or other availability of (Rev 5-2007) Contract by and between Town of North Andover and Page 2 Coca-Cola Bottling Company of Northern New England U 0 0 0 0 py 0 0 0 0 U 0000 0 ) ^" E� � 69 � � a 6s It C.) U U a +� U O 00 M 1�0 A V� N es M cp� O A M - N (-4 6s 69 6R 69 a U U N N U Cd Cd Cd a U U U 'L a a O O O 00 o Vn 00 �c O O A 69 69 69 (� U 0 0 0 0 py O N O N O 0000 0 ) ^" E� � 69 69 69 LCd 6s 6s C.) U U a +� U O Cd N U O A 00 6s N es 0� 6 s O H I U oC> 0 0 0 4) 00 o O l O 0000 0 ) ^' M N V 6s 69 LCd 6s 6s C.) U N 10 Okn O O 69 o 6s O E- U oo H O A M - N U 69 69 69 6R a U N U N a� a U U U 'L a cn o �o .b r- O A 6s O 6s (~ O x O 'b o 'ti � o b o CA 0 O 0 0 0 I +� 0 0 0 I 0 0 0 O O O N., vvi .0 vUi O O O c vUi O N N U oC> 0 0 0 4) 00 o O l U 0000 0 ) ^' H 6s N 6s 6s 69 PL- 6s 6s U U 'IT U cl 10 00 >~ A °. �° 69 69 o 6s O E- U oo H O A 00 r- f"� 69 69 69 6R U N U N U a U U U 'L a cn �o 00 r- O A 6s 6s 6s (~ U 0 0 0 0 a _ 00 I N O l O 0000 p ^' H 6s 6s 6s 6s 69 69 6s 6s U U 'IT U cl U 00L F- >~ A °. �° 69 69 o 6s O E- U 0 0 0 0 0 �. t- 000 VV) N 0000 p M H 69 � N F-+ 69 69 6s 6s 6s N U U U 00 H U U vii U °� U oo H O A 00 r- O O 0 O O O M N U a a� cn o .b O o 'ti � b o CA 0 0 0 0 I 0 0 0 "D "C N., L .0 vUi O O O c vUi O O O N N N N N U 0 0 0 0 0 �. t- 000 VV) N 0000 p M H 69 � N F-+ 69 69 6s 6s 6s N U U U 00 H U U vii U °� U oo H O A 00 r- O O U 0 0 0 0 0 i, V'1 p 00 llC O O M �o M - .-r N -+ M — M CdN� O M H 69 69 69 69 6s N �+Q a C)o 00 H O ds ros Qq A 0 N (n N O Ln M U O O O M N U CL a� cn L O o � � -o o CA o 0 0 0 I vUi O O O N N m cy- tq — r) 0 B 0 m — o cu - w FF 'o ac tQ a ka (Z) OA 0 m WE A 3 fD -03 0 A :7 o z;- x 0 rD C, P,J w 0 000 '0 W 14 10 4 �j NJ 60 W'o -N 14 0 0 0 a APPENDIX A - PRICE PROPOSAL The Contract will be awarded to the responsible, responsive bidder offering the lowest aggregate price for the products offered and delivered for the period of the proposed contract. All prices are to remain firm for the duration of the Contract. *NOTE: All unit prices listed will include inside delivery. Year 1— October 1, 2012 through September 30, 2013 Description Quantity 20 oz bottle carbonated soft drink 350 cases 20 oz bottle water 100 cases 20 oz bottle sports drink 200 cases Unit Price Total Price $ /67,60 /case $ _ & 45' $ 9, Bio /case $ , 3 3- $ /6.30 /case $ , 70 TOTAL $ /170 Year 2 — October 1, 2013 through September 30, 2014 Description Quantity Unit Price 20 oz bottle carbonated soft drink 350 cases $ 20 oz bottle water 100 cases $ 20 oz bottle sports drink 200 cases $ No -1 & Ex4Ec A 301p Year 3 — October 1. 2014 through September 30, 2015 Total Price /case $ /case $ /case $ TOTAL $ Description Quantity Unit Price Total Price 20 oz bottle carbonated soft drink 350 cases $ /case $ 20 oz bottle water 100 cases $ /case $ 20 oz bottle sports drink 200 cases $ /case $ TOTAL $ /110 ? rO C -x CEEA 3 �O Town of North Andover IFB Page 7 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center Addenda are acknowledged: Signature Business Name Business Address //8 ShqA:j �Od Stq/azouk AIH 0 37y Business PhonW6p3) ga6-0 qO y Fa�(jj 3 qRG - ©��17 Name of Person Authorized to sign Price Proposal at7767U/ Title of Person Authorized to sign Signature of Above Person Proposal Town of North Andover IFB Page 8 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center CERTIFICATE OF VOTE At a duly authorized meeting the Board of Directors of the Cc/'i A0.1/1n Z doL 07 held on AwJ aU, vlj it was e -f wv"#4E-w -'ro;v VOTED, THAT -AAy',✓ le"dye-11 VP 5 �,�� hp (Name) (Officer) G°m -Cara � . ldlor,�4,z y ,r of AIF,) ��'/ .�d be and hereby is authorized to execute contracts and bonds in n"W - ea/�'. ,'&' y of the name and on behalf of said Wbr4h n-„ olr-&y �„�/r,,,d , and affix its corporate seal hereto; �— Caca -Coir tav�Fl �•� � �c�� rk'Ly a� and such execution of any contract or obligation in the name of ?E) lgrj _ on its behalf by such officer under seal of shall be valid and binding 0 -Foca- C-la&4ai 1�„�Campnr� E -F upon ,�t��r 44,or,, ze2v w , I1 (.©w+X"y C'"f I hereby certify that I am the clerk of the above named A;1+ ,,FrA A cj ins (AA and that 13) ri#' le, jj e is the duly elected officer as above of said C o,v -644 )5a#114' of and that the above vote has not been amended or rescinded and remains in full force and effect as the date of this contract. (Da e) �ecee / y Town of North Andover IFB Page 21 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center CERTIFICATIONS CERTIFICATE OF NON -COLLUSION The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean natural person, business, partnership, corporation, committee, union, club or other organization, entity, or group of individuals. r Sign re w^ Print N me & Title Date Company Name CERTIFICATE OF TAX COMPLIANCE Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b) �.q /3,Ay,g,V lre,�IJc /l , authorized signatory for .0^, 46-41 ens i Name of individual Name of contractor do hereby certify under the pains and penalties of perjury that said contractor has complied with all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to taxes, permit or other fees, reporting of employees and contractors, and withholding and remitting child support. na re Date Town of North Andover IFB Page 20 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 0 The Contract well be awarded to the responsible, responsive bidder offering the lowest aggregate price for the products offered and delivered for the period of the proposed contract. All prices are to remain firm for the duration of the Contract. *NOTE: All unit prices listed will include inside delivery. Do 20 oz bottle carbonated soft drink 350 cases 20 oz bottle water 100 cases 20 oz bottle sports drink 200 cases (W -r 1.�®A3 h wam eu*.e®l 17r 30.0% Rogd omn Qgmtty 20 oz bottle carbonated soft drink 350 cases 20 oz bottle water 100 cases 20 oz bottle sports drink 200 cases MW 11.4 t ro�aset y�l,e 3<!3.201g Damilption ouantity 20 oz bottle carbonated soft drink 350 cases 20 oz bottle water 100 cases 20 oz bottle sports drink 200 casts Unit price $19 . f n—Aase $1 TOTAL Unit Price G f .6 �Ci•. /case $ , O /,,,ase TOTAL Total Pri -00 2-'2L_: 00 %, 0C) Total Price . U gg 0o 00 ' 00 TOTAL Town of North Andover 1FB Page 7 of2l Carbonated Soft Drinks, water & Sports Drinks — Youth Center Addenda are acknowledged: Signature Business Business Business Phone 5C - ?S 4 -,-9 74 2 _Pax _ 5*65' - ;RF(I - LO�rl Name of Person Auth©*iz riga Pri; a Proposal xitle of Person Authorized to sign Price i%posal ;�� Signature of Above Person Tom of Nosh Aadover ME Per 8 of 21 Carbonated Soft Dnnkg, Weer & Sporn Drinks — Youth Center Bidders may contact the Contact Person for this IFB in the event this IFB is incomplete or the bidder is having trouble obtaining any part of the IFB electronically through the Town website (mm townofnortha dover.com), including, and without limitation the form and attachments. Bidder with disabilities or hardships that seek reasonable accommodations, which may include the receipt of IFB information and/or addenda and/or modifications in an alternative format, must communicate such requests in writing to the contact person, and reasonable accommodation will be made by agreement with the contact person on behalf of the Town of North Andover. 4. Mnimum Requirements Each bidder must demonstrate that it meets the following minimum requirements: A. Contractor must demonstrate a minimum of five (5) years experience providing the services required in the Scope of Services. B. Contractor shall submit a complete list of all similar contracts performed in the past two/ (2) years with contact names and telephone numbers. 5,ee- c,,4-6 acs,,, �,zo i -- L� C. The contractor shall furnish all labor, equipment, and'vehipf" as required for work in accordance with the scope of services. - D. Unit prices quoted shall include delivery. -- E. Unit prices shall remain firm for the specific period of the contract. � Fx� 1;� 'e9' F. Submission of required statements and forms. 5. EadmOd. Qlaantities The quantities listed in Appendix A are simply estimates for bid purposes only. The Town will not be obligated to purchase in any specific quantity during the period of the contract. 6. Scorn of Services Company to furnish and deliver bottles of carbonated soft drinks, water and sports drinks for the vending machines at the North Andover Youth Center located at 33 Johnson Street. o Company must provide one (1) indoor machine and two {2) outdoor machines - C� 6 o Beverages must be 20 oz bottles `- il. Q o Weekly delivery into building of 20-30 cases of product o Deliveries must be made no later than 2:00 p.m. on the scheduled delivery day _ CL. L" -'J Town of North Andover IFB Pager 3 of 21 Carbonated Soft Drinks, Water & sporm Drinks — Youth Caster P'-CP6 , W : �l ��� d t n u r� ►`moo L: c �,`,n c, 04 " rc'rP7 10- , ��, ��.� 5(,!(, f t t Z rt -",A- *A Y,n mt, 4 �� � �CX9 . _ � d }0 bw. e.tkA-,�- o Company Must Make Youth Center aware of any promotional event and/or services o Company must be willing to donate 20 cases of product per year for Youth CRter fundraisers `�.,� ir.3 ; t p �2 uZ),,(c Up -}+'a 7. EvahLation of Bids Bids will first be examined for their responsiveness to what is requested inthis IFB. Responsibility of the bidder will then be ascertained. Finally, the aggregate price for the products offered and installed by each responsive and responsible bidder will be calculated for the period of the proposed conftw. The Town is required to award the contract to the lowest responsive responsible bidder. K Responsiveness Bidders must completely fill out and submit the bid form and all other required forms. All supplies and services that are the subject of the bid must meet the minimum standards and Specifications set forth in the scope of services including the standards by which the procurement officer will determine acceptability as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose. Bidders must demonstrate that they meet the following measures of responsibility. The Town will not award a contract to any bidder who cannot furnish satisfactory evidence of his ability and experience in this type of work and that he has sufficient plant and capital to enable hen to prosecute and complete the work as outlined in the Scope of Services. The Town may make such investigations as it deems necessary to determine the above and a bidder shall furnish any information requested in this regard. All costs not listed on the bid price sheet will not be considered part of the contract and therefore will not be paid. The Town of North Andover will not be charged fuel surcharges or administrative fees as part of any contract entered into as a result of this IFB. Additionally the Town of North Andover will not be charged late fees unless payment is not made within sixty (60) days of the receipt of invoice: — p j o r7 c, -f p S,� - ?, p-5 The Town of North Andover is a tax exempt entity so no sales tax will be assessed to any purchases made under this proposed contract. 11. Term of Contact The Town of North Andover is seeking to award a three-year contract (October 1, 2012 through September 30, 2015). The successfid bidder will be required to execute the standard Town of North Andover contract and the appropriate supplement as attached. Town of North Andover IFB " . pap 6 of 21 Carbonated Soft Drinks, Water & sports Drinks — Youth Cmbor t tj 'N V C3 1� u DI qj v t) u WWI Lai IIRC iii WN 4' Ep rM � tl. A rr L- L YR, _ M 't CERTIFICATE OF VOTE At a duly authorized meeting the Board of Directors of the held on it was VOTED, THAT of (Y112Me) (Offina) be and hereby is authorized to execute contracts and bonds in the name and on behalf of said _ , and affix its corpora to seal hereto; and such execution of any contract or obligation in the name of on its behalf by such officer under seal of y shall be valid and binding I hereby certify that I am the clerk of the above named and that is the duly elected officer as above of said and that the above vote has not been amended or rescinded and remains in full force and effect as the date of this contract. ,,Da -le) (clerk) Town ofNorth Andover UM Page 21 of ^2Y Carbonated Soft Drinks, Wader & Sports D inb — Youth. Center COMMAXIONS MpITIMCATZ OV HON -COLLUSION The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word `person" shall mean natural person, business, partnership, corporation, committee, union, club or other organization, entity, or group of individuals. Sil latrare C �=- C.0 _ TWO elfirL /lel(.e7KQy ��ccf i2lium&yA d� &R-2�-kcli-w r1 �. Print Name tit Title �— 0 Company Name CZRI-Ip ICA t 9 OF TAX COIOLL4NC& Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I aut1mrized Signatory fo: -3 `. �rgve'- e s Nam oftndw&al � Nouse of cor&xtor do hereby certify under the pains and penalties of perjury that said contractor has complied with all laws of the Commonwealth of Massachusetts, and. the Town of North Andover, relating to taxes, permit or other fees, reporting of employees and contractors, and withholding and remitting child support. Signature Date Town of North Andover IFB Page 20 of 21 Carbonated Soft Ddcks, Water & Sports Drinks - Youth Center Zo 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 ("Pepsi") and [insert legal name of Customer], a [insert state of incorporation] corporation, with its principal place of business at [Insert principal address of Customer] (the "Customer") relating to (i) the purchase by the Customer from Pepsi of the Products and (ii) the sale by Pepsi of Products through full service vending machines. 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. Definitions As used in this Agreement, the following capitalized terms shall have the respective meanings assigned thereto below. "Beverage" or "Beverages" means all carbonated and non -carbonated, non-alcoholic drinks, including but not limited to, (i) colas and other flavored carbonated drinks; (ii) fruit juice, fruit juice containing and fruit flavored drinks; (iii) chilled coffee drinks; (iv) chilled tea products; (v) hypertonic, isotonic and hypotonic drinks (sports drinks and fluid replacements); (vi) energy drinks, (vii) bottled or canned water whether carbonated or still (spring, mineral or purified), and (viii) any future categories of nonalcoholic beverage products that may be distributed by Pepsi. "Cases" shall mean the number of cases of Packaged Products purchased by the Customer from Pepsi, initially delivered in quantities of 24, 15, and 12 bottle/can units, and thereafter in such other size, quantity and type of containers as determined by Pepsi, from time to time. "Equipment' means all types of equipment owned and/or operated by Pepsi and used to sell or dispense the Products, including vending machines ("Vending Machines"). "Locations" shall vending of beverage products in, around, or on each of the buildings, grounds or properties of locations currently or during the Term owned, managed or operated by the Customer. A list of the Customer's current Locations is attached hereto as Exhibit A. "Packaged Products" shall mean Beverages that are distributed in pre-packaged form (e.g., bottles and cans). A current list of Pepsi's Packaged Products is listed in attached Exhibit B which may be amended by Pepsi from time to time. "Products" shall mean Packaged Products manufactured, bottled, sold and/or distributed by Pepsi. "Year" shall mean each 12 -month period during the Term commencing on the first day of the Term or an anniversary thereof. Term The term of this Agreement shall commence on , 20 and expire upon , 20_ (the "Term"). When fully executed, this Agreement will constitute a binding obligation of both parties until expiration or termination. 3 .4 PEPSI BEVERAGES COMPANY 2. Scope (A) Exclusive Pouring Rights During the Term of this Agreement Pepsi shall have the exclusive right to make all Beverages (Products sold through vending machines) available for sale and distribution within the Customer's Locations. Accordingly, the Products shall be the only Beverages of their respective type sold, dispensed or served anywhere at the Locations, and Customer will cause the purchasing representative for each of the Locations to purchase all its respective requirements for such Products directly and exclusively from Pepsi. 3. Performance This Agreement, including all of Pepsi's support to the Customer as described below, is contingent upon the Customer complying with all of the following performance criteria: (A) Exclusivity. The Products shall be the exclusive Beverage 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 Locations by any method or through any medium whatsoever (including without limitation print, broadcast, direct mail, coupons, handbills, displays and signage), whether public or private. In no event shall there be served, dispensed or otherwise made available, or in any way advertised, displayed, represented or promoted, beverage products licensed by, or produced by bottlers licensed by, The Coca-Cola Company or any affiliate thereof, or any other supplier of competitive nonalcoholic Beverages. (B) Product Mix. The Customer represents that it shall purchase and shall cause its Locations to purchase Products exclusively from Pepsi and that it shall use reasonable efforts to maintain a mix of Packaged Products at each of the Locations throughout the Term. (C) Changes in Location(s). The Customer agrees that it shall promptly notify Pepsi, in writing, of each new Location which is opened or acquired during the Term, as well as of any Location which is closed or otherwise disposed of during the Term so that the parties may promptly update Exhibit A. 4. Consideration In consideration of the exclusive rights granted to Pepsi by Customer over the Term of this Agreement, and provided Customer is not in breach of this Agreement, Pepsi shall provide Customer with the following: (A) Initial Support Funds. Pepsi shall provide Customer with initial support funds in the amount of {$_�, payable to the Customer within sixty (60) days of the signing of this Agreement by both parties (the "Initial Support Funds"). The Initial Support Funds are earned by the Customer over the Term. In the event Pepsi terminates this Agreement due to the Customer's failure to cure a breach hereof, the unearned Initial Support Funds will be repaid to Pepsi pursuant to the terms of Section 7(B)(1) herein. (B) Annual Support Funds. Pepsi shall provide Customer with annual support funds in the amount of ($!�, payable to the Customer within sixty (60) days after the commencement of Year 2 and each anniversary thereafter until the end of the Term of this Agreement not to exceed U consecutive payments (the "Annual Support Funds"). The Annual Support Funds are earned throughout the Year in which they are paid. In the event Pepsi terminates this 4 ,�p PEPSI BEVERAGES COMPANY Agreement due to the Customer's failure to cure a breach hereof, the unearned Annual Support Funds will be repaid to Pepsi pursuant to the terms of Section 7(B)(1) herein. (C) Marketing Support Funds. Each Year throughout the Term, Pepsi shall calculate the total number of Cases of Packaged Products and Gallons of Postmix Products purchased by each of the applicable Locations from Pepsi pursuant to this Agreement, and shall provide the Customer with marketing support funds calculated based on applicable amounts set forth below (the "Marketing Support Funds"), The Marketing Support Funds, if applicable, shall be paid by Pepsi within sixty (60) days of the end of each applicable Year during the Term. In the event that any Location is closed during the Term of this Agreement, Pepsi agrees to provide Customer with all Marketing Support Funds accrued on behalf of that applicable Location as of the time of closing, provided that such Location was in full compliance with the terms and conditions of this Agreement. Marketing Support Funds Amount applicable Products $ /Gallon insert applicable Postmix Products $ I Case insert applicable 24- k Packaged Products $_/Case insert applicable 18- k,12-pk Products The parties agree that Pepsi shall not accrue or pay any Marketing Support Funds for sales to Locations that are in breach of the Performance Requirements listed in Section 3 above. Customer agrees that the Marketing Support Funds shall be used in part to help offset costs associated with mutually agreed upon marketing programs and promotions throughout the Term. (D) Free Equipment Loan and Service. As further outlined in Section 5 below, Pepsi shall provide at no cost to Customer or the Locations necessary dispensing/selling Equipment for Beverages at the Locations. Such Equipment shall be in sufficient quantities (in light of sales volume) as determined by Pepsi to satisfy the Location's reasonable needs. 5. Equipment (A) Pepsi will loan each Location, at no charge, appropriate Equipment for dispensing the Products during the Term. Customer agrees that the Equipment shall be exclusively used to display and merchandise the Products, and the Customer shall not use the Equipment to display, stock, advertise, sell or maintain any other products (including on the exterior of the Equipment). Pepsi will also provide, at no charge to the Customer, service to the Equipment. Title to such Equipment will remain vested in Pepsi or its affiliate and all such Equipment will be returned to Pepsi upon expiration or earlier termination of this Agreement. Each Year during the Term or at Pepsi's request, Customer shall provide Pepsi with a written Equipment verification list indicating the asset number, Equipment type and location of the Equipment loaned to the Customer pursuant to this Agreement. Failure to provide such verification list to Pepsi shall be deemed a material breach of this Agreement. (B) Pepsi will provide, at no charge to the 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 Equipment after business hours. Pepsi will promptly respond to each applicable Customer request, and will use reasonable efforts to remedy the related Equipment problem as soon as possible. 5 PEPSI BEVERAGES COMPANY Notwithstanding the foregoing, Pepsi reserves the absolute right to remove any glass front Vending Machines that sells less than eight (8) cases of Product per week or any other Vending Machines that sells less than two (2) cases of Product per week. (C) Customer agrees to provide reasonable assistance to Pepsi in apprehending and prosecuting Vandals. Pepsi shall not be assessed common area maintenance fees, taxes or other charges based on its occupation of the space allocated to its Equipment at the Locations. 6. Pricing Pepsi will provide Customer/Locations a complete supply of Products during the Term of this Agreement and shall deliver such Products in a timely manner (based on mutually agreed upon delivery schedules) and in good and sanitary condition. The Products shall be purchased by the Customer from Pepsi at prices established by Pepsi. The current pricing schedule for Products is set forth on attached Exhibit B. Thereafter, the prices may be changed from time to time at Pepsi's discretion, except that Pepsi shall provide thirty (30) days notice of any price increases during the Term. 7. General Terms (A) Termination. Either party may terminate this Agreement if the other commits a material breach of this Agreement; provided, however, that the terminating party has given the other party written notice of the breach and the other party has failed to remedy or cure the breach within thirty (30) days of such notice. If for any reason the Customer closes more than twenty-five percent (25%) of its Locations for a period of ten (10) business days or more, then such event shall be deemed a material breach of this Agreement, and Pepsi shall have the right to immediately terminate this Agreement upon five (5) days prior written notice. (B) Remedies. If Pepsi terminates this Agreement as a result of default by Customer or its Locations, then Customer and its Locations will surrender to Pepsi all Equipment provided by Pepsi and shall forfeit all funding not paid as of the date of termination. In addition, Pepsi shall have the right to immediately seek reimbursement from Customer for the following: (1) A payment reflecting reimbursement for all funding previously advanced by Pepsi but not earned by the Customer pursuant to the terms of this Agreement. With regard to the Initial Support Funds, the amount of such reimbursement shall be determined by multiplying the Initial Support Funds by a fraction, the numerator of which is the number of months remaining in the Term at the time such termination occurs and the denominator of which is the higher of [insert the total number of months in the Term] or the number of months expected to comprise the Term based on volume trends as of the time of termination and the Volume Threshold. With regard to the Annual Support Funds, the amount of such reimbursement shall be determined by multiplying Annual Support Funds by a fraction, the numerator of which is the number of months remaining in the Year in which the Agreement is terminated at the time such termination occurs and the denominator of which is 12; (2) A payment to Pepsi reflecting reimbursement for the cost of installation, service and refurbishing of Equipment provided during the Term and the cost of removal of all Equipment that has been installed in the Locations, if applicable; and (3) A payment for liquidated damages, for lost profits suffered by Pepsi as a result of such termination, equal to the product of $_ multiplied by the projected number of collective A PEPSI BEVERAGES COMPANY Gallons/Cases of Products that Customer and its Locations would have been expected to purchase during the remainder of the Term ("Expected Volume"); for the purposes of this calculation, 1 Case shall equal 1 Gallon and the Expected Volume amount shall be the higher of the amount of collective Cases/Gallons left to obtain the Volume Threshold or the amount of collective Cases/Gallons Customer would have been expected to purchase using Customer's current average weekly purchases during the Term as of the date of termination. (C) Expiration. Upon expiration of this Agreement, if Customer has not entered into a further agreement with Pepsi for the purchase of the Products, Customer shall surrender to Pepsi all Equipment installed in the Locations, whether leased, loaned or otherwise made available by Pepsi. (D) Right of Offset Pepsi reserves the right to withhold payments due. hereunder as an offset against amounts not paid by Customer for Products ordered from and delivered by Pepsi pursuant to this Agreement. (E) Non -Disclosure. Except as may otherwise be required by law or legal process, neither party shall disclose to unrelated third parties the terms and conditions of this Agreement without the consent of the other. (F) Indemnification. Pepsi will indemnify and hold the Customer harmless from any and all suits, actions, claims, demands, losses, costs, damages, liabilities, fines, expenses and penalties (including reasonable attorneys' fees) arising out of: (i) its breach of any term or condition of this Agreement; (ii) product liability suits resulting from the use or consumption of the Products; and/or (iii) the negligence or willful misconduct of Pepsi. The Customer will indemnify and hold Pepsi, its subsidiaries, affiliates or assigns harmless from and against any and all suits, actions, claims, demands, losses, costs, damages, liabilities, fines, expenses and penalties (including reasonable attorneys' fees) arising out of: (i) its breach of any term or condition of this Agreement; and/or (ii) the negligence or willful misconduct of the Customer. (G) Assignment. In the event that a third party acquires Customer or all or a group of the Locations, or if Customer is acquired or merges with a third party, Customer will, in connection with such transaction, cause the acquiring party/merged 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/merged entity within ten (10) days following the closing of the transaction, Pepsi may, at its option, terminate this Agreement effective immediately and Customer will pay to Pepsi all sums specked in paragraph 7(8) herein. The Agreement shall not be otherwise assignable without the express written consent of Pepsi. (H) Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to conflict of laws principles. (1) Price Discrepancy. Any price discrepancy claim must be submitted to Pepsi within 365 days of the date of the invoice in question. If the Customer makes a price discrepancy claim within 90 days of the invoice date, the Customer must submit a written request specifying the particular Beverage Product, amount in dispute and reason for the dispute. This request should be addressed to: Accounts Receivable Pepsi-Cola Customer Service Center P.O. Box 10 Winston-Salem, North Carolina 27102. 7 PEPSI BEVERAGES COMPANY If the 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, the Customer must submit to Pepsi a copy of the invoice in question, copies of any check remittances pursuant to the invoice in question and any additional supporting documentation. (J) Tax. The Customer acknowledges and agrees that neither Pepsi nor its affiliates shall be responsible for any taxes payable, fees or other tax liability incurred by the Customer in connection with the consideration or any other fees payable by Pepsi under this Agreement. Pepsi shall not be assessed common area maintenance fees, taxes or other charges based on its occupation of the space allocated to its Equipment at the Locations. (K) Force Majeure. Pepsi will not be responsible for any delay or lack of delivery resulting directly or indirectly from any foreign or domestic embargo, product detention, seizure, act of God, insurrection, war and/or continuance of war, the passage or enactment of any law ordinance, regulation, ruling, or order interfering directly or indirectly with or rendering more burdensome the purchase, production, delivery or payment hereunder, including the lack of the usual means of transportation due to fire, flood, explosion, Not, strike or other acts of nature or man that are beyond the control of Pepsi or that of the suppliers to Pepsi unless such contingency is specifically excluded in another part of this Agreement. Subject to the provisions below, this Agreement will be suspended as to both Beverage Product and delivery during any of the above force majeure contingencies. Any and all suspended deliveries will resume after such contingencies cease to exist, if possible, and this Agreement will resume in accordance with its terms, unless otherwise provided for herein. (L) Release, Discharge or Waiver. No release, discharge or waiver of any provision hereof shall be enforceable against or binding upon either party hereto unless in writing and executed by both parties hereto. Neither the failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof, nor the acceptance of monies due hereunder with knowledge of a breach of this Agreement, shall be deemed a waiver of any rights or remedies that either party hereto may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants or conditions. (M) Relationship of the Panties. The parties are independent contractors with respect to each other. Nothing contained in this Agreement will be deemed or construed as creating a joint venture partnership between the parties. (N) Effect of Headings. The headings and subheadings of the sections of this Agreement are inserted for convenience of reference only and shall not control or affect the meaning or construction of any of the agreements, terms, covenants and conditions of this Agreement in any manner. (4) Construction. This Agreement has been fully reviewed and negotiated by the parties hereto and their respective legal counsel. Accordingly, in interpreting this Agreement, no weight shall be placed upon which party hereto or its counsel drafted the provision being interpreted. Wherever this Agreement provides for one party hereto to provide authorization, agreement, approval or consent to another party hereto, or provides for mutual agreement of the parties hereto, such authorization, approval, agreement or consent shall, except as may otherwise be specified herein, be given in such party's reasonable judgment and reasonable discretion, and shall be in writing unless otherwise mutually agreed by the parties. If any term or provision of this Agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this Agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, 0 } PEPSI BEVERAGES COMPANY and the remainder of this Agreement shall be given effect as if the parties had not included the severed term herein. (P) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. (Q) Further Assurances. Each party hereto shall execute any and all further documents or instruments and take all necessary action that either party hereto may deem reasonably necessary to carry out the proper purposes of this Agreement. (R) Notices. Unless otherwise specified herein, all notices, requests, demands, consents, and other communications hereunder shall be transmitted in writing and shall be deemed to have been duly given when hand delivered, upon delivery when sent by express mail, courier, overnight mail or other recognized overnight or next day delivery service, or three (3) days following the date mailed when sent by registered or certified United States mail, postage prepaid, return receipt requested, or by telecopier, with a confirmation copy sent by recognized overnight courier, next day delivery, addressed as follows: If to Pepsi: Pepsi Beverages Company Attn: Director, FoodService With a copy to (which shall not constitute notice): Pepsi Beverages Company One Pepsi Way Somers, NY 10589 Attn: Legal Department If to Customer: (S) Right of First Negotiation/Refusal. As of the commencement of this Agreement until ninety (90) days prior to the expiration of the Term, the Customer hereby agrees to grant Pepsi exclusive negotiation rights with respect to extending the current Agreement or entering into a new agreement for Beverage pouring rights at the Locations upon expiration of the current Term. Thereafter, if the parties have not entered into a new agreement, the Customer shall be free to enter into discussions/negotiations with third parties except that Customer shall grant Pepsi the absolute right of first refusal to match any bona fide offers made by a third party with respect to Beverage pouring rights/sales at the Locations. The Customer shall provide Pepsi with details of any such bona fide offers, and Pepsi shall have a fifteen (15) day window to decide whether it will match such offer and exercise its right of first refusal. The parties agree that beverage type/category and not brand names shall be considered for the purposes of determining a match. in the event that Pepsi declines to match such offer, or fails to respond within the fifteen (15) day period, then Customer shall be free to enter into an agreement with any third party based on terms and conditions equal or favorable to those presented to Pepsi in connection with the notice specified herein. PEPSI BEVERAGES COMPANY (T) 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 the Customer (i) sells Products directly or indirectly for resale outside of the Pepsi's exclusive territory where the Locations operates, (ii) purchases Products outside Pepsi's exclusive territory where the Locations operates and resells such Products within Pepsi's exclusive territory or (iii) does not comply with Pepsi's payment terms or makes an unauthorized deduction from amounts due. (U) Entire Agreement. This Agreement contains 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. (V) Customer Representations. Customer represents and warrants to Pepsi that the execution, delivery and performance of this Agreement by Customer will not violate any agreements with, or rights of, third parties. The Customer and undersigned represent that the undersigned is duly authorized and empowered to bind the Customer to the terms and conditions of this Agreement for the duration of the Term. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date set forth below. Bottling Group, LLC Customer By: 0 Print Name: Print Name: Title: Title: Date: Date: 10 0& PEPSI BEVERAGES COMPANY Exhibit A Customer Locations PEPSI BEVERAGES COMPANY Exhibit B Products and Prices Customer acknowledges and agrees (and shall require that any third parties or Food Service Providers purchasing Products through this Agreement agree) that Pepsi shall be entitled to pass through any incremental fees, deposits, taxes or other governmentally imposed charges (whether local, state, federal or judicially imposed) and that the pass-through of any such governmentally imposed fees, deposits, taxes or charges on the Products shall not be deemed as a price increase subject to any pricing cap or notification restrictions that may be specified in this Agreement. 12 TOWN OF NORTH ANDOVER INVITATION FOR BIDS CARBONATED SOFT DRINKS, WATER & SPORTS DRINKS YOUTH CENTER Contact Address Telephone Number: Fax Number: Email August 20, 2012 Ray Santilli Assistant Town Manager 120 Main Street North Andover, MA 01845 978-688-9516 978-688-9556 rsantilli@townofnorthandover.com Table of Contents 1. Introduction........................................................... 3 2. Submission Deadline and Instructions ............................. 3 3. Questions, Addendum or Proposal Modifications ............... 4 4. Minimum Requirements ............................................. 5 5. Estimated Quantities ................................................. 5 6. Scope of Services ..................................................... 5 7. Evaluation of Bids .................................................... 6 8. Term of Contract...................................................... 6 Appendix A — Bid Submission ......................................... 7 Standard Town of North Andover Contract With Supplement«G".............................................. 9 Certifications............................................................ 20 Town of North Andover IFB Page 2 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 1. Introduction The Town of North Andover (`Town') is soliciting bids from qualified companies to furnish and deliver bottles of carbonated soda, water and sports drinks for the vending machines at the North Andover Youth Center for the period of October 1, 2012 through September 30, 2015. Qualified companies are requested to submit bids to the Assistant Town Manager at North Andover Town Hall, 120 Main Street, North Andover, MA, in accordance with the instructions contained within this Invitation for Bids. Notice of this IFB is published in the Goods and Services Bulletin, which is a weekly publication of the Office of the Secretary of State, the Eagle -Tribune (a newspaper of general circulation) and posted on the Town website (www.townofnorthandover.com) under "Bids, Quotes and Proposals". The Town will accept proposals delivered in person or by mail. All proposals must be received by 2:00 p.m. on Tuesday, September 11, 2012 to be considered. Proposals submitted by fax or by electronic mail will not be considered. All proposals must be submitted to: Mr. Ray Santilli, Assistant Town Manager North Andover Town Hall 120 Main Street North Andover, MA 01845 The Town of North Andover may cancel this IFB or reject in whole or in part any and all proposals, if they determine that cancellation or rejection serves the best interest of the Town of North Andover. 2. Submission Deadline and Instructions Qualified companies are requested to submit the pricing proposal sheet (Appendix A) in a sealed envelope marked "Carbonated Soft Drinks, Water & Sports Drinks — Youth Center" with the applicant's name and address on the front. Applicants should provide one (1) signed original proposal. Fax or electronic submissions will not be accepted. Applicants must also execute and include in the sealed submission the Certificate of Vote, Certificate of Non -Collusion, and the Certificate of Tax Compliance. The Town of North Andover, through the Town Manager, is the awarding authority and reserves the right to reject any and all proposals or parts of proposals; to waive any defects, information, and minor irregularities; to accept exceptions to these specifications; and to award contracts or to cancel this Invitation for Bids if it is in the Town of North Andover's best interest to do so. Proposals must be signed as follows: a) if the bidder is an individual, by her/him personally; b) if the bidder is a partnership, by the name of the partnership, followed by the signature of each general partner; and c) if the bidder is a corporation, by the authorized officer, whose signature must be attested to by the Clerk/Secretary of the corporation and the corporate seal affixed. Town of North Andover IFB Page 3 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center All sealed proposals must be received and registered by the Assistant Town Manager's office by Tuesday, September 11, 2012 at 2:00 p.m. All outer envelopes must be labeled "Carbonated Soft Drinks, Water & Sports Drinks — Youth Center" and mailed or hand delivered to the following address: Mr. Ray Santilli, Assistant Town Manager North Andover Town Hall 120 Main Street North Andover, MA 01845 No proposals will be accepted after the time and date noted. Late delivery of materials due to any type of delivery system shall be cause for rejection. If on the date and time of the submittal deadline the North Andover Town Hall is closed due to an uncontrolled event such as fire, snow, ice, wind or building evacuation, the submittal deadline will be postponed until 2:00 p.m. on the next normal business day. 3. Questions, Addendum or Proposal Modification Questions concerning this IFB must be submitted in writing to: Mr. Ray Santilli, Assistant Town Manager, 120 Main Street North Andover, MA 01845, or they may be emailed to Mr. Santilli at rsantilli@townofnorthandover.com. All questions/inquiries must be received by 4:30 p.m. on Tuesday, September 4, 2012 to be considered. Questions/inquiries may be delivered, mailed, emailed or faxed. Written responses will be posted on the Town's website (www.townofnorthandover.com) in "Available Bids, Quotes and Proposals" by Wednesday, September 5, 2012 at 2:00 p.m. If any changes are made to this IFB, an addendum will be posted on the Town's website in "Available Bids, Quotes and Proposals". It is the sole responsibility of the bidder to ascertain the existence of any addenda and/or modifications issued by the Town. As this IFB has been published on the Town's website (www.townof iorthandover.com) all bidders are responsible for checking the website for any addenda and /or modifications that are subsequently made to this IFB. The Town accepts no liability for and will provide no accommodations to bidders who fail to check for amendments and/or modifications to this IFB and subsequently submit inadequate or incorrect responses. Bidders may not alter (manually or electronically) the IFB language or any IFB component files. Modifications to the body of the IFB, Scope of Work, terms and conditions, or which change the intent of this IFB are prohibited and may disqualify a response. All proposals submitted in response to this IFB shall remain firm for sixty (60) days following the submittal deadline. It is anticipated that the contract will be awarded within thirty (30) days after the submittal deadline. Bidders are not to communicate directly with any employee of the Town of North Andover, except as specified in this IFB, and no other individual employee or representative is authorized to provide any information or respond to any question or inquiry concerning this IFB. Town of North Andover IFB Page 4 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center Bidders may contact the Contact Person for this IFB in the event this IFB is incomplete or the bidder is having trouble obtaining any part of the IFB electronically through the Town website (www.townofnorthandover.com), including, and without limitation the form and attachments. Bidder with disabilities or hardships that seek reasonable accommodations, which may include the receipt of IFB information and/or addenda and/or modifications in an alternative format, must communicate such requests in writing to the contact person, and reasonable accommodation will be made by agreement with the contact person on behalf of the Town of North Andover. 4. Minimum Requirements Each bidder must demonstrate that it meets the following minimum requirements: A. Contractor must demonstrate a minimum of five (5) years experience providing the services required in the Scope of Services. B. Contractor shall submit a complete list of all similar contracts performed in the past two (2) years with contact names and telephone numbers. C. The contractor shall furnish all labor, equipment, and vehicles as required for work in accordance with the scope of services. D. Unit prices quoted shall include delivery. E. Unit prices shall remain firm for the specific period of the contract. F. Submission of required statements and forms. 5. Estimated Quantities The quantities listed in Appendix A are simply estimates for bid purposes only. The Town will not be obligated to purchase in any specific quantity during the period of the contract. 6. Scope of Services Company to furnish and deliver bottles of carbonated soft drinks, water and sports drinks for the vending machines at the North Andover Youth Center located at 33 Johnson Street. o Company must provide one (1) indoor machine and two (2) outdoor machines o Beverages must be 20 oz bottles o Weekly delivery into building of 20-30 cases of product o Deliveries must be made no later than 2:00 p.m. on the scheduled delivery day Town of North Andover IFB Page 5 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center o Company must make Youth Center aware of any promotional event and/or services o Company must be willing to donate 20 cases of product per year for Youth Center fundraisers 7. Evaluation of Bids Bids will first be examined for their responsiveness to what is requested in this IFB. Responsibility of the bidder will then be ascertained. Finally, the aggregate price for the products offered and installed by each responsive and responsible bidder will be calculated for the period of the proposed contract. The Town is required to award the contract to the lowest responsive responsible bidder. ■ Responsiveness Bidders must completely fill out and submit the bid form and all other required forms. All supplies and services that are the subject of the bid must meet the minimum standards and Specifications set forth in the scope of services including the standards by which the procurement officer will determine acceptability as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose. ■ Responsibility Bidders must demonstrate that they meet the following measures of responsibility. The Town will not award a contract to any bidder who cannot furnish satisfactory evidence of his ability and experience in this type of work and that he has sufficient plant and capital to enable him to prosecute and complete the work as outlined in the Scope of Services. The Town may make such investigations as it deems necessary to determine the above and a bidder shall furnish any information requested in this regard. All costs not listed on the bid price sheet will not be considered part of the contract and therefore will not be paid. The Town of North Andover will not be charged fuel surcharges or administrative fees as part of any contract entered into as a result of this IFB. Additionally the Town of North Andover will not be charged late fees unless payment is not made within sixty (60) days of the receipt of invoice. The Town of North Andover is a tax exempt entity so no sales tax will be assessed to any purchases made under this proposed contract. 11. Term of Contract The Town of North Andover is seeking to award a three-year contract (October 1, 2012 through September 30, 2015). The successful bidder will be required to execute the standard Town of North Andover contract and the appropriate supplement as attached. Town of North Andover IFB Page 6 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center APPENDIX A - PRICE PROPOSAL The Contract will be awarded to the responsible, responsive bidder offering the lowest aggregate price for the products offered and delivered for the period of the proposed contract. All prices are to remain firm for the duration of the Contract. *NOTE: All unit prices listed will include inside delivery. Year 1— October 1. 2012 throup-h September 30. 2013 Description Quantit Unit Price Total Price 20 oz bottle carbonated soft drink 350 cases $ /case $ 20 oz bottle water 100 cases $ /case $ 20 oz bottle sports drink 200 cases $ /case $ TOTAL $ Year 2 — October 1. 2013 through September 30. 2014 Description Quantit Unit Price Total Price 20 oz bottle carbonated soft drink 350 cases $ /case $ 20 oz bottle water 100 cases $ /case $ 20 oz bottle sports drink 200 cases $ /case $ TOTAL $ Year 3 — October 1. 2014 through September 30. 2015 Description Quantit Unit Price Total Price 20 oz bottle carbonated soft drink 350 cases $ /case $ 20 oz bottle water 100 cases $ /case $ 20 oz bottle sports drink 200 cases $ /case $ TOTAL $ Town of North Andover IFB Page 7 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center Addenda are acknowledged: Business Name Business Address Business Phone Signature Fax Name of Person Authorized to sign Price Proposal Title of Person Authorized to sign Price Proposal Signature of Above Person Town of North Andover IFB Page 8 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center Town of North Andover CONTRACT CONTRACT# DATE: This Contract is entered into on, or as of, this date by and between the Town of North Andover (the "Town"), and Contractor: Address: Telephone Number: _ Fax Number: 1. This is a Contract for the procurement of the following: 2. The Contract price to be paid to the Contractor by the Town of North Andover is: 3. Payment will be made as follows: 4. Definitions: 4.1 Acceptance: All Contracts require proper acceptance of the described goods or services by the Town of North Andover. Proper acceptance shall be understood to include inspection of goods and certification of acceptable performance for services by authorized representatives of the Town to insure that the goods or services are complete and are as specified in the Contract. Town of North Andover IFB Page 9 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 4.2 Contract Documents: All documents relative to the Contract including (where used) Instructions to Bidders, Proposal Form, General Conditions, Supplementary General Conditions, General Specifications, Other Specifications included in Project Manual, Drawings, and all Addenda issued during the bidding period. The Contract documents are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the document is to include all labor and materials, equipment and transportation necessary for the proper performance of the Contract. 4.3 The Contractor: The "other party" to any Contract with the Town. This term shall (as the sense and particular Contract so require) include Vendor, Contractor, Engineer, or other label used to identify the other party in the particular Contract. Use of the term "Contractor" shall be understood to refer to any other such label used. 4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the services are performed, or the goods delivered, in accordance with Contract documents, as modified by approved Amendments and Change Orders. 4.5 Goods: Goods, Supplies or Materials. 4.6 SubContractor: Those having a direct Contract with the Contractor. The term includes one who furnished material worked to a special design according to the Drawings or Specifications of this work, but does not include one who merely furnishes material not so worked. 4.7 Work: The services or materials contracted for, or both. 5. Term of Contract and Time for Performance: This Contract shall be fully performed by the Contractor in accordance with the provisions of the Contract Documents on or before , unless extended pursuant to a provision for extension contained in the Contract documents at the sole discretion of the Town, and not subject to assent by the Contractor, and subject to the availability and appropriation of funds as certified by the Town Accountant. The time limits stated in the Contract documents are of the essence of the Contract. 6. Subject to Appropriation: Notwithstanding anything in the Contract documents to the contrary, any and all payments which the Town is required to make under this Contract shall be subject to appropriation or other availability of funds as certified by the Town Accountant. In the absence of appropriation, this Contract shall be immediately terminated without liability for damages, penalties or other charges. Town of North Andover IFB Page 10 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 7. Permits and Approvals: Permits, Licenses, Approvals and all other legal or administrative prerequisites to its performance of the Contract shall be secured and paid for by the Contractor. 8. Termination and Default: 8.1 Without Cause. The Town may terminate this Contract on seven (7) calendar days notice when in the best interests of the Town by providing notice to the Contractor, which shall be in writing and shall be deemed delivered and received when given in person to the Contractor, or when received by fax, express mail, certified mail return receipt requested, regular mail postage prepaid or delivered by any other appropriate method evidencing actual receipt by the Contractor. Upon termination without cause, Contractor will be paid for services rendered to the date of termination. 8.2 For Cause. If the Contractor is determined by the Town to be in default of any term or condition of this Contract, the Town may terminate this Contract on seven (7) days notice by providing notice to the Contractor, which shall be in writing and shall be deemed delivered and received when given in person to the Contractor, or when received by fax, express mail, certified mail return receipt requested, regular mail postage prepaid or delivered by any other appropriate method evidencing actual receipt by the Contractor. 8.3 Default. The following shall constitute events of a default under the Contract: 1) any material misrepresentation made by the Contractor to the Town; 2) any failure to perform any of its obligations under this Contract including, but not limited to the following: (i) failure to commence performance of this Contract at the time specified in this Contract due to a reason or circumstance within the Contractor's reasonable control, (ii) failure to perform this Contract with sufficient personnel and equipment or with sufficient material to ensure the completion of this Contract within the specified time due to a reason or circumstance within the Contractor's reasonable control, (iii) failure to perform this Contract in a manner reasonably satisfactory to the Town, (iv) failure to promptly re -perform within a reasonable time the services that were rejected by the Town as unsatisfactory, or erroneous, (v) discontinuance of the services for reasons not beyond the Contractor's reasonable control, (vi) failure to comply with a material term of this Contract, including, but not limited to, the provision of insurance and non-discrimination, (vii) any other acts specifically and expressly stated in this Contract as constituting a basis for termination of this Contact, and (viii) failure to comply with any and all requirements of state law and/or regulations, and Town bylaw and/or regulations. 9. The Contractor's Breach and the Town's Remedies: Failure of the Contractor to comply with any of the terms or conditions of this Contract shall be deemed a material breach of this Contract, and the Town of North Andover shall Town of North Andover IFB Page 11 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center have all the rights and remedies provided in the Contract documents, the right to cancel, terminate, or suspend the Contract in whole or in part, the right to maintain any and all actions at law or in equity or other proceedings with respect to a breach of this Contract, including damages and specific performance, and the right to select among the remedies available to it by all of the above. From any sums due to the Contractor for services, the Town may keep the whole or any part of the amount for expenses, losses and damages incurred by the Town as a consequence of procuring services as a result of any failure, omission or mistake of the Contractor in providing services as provided in this Contract. 10. Statutory Compliance: 10.1 This Contract will be construed and governed by the provisions of applicable federal, state and local laws and regulations; and wherever any provision of the Contract or Contract documents shall conflict with any provision or requirement of federal, state or local law or regulation, then the provisions of law and regulation shall control. Where applicable to the Contract, the provisions of the General Laws are incorporated by reference into this Contract, including, but not limited to, the following: General Laws Chapter 30B — Procurement of Goods and Services. General Laws Chapter 30, Sec. 39, et seq: - Public Works Contracts. General Laws Chapter 149, Section 44A, et seq: Public Buildings Contracts. 10.2 Wherever applicable law mandates the inclusion of any term and provision into a municipal contract, this Section shall be understood to import such term or provision into this Contract. To whatever extent any provision of this Contract shall be inconsistent with any law or regulation limiting the power or liability of cities and towns, such law or regulation shall control. 10.3 The Contractor shall give all notices and comply with all laws and regulations bearing on the performance of the Contract. If the Contractor performs the Contract in violation of any applicable law or regulation, the Contractor shall bear all costs arising therefrom. 10.4 The Contractor shall keep itself fully informed of all existing and future State and National Laws and Municipal By-laws and Regulations and of all orders and decrees of any bodies or tribunals having jurisdiction in any manner affecting those engaged or employed in the work, of the materials used in the work or in any way affecting the conduct of the work. If any discrepancy or inconsistency is discovered in the Drawings, Specifications or Contract for this work in violation of any such law, by-law, regulation, order or decree, it shall forthwith report the same in writing to the Town. It shall, at all times, itself observe and comply with all such existing and future laws, by-laws, regulations, orders and decrees; and shall Town of North Andover IFB Page 12 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center protect and indemnify the Town of North Andover, and its duly appointed agents against any claim or liability arising from or based on any violation whether by him or its agents, employees or subcontractors of any such law, by-law, regulation or decree. 11. Conflict of Interest: Both the Town and the Contractor acknowledge the provisions of the State Conflict of Interest Law (General Laws Chapter 268A), and this Contract expressly prohibits any activity which shall constitute a violation of that law. The Contractor shall be deemed to have investigated the application of M.G.L. c. 268A to the performance of this Contract; and by executing the Contract documents the Contractor certifies to the Town that neither it or its agents, employees, or subcontractors are thereby in violation of General Laws Chapter 268A. 12. Certification of Tax Compliance This Contract must include a certification of tax compliance by the Contractor, as required by General Laws Chapter 62C, Section 49A (Requirement of Tax Compliance by All Contractors Providing Goods, Services, or Real Estate Space to the Commonwealth or Subdivision). 13. Discrimination The Contractor will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws Chapter 151 B (Law Against Discrimination) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. 14. Assign ent: Assignment of this Contract is prohibited, unless and only to the extent that assignment is provided for expressly in the Contract documents. 15. Condition of Enforceability gainst the Town: This Contract is only binding upon, and enforceable against, the Town if (1) the Contract is signed by the Town Manager or its designee; and (2) endorsed with approval by the Town Accountant as to appropriation or availability of funds; and (3) endorsed with approval by the Town Counsel as to form. 16. Corporate Contractor: If the Contractor is a corporation, it shall endorse upon this Contract (or attach hereto) its Clerk's Certificate certifying the corporate capacity and authority of the party signing this Contract for the corporation. Such certificate shall be accompanied by a letter or other Town of North Andover IFB Page 13 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center instrument stating that such authority continues in full force and effect as of the date the Contract is executed by the Contractor. This Contract shall not be enforceable against the Town of North Andover unless and until the Contractor complies with this section. The Contractor, if a foreign corporation, shall comply with the provisions of the General Laws, Chapter 181, Sections 3 and 5, and any Acts and Amendments thereof, and in addition thereto, relating to the appointment of the Commissioner of Corporations as its attorney, shall file with the Commissioner of Corporations a Power of Attorney and duly authenticated copies of its Charter or Certificate of Incorporation; and said Contractor shall comply with all the laws of the Commonwealth. 17. Liability of Public Officials: To the full extent permitted by law, no official, employee, agent or representative of the Town of North Andover shall be individually or personally liable on any obligation of the Town under this Contract. 18. Indemnification: The Contractor shall indemnify, defend and save harmless the Town, the Town's officers, agents and employees, from and against any and all damages, liabilities, actions, suits, proceedings, claims, demands, losses, costs, expenses, recoveries and judgments of every nature and description (including reasonable attorneys' fees) that may arise in whole or in part out of or in connection with the work being performed or to be performed, or out of any act or omission by the Contractor, its employees, agents, subcontractors, material men, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by any party indemnified hereunder. The Contractor further agrees to reimburse the Town for damage to its property caused by the Contractor, its employees, agents, subcontractors or material men, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including damages caused by his, its or their use of faulty, defective, or unsuitable material or equipment, unless the damage is caused by the Town's gross negligence or willful misconduct. The existence of insurance shall in no way limit the scope of the Contractor's indemnification under this contract. 19. Workers Compensation Insurance: The Contractor shall provide by insurance for the payment of compensation and the furnishing of other benefits under Chapter 152 of the General Laws of Massachusetts (The Worker's Compensation Act) to all employees of the Contractor who are subject to the provisions of Chapter 152 of the General Laws of Massachusetts. Failure to provide and continue in force such insurance during the period of this Contract shall be deemed a material breach of this Contract, shall operate as an immediate termination thereof, and Contractor shall indemnify the Town for all losses, claims, and actions resulting from the failure to provide the insurance required by this Article. Town of North Andover IFB Page 14 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center The Contractor shall furnish to the Town evidence of such insurance prior to the execution of this Contract before the same shall be binding on the parties thereto, except if specifically waived by the Town. 20. Documents, Materials, Etc. Any materials, reports, information, data, etc. given to or prepared or assembled by the Contractor under this Contract are to be kept confidential and shall not be made available to any individual or organization by the Contractor (except agents, servants, or employees of the Contractor) without the prior written approval of the Town, except as otherwise required by law. The Contractor shall comply with the provisions Chapter 66A of the General Laws of Massachusetts as it relates to public documents, and all other state and federal laws and regulations relating to confidentiality, security, privacy and use of confidential data. Any materials produced in whole or in part under this Contract shall not be subject to copyright, except by the Town, in the United States or any other country. The Town shall have unrestricted authority to, without payment of any royalty, commission, or additional fee of any type or nature, publicly disclose, reproduce, distribute and otherwise use, and authorize others to use, in whole or in part, any reports, data or other materials prepared under this Contract. All data, reports, programs, software, equipment, furnishings, and any other documentation or product paid for by the Town shall vest in the Town at the termination of this Contract. The Contractor shall at all times, during or after termination of this Contract, obtain the prior written approval of the Town before making any statement bearing on the work performed or data collected under this Contract to the press or issues any material for publication through any medium. 21. Audit, Inspection and Recordkeeping At any time during normal business hours, and as often as the Town may deem it reasonably necessary, there shall be available in the office of the Contractor for the purpose of audit, examination, and/or to make excerpts or transcript all records, contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 22. Payment The Town agrees to make all reasonable efforts to pay to the Contractor the sum set forth in the Contractor's bid or proposal within thirty (30) days of receipt of an invoice detailing the work completed and acceptance from the Town of the work completed. Town of North Andover IFB Page 15 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 23. Waiver and Amendment Amendments, or waivers of any additional term, condition, covenant, duty or obligation contained in this Contract may be made only by written amendment executed by all signatories to the original Agreement, prior to the effective date of the amendment. To the extent allowed by law, any conditions, duties, and obligations contained in this Contract may be waived only by written Agreement by both parties. Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver, nor in any manner limit the legal or equitable remedies available to that party. No waiver by either party of any default or breach shall constitute a waiver of any subsequent default or breach of a similar or different matter. 24. Forum and Choice of Law This Contract and any performance herein shall be governed by and be construed in accordance with the laws of the Commonwealth. Any and all proceedings or actions relating to subject matter herein shall be brought and maintained in the courts of the Commonwealth or the federal district court sitting in the Commonwealth, which shall have exclusive jurisdiction thereof. This paragraph shall not be construed to limit any other legal rights of the parties. 25. Notices Any notice permitted or required under the provisions of this Contract to be given or served by either of the parties hereto upon the other party hereto shall be in writing and signed in the name or on the behalf of the party giving or serving the same. Notice shall be deemed to have been received at the time of actual service or three (3) business days after the date of a certified or registered mailing properly addressed. Notice to the Contractor shall be deemed sufficient if sent to the address set forth in the Contract and to the Town of North Andover by being sent to the Town Manager, Town Hall, 120 Main Street, North Andover, Massachusetts 01845. 26. Binding on Successors: This Contract shall be binding upon the Contractor, its assigns, transferees, and/or successors in interest (and where not corporate, the heirs and estate of the Contractor). 27. Complete Contract: This instrument, together with its endorsed supplements, and the other components of the contract documents, constitutes the entire contract between the parties, with no agreements other than those incorporated herein. Town of North Andover IFB Page 16 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center 28. Supplemental Conditions: The foregoing provisions apply to all contracts to which the Town of North Andover shall be a party. One of the following "Supplements" must be "checked" as applicable to this Contract, shall be attached hereto, and shall in any event apply as the nature of the Contract requires. The Supplement contains additional terms governing the Contract: [ X ] GOODS SUPPLEMENT "G" - Applicable to Contracts for the procurement of Goods (governed by the provisions of General Laws Chapter 3013) [ ] SERVICES SUPPLEMENT "S" - Applicable to Contracts for the procurement of Services (governed by the provisions of General Laws Chapter 30B) [ ] CONSTRUCTION SUPPLEMENT "C" - Applicable to Contracts for Construction Town of North Andover IFB Page 17 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center IN WITNESS WHEREOF the parties have hereto and to two other identical instruments set forth their hands the day and year first above written. THE TOWN Division/Department Head Contract Manager Town Manager Date APPROVED AS TO FORM: Town Counsel Date THE CONTRACTOR Company Name Signature Print Name & Title CERTIFICATION AS TO AVAILABILITY OF FUNDS: Town Accountant Date Date Town of North Andover IFB Page 18 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center SUPPLEMENT "G" 1. This form supplements the general provisions of the Contract between the Town of North Andover and , which Contract is a contract for the procurement of goods. 2. "Goods" shall mean Goods, Supplies, or Materials, as described in the Contract. 3. Change Orders: Change orders may not increase the contract price by more than twenty-five percent (25%), in compliance with General Laws Chapter 3013, §13. 4. This Contract for purchase includes the following delivery, installation or setup requirements: Dated: a. Weekly delivery, inside building, of 20-30 cases of product b. Deliveries must be made no later than 2:00 p.m. on the scheduled delivery day TOWN OF NORTH ANDOVER an Town Manager THE CONTRACTOR Town of North Andover IFB Page 19 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center CERTIFICATIONS CERTIFICATE OF NON -COLLUSION The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean natural person, business, partnership, corporation, committee, union, club or other organization, entity, or group of individuals. Signature, Print Name & Title Date Company Name CERTIFICATE OF TAX COMPLIANCE Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I , authorized signatory for Name of individual Name of contractor do hereby certify under the pains and penalties of perjury that said contractor has complied with all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to taxes, permit or other fees, reporting of employees and contractors, and withholding and remitting child support. Signature Date Town of North Andover IFB Page 20 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center CERTIFICATE OF VOTE At a duly authorized meeting the Board of Directors of the held on it was VOTED, THAT (Name) (Officer) of be and hereby is authorized to execute contracts and bonds in the name and on behalf of said , and affix its corporate seal hereto; and such execution of any contract or obligation in the name of on its behalf by such officer under seal of , shall be valid and binding upon I hereby certify that I am the clerk of the above named and that is the duly elected officer as above of said , and that the above vote has not been amended or rescinded and remains in full force and effect as the date of this contract. (Date) (Clerk) Town of North Andover IFB Page 21 of 21 Carbonated Soft Drinks, Water & Sports Drinks — Youth Center Santilli, Ray From: Rick Gorman [rgorman@nayouth.com] Sent: Tuesday, August 14, 2012 8:25 AM To: Santilli, Ray Subject: Re: Beverages 350 cases soda, 200 cases sports drink, 100 cases water Rick Gorman Executive Director North Andover Youth and Recreation Services 33 Johnson Street North Andover, MA 01845 978.682.9000 978.688.9544 www.navouth.com From: Santilli, Ray Sent: Tuesday, August 14, 2012 8:17 AM To: Gorman, Rick Subject: Beverages Hey Rick, Can you give me an estimate of how many cases of each item per year: 20 oz bottle carbonated soft drink 20 oz bottle water 20 oz bottle sports drinks These are estimates only and need to be listed in the Invitation for Bids. Thanks Ray Santilli Assistant Town Manager Town of North Andover 120 Main Street North Andover, MA 01845 Phone 978.688.9516 Fax 978.688.9556 Email rsantiIli@townofnorthandover.com Web www.townofnorthandover.com 1 Santilli, Ray From: REGS@sec. state. ma. us Sent: Monday, August 13, 2012 3:32 PM To: Santilli, Ray Subject: Publish Date Assigned to Goods and Services A publish date of 8/20/12 has been assigned to your Goods and Services submission with description of: Weekly delivery of 20-30 cases of carbonated soda, water and sports drinks for vending machines at North Andover Youth Center for three-year period of 10/1/12 - 9/30/15. Please note the Massachusetts Secretary of State's office has determined that most emails to and from municipal offices and officials are public records. For more information please refer to: http://www.sec.state.ma.us/pre/"`preidx.htm. Please consider the environment before printing this email. SPR Goods and Services Submit Confirmation State Publicationsandon William Francis GalVjn, Secretary of the Commonwealth Page 1 of 2 The following Goods and Services submission was successfully received. Planned date of publish is 8/20/2012 Awarding Agency Agency Name and Address: Town of North Andover 120 Main Street North Andover, MA 01845 Bid Number: Contact Information Name: Rap Santill.. Title: lAssistant Town Manager Phone: —� 978-688-9516 IF Fax 978-688-9556 Email Address: rsantilli(a)townofnorthandover.com Notify email address listed when final publish date assigned. Address: (if different from above) Description Weekly delivery of 20-30 cases of carbonated soda, water and sports drinks for vending machines at North Andover Youth Center for three- year period of October 1, 2012 through September 30, 2015 Contract Information Estimated F IF Duration Bid Release Date 08/20/2012 Release ' Time 11:00 a.m. Bid Deadline Date 09/11/2012 I Deadline Time 2:00 p.m. Additional Information The complete Invitation for Bids document will be available on Monday, August 20, 2012 at 11:00 a.m. at www.townofnorthandover.com by clicking on 'Bids, Quotes and Proposals' This page can be printed for your records. 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