Note To Proposers: Please fill in all areas highlighted in yellow when your proposal is submitted



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MISCELLANEOUS PROVISIONS

  1. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner whatsoever unless agreed to in writing and signed by all the Parties.


20.2 Assignment/Subcontractors/Successors. The Parties shall not assign, sell, transfer, or subcontract any rights or delegate any responsibilities under this Agreement, in whole or in part, without the prior written approval of the non-assigning Parties.

20.3 Compliance with Applicable Law. The Parties shall comply with all federal, state, county, and local laws, ordinances, rules, and regulations applicable to the Beverages and Snacks and other services to be provided pursuant to this Agreement. The Parties specifically agree to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. The Parties agree to adhere to and comply with all applicable environmental rules and regulations. The Parties also agree to comply with the Americans with Disabilities Act, 42 U.S.C. § 12100, et seq., and all regulations and administrative rules established pursuant to those laws. Failure or neglect on the part of the Parties to comply with any or all such laws, ordinances, rules, and regulations shall not relieve the Parties of their obligations under this Agreement.

20.4 Compliance with Rules of Sports Organizations. The Vendor shall take no action or enter into any contract or agreement related to this Agreement that would violate any rules or regulations of the NCAA, the SEC, or any other applicable governing sports organization.

20.5 Force Majeure. Neither Party shall be held responsible for delay or default caused by fire, riot, act of nature, terrorist acts, or other acts of political sabotage or war where such cause was beyond the reasonable control of the Parties. Each of the Parties shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue performance of its obligations under this Agreement.

20.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Alabama, without resort to any jurisdiction’s conflict-of-laws rules or doctrines. Any claim, action, or suit between the University and the Vendor that arises out of or relates to this Agreement shall be brought and conducted solely and exclusively within the appropriate court for Lee County, Alabama; provided, however, that if any such claim, action, or suit may be brought only in federal forum, it shall be brought and conducted solely and exclusively within the United States District Court for the Middle District of Alabama. The Vendor hereby consents to the personal jurisdiction of said courts.

20.7 Government Employment Status. The Vendor certifies that it is not currently employed by the federal government or Auburn University.

20.8 Independent Contractor Status. The University reserves the right to (a) determine and modify the delivery schedule for the Beverages/Snacks and (b) evaluate the quality of the Beverages/Snacks; however, the University may not and will not control the means or manner of the Vendor’s performance. The Parties are acting herein as independent contractors and independent employers. Nothing herein contained shall create or be construed as creating a partnership, joint venture, or agency relationship between the Parties; and no Party shall have the authority to bind the other in any respect. The Vendor is responsible for determining the appropriate means and manner of performing under this Agreement. The Vendor is not an officer, employee, or agent of Auburn University.

20.9 Notice; Contacts. Any notice required by or made in connection with this Agreement shall be validly given if in writing and sent to the respective addressees of the Vendor and the University by registered or certified mail, postage prepaid. The University’s contacts for submittals and any other correspondence and notices related to performance under this Agreement shall be:


Scott Carr

Senior Associate Athletics Director for External Affairs

Corner of Samford and Donahue

Auburn, Alabama 36849

Bob Ritenbaugh

Assistant Vice President for Auxiliary Services

100 Samford Hall

Auburn, Alabama 36849

with a copy to:

Missty Kennedy

Assistant Director, Procurement Services

Office of Procurement and Payment Services

311 Ingram Hall

Auburn, Alabama 36849


and
Jon G. Waggoner

University Counsel

101 Samford Hall

Auburn, Alabama 36849


or such other individuals as may be serving in these positions at the time.
The Vendor’s contacts for submittals and any other correspondence and notices related to performance under this Agreement shall be:

_________________

_________________

_________________

_________________
With a copy to:
_________________

_________________

_________________

_________________

or such other individuals as may be serving in these positions at the time.



20.10 Payment of the Vendor’s Obligations. The Vendor agrees to make payments promptly when due to all persons supplying to the Vendor labor or materials for the provision of the Beverages and Snacks provided for in this Agreement; to pay all contributions or amounts due to the industrial accident insurance provider incurred in connection with the performance of this Agreement; to not permit any lien or claim to be filed or prosecuted against the State of Alabama on account of any labor or material furnished; and to pay to the Alabama Department of Revenue all sums withheld from employees, pursuant to Alabama law. If the Vendor fails or refuses to make any such payments required herein, the appropriate University official may pay such claim and charge the amount of the payment against funds due or to become due to the Vendor under this Agreement. Any payment of a claim in the manner authorized by this section shall not relieve the Vendor or the Vendor’s surety, if any, of obligations with respect to any unpaid claims.

20.11 Severability. If any provisions of this Agreement are declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular provision held to be invalid.

20.12 Successors in Interest. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns.

20.13 Tax Compliance Certification. By executing this Agreement, the undersigned hereby certifies under penalty of perjury that the undersigned is authorized to act on behalf of the Vendor and that the Vendor is, to the best of the undersigned’s knowledge, not in violation of any State of Alabama or Federal Tax Laws of any nature. This includes compliance with Section 41-4-116 of the Code of Alabama (1975), which requires that every bid submitted and contract executed contain a certification that a vendor or contractor and all of its affiliates that make sales for delivery into the State of Alabama, or lease goods for use in the State of Alabama, are registered, collecting, and remitting Alabama state and local sales, use and/or lease taxes on all taxable transactions within the State of Alabama.

20.14 Waiver. Failure of either of the Parties to enforce any provision of this Agreement shall not constitute a waiver or relinquishment by the other Party of its right to such performance in the future or a waiver or relinquishment of the right to enforce any other provision of this Agreement.

20.15 Time of Essence. Time is expressed to be of the essence of this Agreement.

20.16 No Third Party Beneficiaries. No provision of this Agreement is intended to confer upon any person other than the Parties hereto any rights or remedies hereunder.

20.17 Captions; Construction. The captions and other headings contained in this Agreement as to the contents of particular articles and sections of this Agreement are inserted for convenience of reference only and are in no way to be construed as part of this Agreement. Defined terms in the singular shall include the plural as well as the singular and vice versa.

20.18 Interpretation. Each of the Parties hereto has participated in the drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.

20.19 Multiple Counterparts. This Agreement may be signed and delivered, by facsimile or otherwise, in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof (whether by facsimile or otherwise) signed by the other Party hereto.

20.20 Entire Agreement. The Parties understand and agree that this instrument contains the entire agreement among the Parties hereto. The Parties hereto further understand and agree that the other Party and its agents have made no representations or promises with respect to this Agreement or the making or entry into this Agreement, except as expressly set forth in this Agreement, and that no claim or liability, or cause for termination shall be asserted by either Party against the other, and such Party shall not be liable by reason of the making of any representations or promises not expressly stated in this Agreement, any other written or parole agreement with the other Party being expressly waived. The Parties hereto acknowledge that they have thoroughly read this Agreement, including any exhibits or attachments hereto, and have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights and obligations contained herein.


20.21 Authority. Each Party represents and warrants that it has the authority to enter into this Agreement and to perform all obligations hereunder.

[SIGNATURE PAGE FOLLOWS]



IN WITNESS WHEREOF, the University and the Vendor have caused this Agreement to be executed and delivered by their duly authorized officers.

AUBURN UNIVERSITY

By: _______________________________

Name: Donald L. Large, Jr.

Title: Executive Vice President



Company
By: _______________________________

Name: _____________________________

Title: ______________________________

Bottler
By: _______________________________

Name: _____________________________

Title: ______________________________
EXHIBIT A

BEVERAGES

Beverage Name

SKU

Description

Size

Packaging Details
















EXHIBIT B

Vending Locations

AU AUBIE HALL #1 20 OZ        

AU BROUN HALL #4 FRTP        

AU BURTON HALL #1 CAN

AU CAMBRIDGE HALL #1 CAN

AU CARY HALL #1 CAN          

AU CARY HALL #2 20 OZ         

AU COLLEGE OF ENGINEERING    

AU COMER 20 OZ                 

AU COMER HL #1 CAN HALLWAY   

AU COMER HL #2 FRTP HALLWAY  

AU DOBBS HL #1 CAN DRM D     

AU DOBBS HL #2 20OZ DRM D    

AU DORM L #1 CAN             

AU DORM M                    

AU DOWDELL HALL DORM 5       

AU DOWELL HL #1 DRM G CAN    

AU DOWELL HL #2 20 OZ DRM G   

AU DRAKE #2 STDNT HLTH WTR   

AU DUDLEY HL #3 WTR&PA       

AU DUDLEY HL #6 20 OZ         

AU DUNCAN HALL               

AU DUNCAN HL #1 CAN DRM B    

AU DUNN HL #1 CAN DRM E      

AU DUNN HL #2 20 OZ DRM E     

AU DUNSTON BLDG #2           

AU DUNSTON BLDG 1 CAN        

AU DUNSTON BLDG 1 FRTP WTR   

AU DUNSTON HALL CAN  

AU EAGLE HALL #1 20 OZ        

AU EXTENSION HALL            

AU FORESTRY 20 OZ CSD #2     

AU FORESTRY BLDG #1 CAN      

AU FORESTRY CAN 1 BREAK      

AU FORESTRY CAN FACULTY      

AU GLENN HALL DORM 6         

AU GRAVES HL #1 CAN DRM F    

AU GRAVES HL #2 20 OZ DRM F   

AU HALEY CENTER BASEMENT     

AU HALEY CTR #01 20 OZ        

AU HALEY CTR #02 20 OZ       

AU HALEY CTR #03 CAN          

AU HALEY CTR #04 20OZ        

AU HALEY CTR #05 FRTP FLR 1  

AU HALEY CTR #07 20 OZ        

AU HALEY CTR #08 20 OZ        

AU HALEY CTR #10 LOBBY CAN   

AU HALEY CTR #16 PA WTR      

AU HALEY CTR #17 CAN         

AU HALEY CTR ENERGY          

AU HALEY CTR KMX             

AU HARPER HL #1 DRM 1        

AU HOLLIFIELD HL #1   

AU HOLLIFIELD HL #2 20 OZ     

AU INFO CTR #1 CAN HALLWAY   

AU INFO CTR #2 20 OZ          

AU INFO CTR #3 CAN STAIRWELL 

AU KATIE BROUN #2 CAN LOUNGE 

AU KELLER HALL DORM #9       

AU KNAPP HL #1 DRM H         

AU KNAPP HL #2 DRM H         

AU L BUILDING CAN            

AU LANE HALL DORM #7         

AU LIBRARY                   

AU LIFE SCNCE BLD #1 CAN     

AU LIFE SCNCE BLD #4 FRTP    

AU LIFE SCNCE BLD #5          

AU LITTLE HL #3 DRM 3        

AU LOWDER BUS BLD #1 WATER   

AU LOWDER BUS BLD #2 WATER   

AU LUPTIN HALL DORM #8  

AU MAGNOLIA HALL #1 20 OZ        

AU MARTIN HL #1 CAN FLR 2    

AU MARTIN HL #2 CAN FLR 2    

AU MELL HALL                 

AU MILLER HALL FL 1 CAN      

AU NEW ATH CMPLX #1 CAN      

AU NTML TILLAGE LAB          

AU NUCLEAR SCIENCE CAN

AU OAK HALL #1 20 OZ        

AU OLD B & G CAN-MAIL ROOM   

AU OWEN HALL DORM #10        

AU PARKER HL #1 CAN          

AU PARKER HL #2 20OZ         

AU PARKER HL #3 WATER        

AU PARKER HL #4 20OZ         

AU PARKER HL #5 FRTP     

AU PETRIE HALL CAN           

AU PHAMARCY                  

AU PHAMARCY                  

AU PHARMACY BLDG #1 CAN      

AU PHARMACY BLDG #3 FRTP     

AU PHARMACY BLDG #4 20 OZ    

AU PLAINSMEN #1 20 OZ         

AU POULTRY SCIENCE BLDG NCB  

AU POULTRY Science Bldg Csd

AU PSYCHOLOGY LAB CAN        

AU QUAD CTR #1 CAN           

AU QUAD CTR #2               

AU RBD LIBRARY               

AU RBD LIBRARY               

AU SAMFORD HALL #1 CAN        

AU SASNETT HL #1 CAN DRM K   

AU SASNETT HL #2 CAN DRM K   

AU SASNETT HL #3 20OZ DRM K  

AU SOUTH DONAHUE HALL #1 20 OZ

AU SPIDLE HL #1 CAN          

AU SPIDLE HL #2 JUICE   

AU STADIUM DECK #1 CAN           

AU STUDENT ACT               

AU STUDENT ACT #1 CAN        

AU STUDENT ACT #3 PA         

AU STUDENT ATHLETE DEVELOPMENT

AU SWINGLE HL #1 CAN   

AU TRANSIT PAVILION #1 20 OZ        

AU TRANSIT PAVILION #2 20 OZ        

AU TRANSIT PAVILION #3 20 OZ        

AU TRANSIT PAVILION #4 20 OZ        

AU TEAGUE HL DRM 4 CAN       

AU TEXTILE ENGINEERING CAN   

AU THACH HALL CAN            

AU THEATRE 20 OZ             

AU TICHENOR HALL #1 CAN      

AU TICHENOR HALL #3 FRTP     

AU TIGER HALL #1 20 OZ        

AU TOOMER HL #1 CAN DRM C    

AU TOOMER HL #2 20OZ DRM C   

AU TV STATION #1             

AU TV STATION #2             

AU VILLAGE LAUNDRY #1        

AU VILLAGE LAUNDRY #2 20OZ   

AU WALLACE BLDG CAN          

AU WALLACE BLDG DOWNSTAIR    

AU WALLACE JUICE      

AU WILLOW HALL #1 20 OZ        

AU WILMORE LABORATORY        

AU WOMENS ATHLETIC COMPLEX   

AU WOMENS ATHLETIC COMPLEX


EXHIBIT C
Auburn University Wholesale Pricing1


Beverage

Invoice Price / Case































































































































































EXHIBIT "D”


FOUNTAIN EQUIPMENT LEASE AGREEMENT(if applicable)
EXHIBIT “E”

Bottler’s Equipment Placement Agreement (if applicable)

1 The Vendor agrees to maintain the pricing set forth on this Exhibit C for Employee Beverages for the first four (4) years of this Agreement. Following the fourth (4th) year, the Vendor agrees that, should any increase be proscribed, the increase in the cost of the Employee Beverages will not exceed 3% per annum and shall comply with Section 5.1 of this Agreement. All prices for the Products are F.O.B. destination and include all costs associated with transportation, packaging, crate containers and the like necessary to complete delivery on a F.O.B. destination basis. No additional charges will be allowed for fuel surcharges, packing, loading, storage or partial shipments. Prices also include any container return allowances that may be in effect.



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