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Model Agreement to Be Negotiated - Exclusive Pouring Rights

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					Law No. 07-CC
Section V/Model Agreement to be Negotiated
Exclusive Pouring Rights


                          Model Agreement to be Negotiated

      This Agreement (Agreement) is between Suffolk County Community College
(College), a chartered Community College under the sponsorship of the County of
Suffolk (County), having its principal office at 533 College Road, Selden, New York
11784, and

                         (Company), a corporation organized under the laws of the
State of    and registered to do business in the State of New York, having its principal
place of business at                                  .

      The parties hereto desire to make available to the College the services of
Company to be the exclusive provider of soft drinks for resale at all College facilities
(Services).

Term of Agreement:          (insert start date) to (insert end date), with one (1) five-
                            year option to renew.

Total Cost of Agreement: Revenue to the College:

Terms and Conditions:       Shall be as set forth in Exhibits A through XX attached.

In Witness Whereof, the parties hereto have executed this Agreement as of the latest
date written below.

Company                                          Suffolk County Community College

By: ______________________                       By: _______________________
Name                                             Salvatore J. La Lima
Title                                            President
Date: ____________________                       Date: ______________________




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Approved as to Form, Not                    Recommended:
Reviewed as to Execution:                   Suffolk County Community
Robert J. Cimino, Suffolk County Attorney   College

By: ______________________                  By: ________________________
          Cynthia Kay Parry                            Steven F. Schrier
       Assistant County Attorney            Vice President of Legal Affairs,
                                            Planning and Information Services
Date: _____________________                 Date: _______________________




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 Exclusive Pouring Rights


                                       Table of Contents

  Exhibit A:     General Terms and Conditions

         1.      Company Responsibilities
         2.      Inconsistent Provisions
         3.      Term and Termination
         4.      Payment
         5.      Non-Appropriation
         6.      Indemnification
         7.      Contact Persons
         8.      No Default
         9.      Financial Disclosure
        10.      Gratuities
        11.      Independent Contractor
        12.      No Assignment/Subcontracting
        13.      Severability
        14.      Entire Agreement
        15.      No Oral Changes
        16.      Dispute Resolution

Exhibit B:     RFP
               (or in the alternative, set forth modified requirements)

Exhibit C:     Proposal
                 (or in the alternative, set forth modified terms and conditions)




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Exhibit A
                           General Terms and Conditions

1.    Company Responsibilities:

      a.    Company shall be the exclusive provider of soft drinks for resale at all
            College facilities, as more particularly described in this Exhibit A and
            Exhibits B through xx.

      b.    Company possesses sufficient expertise and skill to comply with the
            responsibilities set forth herein.

2.    Inconsistent Provisions:

      The provisions of this Exhibit A shall prevail over inconsistent provisions of any
      other Exhibit and over any other document not specifically referred to in this
      Agreement or made part thereof by this Agreement or by subsequent
      amendment in writing and signed by both parties, except to the extent that such
      provisions of this Exhibit A are specifically referred to and amended or
      superseded by such Exhibit or Amendment.

3.    Term and Termination:

      a.    Term:

            This Agreement shall cover the period provided on the first page thereof,
            unless sooner terminated as provided below.

      b.    Termination for Cause:

            In the event Company violates any of the terms and conditions of this
            Agreement, the College may terminate the Agreement, provided that no
            such termination shall be effective unless:

            i.      Company is given twenty (20) calendar days written notice of intent
                    to terminate (Notice of Intent to Terminate); and

            ii.     an opportunity for consultation with the College prior to termination;
                    and

            iii.    an opportunity to cure any violation of the terms and conditions of
                    the Agreement.


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      c.    In the event that Company has not cured, or commenced to cure, to the
            satisfaction of the College within such twenty day period (or longer period
            at the College’s option), then the College may issue a written termination
            notice (Termination Notice).

      d.    Termination for Convenience:

            i.     In addition to the College’s right to terminate for cause as above
                   stated, the College shall have the right to postpone, delay or
                   terminate the services for which Company is herein engaged at any
                   time and for any reason deemed to be in the College's interest,
                   provided that no such termination shall be effective unless
                   Company is given thirty (30) calendar days' written notice of intent
                   to postpone, delay or terminate.

            ii.    Upon receipt of a notice pursuant to the foregoing subparagraph,
                   Company shall promptly discontinue all services affected unless
                   otherwise directed by the notice of termination.

            iii.   In such event of termination, for the College's convenience,
                   Company shall pay the College all revenue due for the services
                   rendered through the date when notice of termination was received
                   by Company.

4.    Payment:

      a.    Payment of any annual guaranteed payment will be made annually at the
            start of the contract year.

      b.    Payment of any percentages due for gross monthly sales will be paid
            semi-annually, starting six months for the contract start date through the
            ending date of the contract.

      c.    Company will semi-annually provide the College with a record of its gross
            monthly sales to the College’s concessionaires.

      d.   The College shall have a continuing lien on all personal property of
           Company for any and all sums due the College in connection with this
           agreement. Payments shall be accompanied by a financial report
           indicating gross sales. The financial report shall be attested to by a
           responsible officer of the Company.
5.    Indemnification:


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      Company shall indemnify and hold harmless the College, its contractors (if any),
      employees, agents and other persons from and against all third party claims,
      costs, judgments, liens, encumbrances and expenses, including reasonable
      attorneys' fees, for bodily injury, tangible property damage or wrongful death to
      the extent arising directly and proximately out of the negligence or intentionally
      wrongful acts or omissions of Company, its agents, employees or subcontractors
      in connection with the performance of the services described or referred to in this
      Agreement.

6.    Contact Persons:

      a.    Any communication, notice, claim for payment, report or other submission
            necessary or required to be made by the parties regarding this Agreement
            shall be deemed to have been duly made upon receipt by the College or
            Company or their designated representative at the following address or at
            such other address that may be specified in writing by the parties:

            For the College:

                    Insert Name & Title

                    and

            For the Company:

                    Insert Name & Title


      b.    Each party shall give prompt written notice to the other party of the
            appointment of successor(s) to the designated contact person(s) or his or
            her designated successor(s).

      c.    Any communication or notice regarding termination or litigation shall be
            deemed to have been duly made upon receipt by the College’s Legal
            Affairs and Compliance Office at the following address (or at such other
            address that may be specified in writing by the College):

                    Legal Affairs and Compliance Office
                    Suffolk County Community College
                    533 College Road, NFL30
                    Selden, New York 11784

7.    No Default:

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      Company warrants that it is not in arrears to the County or the College upon debt
      or contract and is not in default as surety, contractor or otherwise on any
      obligation to the County or the College.

8.    Financial Disclosure:

      Company represents and warrants that, unless exempt, it has filed with the
      Comptroller of Suffolk County the verified public disclosure statement required by
      Local Law No. 14-1976, as amended (Sec. A5-7 of the Suffolk County Code)
      and shall file an updated such statement with the said Comptroller on or before
      the 31st day of January in each year of this Agreement's duration. Company
      acknowledges that such filing is a material, contractual and statutory duty and
      that the failure to file such statement shall constitute a material breach of this
      Agreement, for which the College shall be entitled, upon a determination that
      such breach has occurred, to damages, in addition to all other legal remedies, of
      fifteen percent (15%) of the amount of the Agreement.

9.    Gratuities:

      Company represents and warrants that it has not offered or given any gratuity to
      any official, employee or agent of Suffolk County or New York State or the
      College or of any political party, with the purpose or intent of securing an
      agreement or securing favorable treatment with respect to the awarding or
      amending of an agreement or the making of any determinations with respect to
      the performance of an agreement, and that the signer of this Agreement has
      read and is familiar with the provisions of Local Law No. 32-1980 of Suffolk
      County (Chapter 386 of the Suffolk County Code).

10.   Independent Contractor:

      It is expressly agreed that Company's status hereunder is that of an independent
      contractor. Neither Company nor any person hired by Company shall be
      considered employees of the College or the County for any purpose.

11.   No Assignment/Subcontracting:

      Company shall not assign, transfer, convey, sublet or otherwise dispose of this
      Agreement, or any of its right, title or interest therein, or its power to execute this
      Agreement, or assign all or any portion of the monies that may be due or
      become due to Company under the terms of this Agreement, to any other person
      or corporation, without the prior consent in writing of the College, and any
      attempt to do any of the foregoing without such consent shall be of no effect.

12.   Severability:
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      It is expressly agreed that if any term or provision of this Agreement, or the
      application thereof to any person or circumstance, shall be held invalid or
      unenforceable to any extent, the remainder of this Agreement, or the application
      of such term or provision to persons or circumstances other than those as to
      which it is held invalid or unenforceable, shall not be affected thereby, and every
      other term and provision of this Agreement shall be valid and shall be enforced
      to the fullest extent permitted by law.

13.   Entire Agreement:

      It is expressly agreed that this instrument represents the entire agreement of the
      parties and that all previous understandings are merged in this Agreement.

14.   No Oral Changes:

      No modification of this Agreement shall be valid unless written in the form of an
      Addendum or Amendment signed by both parties.




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15.   Dispute Resolution:

      a.    In the event of any dispute, controversy or claim with respect to the
            interpretation of any provision of this Agreement or the performance of
            either party, the objection shall be referred to the College Project Manager
            and Company Project Manager.

      b.    In the event the dispute, controversy or claim is not resolved, within fifteen
            (15) calendar days, between the College Project Manager and Company
            Project Manager, then and in that event, upon the written request of either
            party, the dispute, controversy or claim shall be referred to the College’s
            Vice President of Legal, Planning and Information Technology and the
            Company’s Contract Administrator.

      c.    In the event the dispute, controversy or claim is not resolved, within fifteen
            (15) calendar days, between the Vice President of Legal, Planning and
            Information Technology and Company’s Contract Administrator, then,
            upon the written request of either party, the parties will each appoint a
            representative (“Representative”) who has authority to bind the party
            being represented and does not devote a material part of his or her time
            to performance under this Agreement. The Representatives will meet for
            the purpose of attempting to resolve the dispute. The Representatives will
            negotiate in good faith to resolve the dispute without resort to formal
            proceedings. During the course of such negotiation, the parties will comply
            with all reasonable requests for access to relevant information. Formal
            proceedings may not be commenced until either the earlier of:

            i.     The Representatives concluding in good faith that amicable
                   resolution through continued negotiation of the matter does not
                   appear likely; or

            ii.    Sixty (60) days after the initial written request of a party to negotiate
                   such dispute; provided, however, that this provision shall not be
                   construed to prevent a party from filing a formal proceeding earlier
                   to avoid the expiration of any applicable limitations period or to
                   preserve a superior position with respect to other creditors. Both
                   parties shall continue to perform their respective obligations
                   hereunder during the negotiations referred to in this paragraph.

                              End of Text for Exhibit A



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