EXCLUSIVE BEVERAGE AGREEMENT

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EXCLUSIVE BEVERAGE AGREEMENT
EXCLUSIVE BEVERAGE AGREEMENT
This Agreement is entered into, this I ~ day of December, 1998, by and among
Minnesota State Colleges and Universities on behalf of Minnesota State University,
Mankato (the "University"); Minnesota State University, Mankato Foundation, Inc., a
Minnesota non-profit corporation (the "Foundation"); and Pepsi-Cola of Mankato, Inc., a
Minnesota corporation, 1970 James Drive, North Mankato, Minnesota, 56003 (hereinafter
"Pepsi").
RECITALS:
A.
University's Main Campus (the "Campus") is located in Mankato, Minnesota.
As used herein, the term "Campus" consists of the geographic area indicated on EXHIBIT
1, which is attached hereto and made a part hereof by reference. Unless specifically
excepted herein, the parties hereto acknowledge and agree that the University has the
legal right to control beverage vending and/or service at all locations on the Campus.
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B.
Pepsi is in the business of manufacturing and/or distributing non-alcoholic
carbonated and non-carbonated beverages in concentrated, mixed and packaged forms.
C.
University has issued a Request for Proposal dated June 1, 1998, soliciting
requests for long-term beverage partnership proposals, the primary objective for which is
to improve the University's beverage services and net revenues by maximizing the
availability of products and develop creative strategies to benefit University and the
successful proposer.
D.
University has determined that the best and final offer by Pepsi was the most
advantageous to University.
E.
University desires to grant to Pepsi the primary right to sell or otherwise
provide and promote its beverage products on the Campus, pursuant to the terms and
conditions contained in this Agreement.
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and in further consideration of the mutual and dependent promises set forth
herein, the parties hereby agree as follows:
TERMS OF AGREEMENT
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Definitions. As used in this Agreement, the following defined terms shall
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have the meaning specified below:
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1.1
"Beverage Lines" means the soft drink products and new age products which
are set out on EXHIBIT 2, which is attached hereto and made a part hereof by
reference, plus any new products that may be added or carried by Pepsi, subsequent
to the date of this Agreement.
1.2
"Beverage Products" means the Postmix, Premix, and Packaged Products.
1.3
"Fountain Products means fountain beverage products produced from
Postmix or poured as Premix products, including both carbonated and non-carbonated
beverages. This shall include regular and diet soft drinks, juice products, teas, and
isotonic drinks.
1.4
"Packaged Products" means any packaged beverage products produced or
distributed by Pepsi.
1.5
"Postmix Products" means undiluted concentrated beverage syrup distributed
by Pepsi for mixing and dispensing at the Campus.
"Premix Products" means bulk quantity beverages distributed by Pepsi for
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dispensing in individual portions at the Campus.
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Term and Effective Date of this Agreement. Except as specified immediately
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hereinafter, the term of this Agreement shall be for a period of ten (10) years,
commencing on January 1, 2000 and terminating at midnight on December 31, 2009
(the "Term"). The effective date of this Agreement shall be January 1, 2000, with the
exception that the following payments or obligations shall be due prior to said date:
the first two contributions to the Taylor Center, the contribution to the Andreas
Theater, the Internship Program, Can Panels and Packaging Promotions, Vending
Promotions, Radio Advertising, Soft Drink Pricing, the providing of Fountain Products,
and the Exclusive Vending Agreement for Residence Halls (as set out at paragraph
4.3), the exact terms of which are described more specifically hereinafter.
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Cash Donation, Incentive Rebates and Promotions.
3.1
Cash Donations. Pepsi agrees to pay Foundation (as specified hereinafter) the
following cash donations:
(a)
To the foundation for construction of the Taylor Center, the
donations as set out on EXHIBIT 3, which is attached hereto and
made a part hereof by reference, in the total amount of Two Million
Two Hundred Fifty Thousand Dollars ($2,250,000.00).
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(b)
An unrestricted donation to the Foundation for the Andreas
Theater in the total amount of Twenty-Five Thousand Dollars
($25,000.00) to be made within thirty (30) days of the signing of
this Agreement.
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(c)
An unrestricted annual donation of Ten Thousand Dollars
($10,000.00) to the Foundation's Presidential Scholarships, and a Ten
Thousand Dollar ($10,000.00) annual unrestricted donation to the
Foundation's Talent Grants. The first such payment due hereunder shall be
due on January 1, 2000, shall be in the amount of Ten Thousand Dollars
($10,000.00), and shall be divided equally between the Presidential
Scholarships and Talent Grants. The second such installment shall be due
on August 1, 2000, in the amount of Ten Thousand Dollars ($10,000.00) and
shall be divided equally between the Presidential Scholarships and Talent
Grants. Contributions in the same amounts and on the same dates will be
made on each of the remaining nine (9) years of the Term of this Agreement.
The Foundation shall have the sole authority and discretion to determine who
are the appropriate recipients of these respective scholarships and grants.
(d)
Pepsi shall become a co-sponsor of the Cub Foods Maverick
Fever Promotion, and shall contribute to the Foundation, for the use of the
University's Athletic Department, the sum of Fifteen Thousand Dollars
($15,000.00) annually for said promotion. The first such payment shall be
due on October 1 2000, with nine (9) succeeding annual payments, also
in the amount of Fifteen Thousand Dollars ($15,000.00) each, to be made
on October 1s1 of each year thereafter during the Term of this Agreement.
In the event the Cub Foods Maverick Fever Promotion ceases to exist, these
annual contributions shall be made to the Foundation, for the use of a
University Athletic Program mutually agreeable to University and Pepsi.
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(e)
Pepsi shall become a sponsor of the University's Hall of Fame
Banquet, and shall make an annual unrestricted donation to the Foundation
for said Hall of Fame Banquet in the amount of Five Thousand Dollars
($5,000.00). The first such donation shall be due on September 1, 2000,
with succeeding annual payments, in a similar amount, to be made on
September 1sl of each year during the Term of this Agreement.
(f)
Pepsi shall make annual unrestricted donations in the amount
of Five Thousand Dollars ($5,000.00) to the Foundation. The first such
annual contribution shall be made on December 1,2000, with succeeding
annual payments, in similar amounts, to be made on December 1sl of each
year during the Term of this Agreement.
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(g)
Pepsi shall make an annual unrestricted donation of One
Thousand Dollars ($1,000.00) to the Foundation, for the use of the
University's Department of Theater Arts. The first such annual contribution
shall be made on August 1, 2000, with succeeding annual payments in
similar amounts to be made on August 1sl of each year during the Term of
this Agreement.
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(h)
Pepsi shall make an annual unrestricted contribution of One
Thousand Dollars ($1,000.00) to the Foundation, for the use of the
University's Department of Music. The first such annual contribution shall be
made on August 1, 2000, with succeeding payments in similar amounts to
be made on August 1st of each year during the Term of this Agreement.
3.2
Incentive Rebates. Pepsi agrees to pay to University an incentive rebate of
Three Dollars ($3.00) per case for each case sold above the annual base amount of
twenty-three thousand three hundred (23,300) cases of 20 ounce N.R. (non-returnable)
Packages. This payment applies only to 20 ounce N.R. Packages, and to no other
package. The first such payment shall be due by Pepsi to the University on April 15, 2001,
for the year January 1st through December 31 st , 2000. The same procedure shall be
followed each year thereafter during the Term of this Agreement. The parties hereto
acknowledge and agree that Pepsi is not guaranteeing a specific dollar amount to
University, but rather is agreeing to pay to University the amount specified above per case
for any cases sold over and above the annual base amount of twenty three thousand three
hundred (23,300) cases.
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All athletic facility concessions, including, but not limited to, the Taylor Center,
Otto Arena, and Blakeslee Field, shall sell exclusively twenty (20) ounce PET (polyethylene
terephthalate) bottles.
3.3
Promotions.
Pepsi agrees to provide University with the following
promotions. The parties hereto acknowledge and agree that these promotions are not
actual cash distributions to the University by Pepsi, but rather take the form of Pepsi
providing, at its cost, promotion and marketing funds as specified hereinafter:
(a)
Pepsi shall provide two (2) internships per year through the
University's College of Business. The actual job descriptions and the terms
of payment shall be determined on a mutually agreeable basis between"
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....".Pepsi and the Dean of the College of Business, or a designee appointed by
the Dean of said College. Each intern will perform such duties as are
assigned by Pepsi, which duties shall include, but not be limited to, working
directly with the University's Office of Marketing and Communications in
creating marketing programs, handling event sponsorships, implementing
vending promotions, radio advertising, and can panel promotions. This
promotion shall commence to be available to the University as of January 1,
1999.
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(b)
Pepsi and University acknowledge that customized can panels
are available from Pepsi, whereby local events, schedules, championship
teams or other promotions can be placed on the side of 12 ounce cans.
Pepsi shall, as requested by the University's Office of Marketing and
Communication, provide customized can panels, at no cost to University,
provided that this promotion shall only be available up to a maximum of four
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(4) can panels per year. This promotion shall commence to be available to
the University as of January 1, 1999.
(c)
Pepsi shall provide support for the grand opening of the Taylor
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Center with extensive advertising through can panels (over one million cans ' ..,
of Pepsi products will be distributed with the Taylor Center featured on the \
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side panel), and radio advertising. This support will be provided in .\' tJ.;;\ ,: '> .
conjunction with the grand opening of the Taylor Center which is anticipated
to be in September or October of the year 2000.
(d)
Pepsi shall promote vendor sales by offering local "Instant Win"
promotions on bottles and cans. Each semester Pepsi shall conduct at least
one (1) such promotion through vending. Prizes to be provided will range \\ ,,: \",,-' .
from tickets to upcoming events at University, hats, tee shirts, and other', ,Y
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promotional items. Customized can panels featuring University interests will '", \ '~~.~'"
also be vended. The first such promotion will take place in the spring:;:::'--­
semester of the year 1999, and each semester thereafter up to and including
the end of the Term.
(e)
Pepsi shall provide local radio advertising for the purpose of
promoting awareness of special events at University. The University
marketing intern working with Pepsi will assist in developing these "
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promotions. These radio promotions will commence with the spring
semester of 1999, and continue each semester thereafter until the end of the
Term. Pepsi shall provide up to a maximum amount of Five Thousand
Dollars ($5,000.00) per year for providing the services called for in this
paragraph.
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(f)
Pepsi currently has available at its Mankato facility TFS, a
software program which assists students in locating scholarships and other
financial aid for college tuition. The database for this program is updated
annually and is the most comprehensive package of its kind, with information
on more than four hundred fifty thousand (450,000) academic and athletic
scholarships. If the University so desires, Pepsi will notify high schools in
the area surrounding University that this service will be available from
University. The TFS software program shall be made available to University,
at no cost to University, for the school year of 1999, and for each school
year thereafter through the Term.
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Beverage Vending. Except for Services for the Blind, University grants
Pepsi an exclusive license and right to install, operate, supply and service automatic soft
drink and new age product vending machines on the Campus. Pursuant to this grant of
license, University shall reqUire its vendors to purchase directly from Pepsi, at the prices
provided herein, the supplies of beverages for all vending machines on Campus, whether
said vending machines are owned by Pepsi or another individual or entity. Throughout the
Term, University shall not grant any other person or entity the right or license to install or
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operate any piece of vending equipment on the Campus which offers or sells any beverage
product that is competitive with the Beverage Lines or Beverage Products offered or sold
by Pepsi. It is understood and agreed to by the parties herein, that as to all vending
machines on Campus, eighty percent (80%) of the selection in said vending machines shall
consist of 20 ounce bottles and twenty percent (20%) of the selection shall consist of cans.
4.1
Vending EQuipment.
(a)
Pepsi shall provide, at its own expense, all necessary
automatic equipment necessary to provide quality beverage service. Pepsi
shall guarantee that all equipment shall meet the approval of State and local
Health Department specifications, and the specifications published by the
United States Public Health Federation.
(b)
Vending machines shall be state of the art when initially
installed pursuant to this Agreement and shall be certified by the Automatic
Merchandising Industry Health Code. Equipment shall be of most recent
design, efficient in operation, meet requirements of the Americans With
Disabilities Act for accessibility standards, and be otherwise acceptable to
the University.
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(c)
At the time of installation or beginning of performance under
this Agreement, equipment shall be identified by machine serial number,
manufacturer, meter reading and location. Any changes in machine
locations or addition or reduction in the number of machines shall be
approved by the University and identified in the above noted manner. A
listing of all such equipment is attached hereto, marked as EXHIBIT 4, and
made a part hereof, and shall be updated as necessary hereafter.
(d)
Pepsi shall retain ownership of its machines and the University
shall take such reasonable measures as may be necessary to prevent theft,
pilferage and damage from and of machines. However, the University shall
assume no responsibility for any such losses if they occur.
In addition to machine operating instructions, Pepsi shall supply
(e)
in a conspicuous manner on each machine, consumer information as to
where malfunctions should be reported, where refunds may be obtained, and
where comments on product quality may be made.
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(f)
Pepsi shall operate machines during each year of the Term of
this Agreement. However, where reduced usage occurs in specific locations,
due to the building or area being closed, Pepsi and University shall agree
that specific machines may be temporarily inoperative. The final decision as
to the location and operation of specific machines shall rest with the
University.
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(g)
The University shall allow Pepsi access to such spaces and
areas as are necessary to the performance of this Agreement. Use of the
spaces shall be requested by Pepsi and shall be specifically identified by the
University in the Agreement or by Addendum signed by the University's
agent.
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(h)
The parties hereto shall mutually agree on the number of
machines that will be equipped with a debit card reader compatible with the
University student/employee identification and financial service card system,
as the same may be changed from time to time. If necessary, in order to
implement the preceding sentence, Pepsi shall enter into any necessary
agreements with parties involved in the University's "MavCard" program.
Pepsi shall be solely responsible for the cost of compliance therewith,
including any service or similar charges. A debit card reader shall be, as
University and Pepsi shall agree, "on-line" or "off-line". Pepsi shall pay all
costs to deliver, install (including necessary wiring inside the vending
machine) and maintain each debit card reader and all other equipment
required for collections. Pepsi shall be responsible for reading the machines.
Pursuant to the terms set out at paragraph 4.4 hereinafter, Pepsi shall report
to the University Business Affairs Office by the tenth (10th ) day of each month
the data on gross sales from the machines, and University shall pay Pepsi
the gross sales due at the time that it receives the report specified herein.
Debit card readers shall be limited to information necessary to confirm the
transaction (for example, account number that paid for the purchase) and
shall not be equipped to access other card holder information such as name,
address or other personal information. If any such other information comes
into Pepsi's possession, it shall promptly be purged from all data storage
systems, and Pepsi shall provide University with written verification. No
information obtained by Pepsi shall in any circumstances be released to third
persons.
4.2
Pricing for Purchase of Vending Products from Pepsi. The vending products,
and the prices for the vending products, which prices shall remain in effect for the calendar
year January 1st through December 31 St, 1999, and for the calendar year January 1st
through December 31 s1 2000, are as set out on EXHIBIT 5, which is attached hereto, and
made a part hereof by reference. Thereafter, prices may be subject to an upward
adjustment upon the mutual agreement of University and Pepsi. Provided, however, that
the University's consent to an increase shall not be withheld in the event that Pepsi is able
to demonstrate, to the University's reasonable satisfaction, that the change is due to non­
recurring factors outside Pepsi's control, and failure to permit a greater change would work
an unreasonable financial hardship.
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4.3
Commission. Pepsi shall pay University a commission equal to twenty
percent (20%) of all vending machine gross sales that take place in the University's
residence halls and shall apply to any and all sales that occur as of January 1, 1999, and
subsequent thereto, during the Term of this Agreement.
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4.4
Accounting.
(a)
All receipts from vending operations shall belong to Pepsi and
Pepsi shall be solely responsible for all costs herein noted in this Agreement
relative to said vending operations. Pepsi shall further be responsible for
payment to University of the agreed upon commission to the University.
(b)
All vending machines shall be metered with non-reset counters.
(c)
Pepsi shall be required to report to the University's Business
Affairs office, by the tenth (10th ) day of each month, during the Term of this
Agreement, the gross sales ("gross sales" is herein defined as total sales,
less any applicable sales taxes) and meter reading for each machine for the
previous month. Pepsi shall report to the University on a form acceptable to
the University. Payment ofthe commission shall be due at the same time as
the report speci'fied herein, said payment being for the previous month's
sales.
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(d)
Pepsi shall report to the University's Business Affairs Office by
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the tenth (10 ) day of each month, during the Term of this Agreement, the
gross sales of product that have been purchased via MavCard transactions.
A specific format for reporting such sales shall be determined by the
University and Pepsi. Following verification of the report, the University shall
remit the amount of such sales to Pepsi. All MavCard sales shall be reported
with cash sales in determining the University's commission payment.
(e)
University shall retain the right to accompany Pepsi
representatives on their rounds to remove money from vending machines
and be present while same is counted, and also to accompany Pepsi
representatives when MavCard readings are taken.
(f)
A voucher system shall be established to verify refunds. Each
voucher shall indicate the machine which malfunctioned and the person who
is claiming the refund. If the University pays the refund, Pepsi shall
reimburse University any amount so advanced.
4.5
Maintenance. Pepsi shall, at its sole expense, maintain all equipment
supplied for the University vending service, in optimum working order. Minimum
requirements for the maintenance of equipment are as follows:
(a)
Pepsi will, at all times, maintain sufficient staff to properly
comply with the terms of this Agreement.
(b)
Pepsi will be responsible for all service and maintenance on
its machines. Service and maintenance shall include, but not be limited to,
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providing fresh merchandise in the machines (including weekends), washing,
sanitizing the equipment to insure sanitary conditions and acceptable
appearance, as well as maintenance to keep machines in good working
condition. Pepsi shall agree to provide repair service no later than four (4)
hours after notification of equipment malfunction, Monday through Friday,
and within twenty-four (24) on weekends or holidays. If any machine is
inoperative for five (5) days, it shall be removed and immediately replaced
with a functioning machine. Pepsi shall be responsible for making refunds
caused by non-functioning machines.
(c)
The University shall at all times relevant hereto, retain the right
to inspect the vending machines to assure maximum cleanliness, and in all
other respects, compliance with this Agreement.
4.6
Parking. Pepsi will conform to all traffic regulations on Campus. Delivery
shall be made in conformity with University policy as to time and manner of deliveries.
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4.7
Utilities. University agrees to provide adequate electrical power (and where
necessary water) to the general area of vending equipment. Pepsi will be responsible for
the costs of connections from the machines to the power (and where appropriate, water).
However, University will not guarantee an uninterrupted power supply, although periods
of service interruption will be kept to a minimum so far as the University has control over
the source or cause of interruption. The University will not be liable for loss resulting from
the interruption or failure of any utility service.
The University shall provide daily and routine maintenance in the vending
area (but not the vending machines). This maintenance shall include emptying waste
containers, floor maintenance and pest control.
The location of any and all vending
4.8
Location of Vending Machines.
machines shall be as set out on EXHIBIT 6, and shall be amended from time to time to
reflect any changes in the number and location of said machines, throughout the Term of
this Agreement.
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Fountain Products.
5.1
Supply. During the Term of this Agreement, University and any and all of
University's contract vendors shall purchase Premix and Postmix for Fountain Products to
be sold or dispensed at the Campus through University food services, athletic concessions,
and any other fountain sales on the Campus, exclusively from Pepsi. University shall take
whatever steps are necessary to assure that all of University's contract vendors comply
with the language herein. Except in the case of an event of force majeure, Pepsi shall
provide University with supplies of the Beverage Products adequate to meet all the
reasonable requirements relating to University food service, athletic concessions, and any
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other fountain sales on the Campus, at the times and locations, and in the quantities and
types requested by University.
5.2
Fountain Equipment.
(a)
Pepsi, at its sole expense, shall acquire, install and maintain
the Fountain Equipment, described on EXHIBIT 7, which is attached hereto
and made a part hereof by reference, and any and all such other Fountain
Equipment as may be reasonably required to serve demand on the Campus,
at level and quality of service which meets or exceeds current operations,
which Fountain Equipment shall remain the property of Pepsi throughout the
Term of this Agreement.
(b)
Pepsi shall have full responsibility for the costs of any damage
to or loss of vending equipment located on the Campus, except for damage
or loss caused by the gross negligence or intentional acts of University
employees or agents. Except as provided in this Agreement, University shall
have no duty to care for the Fountain Equipment and no obligation or
responsibility to protect, maintain, repair or otherwise care for any of the
Fountain Equipment.
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5.3
Pricing. The pricing for Postmix products shall be based upon the Annual
National Account Pricing (that is, the price charged by Pepsi-Cola Company [the latter
references to PepsiCo, Inc., which supplies all Postmix to locally owned Pepsi franchises]
to its National Account customers). The parties hereto agree that the above referenced
Annual National Account Pricing is the current pricing system in effect pursuant to the
terms of the existing contractual relationship between Pepsi and University, and that the
same pricing system shall continue to be followed, without interruption, during the Term of
this Agreement. The current Annual National Account Pricing in effect is attached hereto
as EXHIBIT 8 and made a part hereof by reference.
5.4
Use of Beverages. University shall dispense the Fountain Products
exclusively for immediate or imminent consummation and shall not resell such products
either to non-University vendors or to consumers in any form other than as individual
services of Fountain Products.
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Packaged Products.
6.1
Supply.
During the Term, University and its vendors shall purchase
Packaged Products to be sold or dispensed on Campus to University food services, athletic
concessions, convenience stores, and any other packaged beverage sales on the campus,
exclusively from Pepsi. Except in the case of an event of force majeure, Pepsi shall
provide University with beverage supplies adequate to meet all the reasonable
requirements relating to University food service, athletic concessions, convenience stores,
Services for the Blind, and any other packaged beverage sales on the Campus, at the
times and locations, and in the quantities and types requested by University.
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6.2
Pricing. The prices for Packaged Products during the first year of this
Agreement shall remain in effectfor the calendar year January 1st through December 31 st,
1999, and are set out on EXHIBIT 9, which is attached hereto, and made a part hereof by
reference. Thereafter, prices may be subject to an upward adjustment upon the mutual
agreement of the parties hereto. Provided, however, that the University's consent to an
increase shall not be withheld in the event that Pepsi is able to demonstrate, to the
University's reasonable satisfaction, that the change is due to non-recurring factors outside
Pepsi's control, and failure to permit a greater change would work an unreasonable
financial hardship.
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Competing Contracts.
7.1
Existing Leases. University has notified Pepsi that prior to entering into this
Agreement, University remains bound to certain contracts and lease agreements, including
but not limited to, third-party food service providers (such as Aramark), the University Book
Store, and Services for the Blind. As to all of the above described contracts and leases,
University shall specify that Pepsi products are to be used exclusively.
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7.2
Future Leases. University agrees that, as the term of any food service lease, .
or other contract expires, no lease or contract shall be granted, extended, renewed or
renegotiated, unless the lease or contract provides for exclusive service of the Beverage
Lines of Pepsi, as such products are described herein. University shall make every effort
to insure that any such leases or contracts call for the use of Pepsi products exclusively,
and at the prices provided for herein.
7.3
Sponsorships. University shall not, during the Term, sell any featured
sponsorship opportunities at athletic events held on the Campus (for example, venue
signage, promotion during time-outs, half-times, or between innings) to any beverages in
competition with the Beverage Lines of Pepsi.
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Beverage Signage and Promotion.
8.1
Exclusivity. Except as permitted under this Agreement, University shall not
authorize the sale, distribution or sampling on the Campus of soft drink and other Beverage
Products in any product line covered by this Agreement that is not purchased from or
distributed by Pepsi. Upon learning of any such sale, distribution or sampling, University
shall promptly take reasonable steps to stop such activities, which may include, but not be
limited to, written notifications to offending parties and revocation of any permits given for
the activity.
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8.2
Promotion Exclusivity. The University shall not enter into any sponsorship
or similar agreements providing any signage on the Campus for any soft drink or other
Beverage Products in any product line covered by this Agreement that is not purchased
from or distributed by Pepsi.
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8.3
Additional Signage.
University shall construct, at University's cost,
appropriate signage advertising Pepsi, at the following venues: Bresnan Arena Main
scoreboard, softball field, pylon sign at intersection of Stadium Road and Warren Street
for Taylor Center, and soccer field. The size, shape, color scheme, and any and all other
aspects of said signage shall be mutually agreed to by University and Pepsi. The various
signs specified hereinabove shall be completed by University by the date of the first event
at each such facility subsequent to the effective date of this Agreement.
Additional Benefits to Pepsi. Throughout the Term, Pepsi shall receive
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the following benefits:
9.1
Premium seating at Bresnan Arena and Mankato Civic Center, [ten (10)
season tickets to all athletic events under University control for the Term].
9.2
Five (5) V.I.P. reserve parking permits for all University home athletic events
under the control of the University.
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9.3
Full page advertisement in University game programs (football, volleyball,
hockey, and men' and women's basketball), and a full page advertisement in the programs
for the Performing Arts Center and Ted Paul Theater.
9.4
Premium Game Night opportunity at Bresnan Arena.
9.5
Signage at concession stands at Bresnan Arena and Blakeslee Field. As part
of this Agreement, University will work closely with Pepsi to develop the new concession
areas at Bresnan Arena.
9.6
Name recognition via regular public address announcements during
University on-campus athletic events (includes Bresnan Arena and Blakeslee Field).
9.7
Corporate day at football and men's and women's basketball games.
9.8
Invitation to annual corporate sponsor/major donor luncheon.
9.9
A full page advertisement in the Maverick Coupon Book.
9.10 Additional benefits will be available upon mutual agreement between Pepsi
and University.
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Liability.
10.1 Pepsi Obligations.
Pepsi shall defend, hold harmless and indemnify
University and Foundation, and their respective officers, agents and employees from and
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against any and all claims or causes of action arising from or relating to Pepsi's
performance or breach of the terms of this Agreement, including, but not limited to, the
respective acts or omissions of Pepsi's agents or employees. Provided, however, that this
indemnity shall not be construed to bar any legal remedies which Pepsi may have against
University or the Foundation in the event either shall fail to fulfill their respective obligations
under the terms of this Agreement.
Pepsi shall have and assume complete responsibility for its employees,
including, but not limited to, all applicable government relations relating to employment,
payment of personnel, and workers' and unemployment compensation.
10.2 Obligations. To the extent provided by law, the University shall be
responsible for any and all claims or causes of action relating to its performance of the
terms of this Agreement. including, but not limited to, the acts or omissions of its
employees or agents. In addition, to the extent provided by law, the Foundation shall be
responsible for any and all claims or causes of action relating to its performance of the
terms of this Agreement, including, but not limited to, the acts or omissions of its
employees or agents. It is understood and agreed by the parties hereto that the University
is not responsible for the performance of this Agreement by the Foundation, and the
Foundation is not responsible for the performance of this Agreement by the University.
This clause shall not be construed to bar any legal remedies that the University and/or the
Foundation may jointly or severally have for Pepsi's failure to fulfill its obligations under the
terms of this Agreement.
University shall have and assume complete responsibility for its employees,
including, but not limited to, all applicable government relations relating to employment,
payment of personnel, and workers' and unemployment compensation.
11
Insurance. Prior to the effective date of this Agreement, Pepsi must furnish
a certificate of insurance to the University's Finance and Administration Office, which
certificate must be provided by a company licensed to do business in the State of
Minnesota. The certificate must name the State of Minnesota, the Board of Trustees of the
Minnesota State Colleges and Universities, the University, the University, and the
Foundation, and their respective officers, agents and employees as additional insureds,
and contain the following minimum liability coverages:
11.1 Commercial liability insurance with combined single limit coverage of One
Million Dollars ($1,000,000.00).
•
11.2 Automobile public liability coverage in the amount of Two Hundred Fifty
Thousand Dollars/Five Hundred Thousand Dollars ($250,000.00/$500,000.00).
13
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•
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11.3 In accordance with the provisions of Minnesota Statutes, Section 176.182,
as enacted, Pepsi shall provide acceptable evidence with compliance with the workers'
compensation insurance coverage requirement of Minnesota Statutes, Section 176.181,
subdivision 2, as enacted, prior to commencement of any duties to be performed under this
Agreement.
Independent Contractors. Each party to this Agreement is acting as an
12
independent contractor with respect thereto. No party is, and shall not represent itself to
be, a partner, principal, joint venturer, employee, officer, director or agent of any other party
hereto, or any affiliate of such party. As an independent contractor, no party shall be
entitled to bind or to obligate the other party or any afl'iliate thereof without the prior written
consent of such other party in the specific instance. Further, since the parties have not
formed a partnership or joint venture, University and the Foundation intend to characterize
the cash donations generated pursuant to this Agreement as tax-exempt income.
13
Notices. All notices, demands, consents or other communications required
or permitted hereunder shall be in writing and shall be deemed to have been given when
personally delivered or sent by registered or certi'fied mail, return receipt requested,
postage prepaid, addressed as follows:
•
To University:
Vice President for Finance and Administration
Minnesota State University, Mankato 60
P. O. Box 8400
Mankato, Minnesota 56002-8400
To Foundation:
Minnesota State University, Mankato Foundation, Inc.
Minnesota State University, Mankato 106,
P. O. Box 8400
Mankato, Minnesota 56002-8400
Attn: Vice President of University Advancement
To Pepsi:
General Manager
Pepsi-Cola of Mankato, Inc.
1970 James Drive
North Mankato, Minnesota,
or to such other addresses as may hereafter be furnished in writing by the respective
parties if given in the manner required above. Any notice, demand, consent or
communication given hereunder in the manner required above shall be deemed to have
been effected and received as of the date personally delivered or, if mailed, five (5) days
after the date so mailed.
•
14
Power and Authority.
Each party hereto covenants to the other party
hereto that: (a) the execution, delivery, and performance of this Agreement by such party
has been duly authorized by such party and will not violate any agreements with, or rights
14
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of, third parties; and (b) this Agreement has been duly executed and delivered by such
party and is enforceable against such party in accordance with its terms.
15
Entire Agreement; No Third Party Beneficiaries.
This Agreement,
consisting of the terms and funding commitments provided herein, contains the entire
Agreement between the parties hereto regarding the subject matter hereof, and
supersedes all other agreements, including prior funding commitments, relating to the
Beverage Products between, on the one hand, Pepsi, and on the other hand, University.
Provided, however, that the parties hereto specifically acknowledge and agree that the
Advertising Agreement between the University and Pepsi (with a term from July 1, 1992
through September 14,1999) shall remain in full force and effect, except that in the event
the language in this Agreement conflicts, the language of this Agreement shall take priority.
This Agreement may be amended or modified only by a writing signed by
each of the parties.
Except as may be specifically provided herein, no third party shall be a
beneficiary of, or be entitled to rely upon, this Agreement.
•
16
Termination.
16.1 Termination by Pepsi. This Agreement may be terminated by Pepsi if
University or the Foundation shall be in breach or default under anyone or more of its
material covenants or agreements contained in this Agreement and such breach or default
shall not be cured within thirty (30) days after written notice thereof by Pepsi to University
and the Foundation. In the event of termination as a result of University's or the
Foundation's material breach, Pepsi shall be entitled to all remedies provided by law.
16.2 Termination by University or Foundation.
This Agreement may be
terminated by University or Foundation if Pepsi shall be in breach or default under anyone
or more of its material covenants or agreements contained in this Agreement and such
breach or default shall not be cured within thirty (30) days after written notice thereof by
University or Foundation to Pepsi. In the event of termination as a result of Pepsi's
material breach, University or Foundation shall be entitled to all remedies provided by law.
17
Exclusions to Exclusivity. Notwithstanding provisions of this Agreement
that the Beverage Products shall be the only Beverage Products of their respective types
sold, dispensed or otherwise made available by or through University or Foundation on the
Campus, the following items shall not be considered to be a violation of Pepsi's exclusivity
rights hereunder:
•
17.1
Frozen juices and concentrates and juice squeezed fresh on Campus.
15
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17.2 The dispensing or serving of coffee or coffee derived products such as
cappuccinos or lattes, or any other coffee product not sold in a single-serving can or bottle.
17.3 The service of tea at University catered events, if such tea is served in cups,
and not in a single-serving can or bottle.
17.4
Italian ices.
17.5 Water most commonly dispensed into personal cups or from water coolers
and not packaged in individual bottles or cans.
•
17.6
Beverages containing alcohol.
17.7
Milk and milk-based drinks such as milk shakes and malts.
17.8 In the event that University, after the effective of this Agreement, desires to
have additional types of beverages provided to the Campus, it shall first inquire of Pepsi
as to whether or not Pepsi can provide those beverages. In the event, and only in the
event, that Pepsi is unable to provide or supply such new beverages, the University shall
then be able to make arrangements with other providers or suppliers. Provided, however,
and language to the contrary herein notwithstanding, at no point in time shall University or
Foundation permit the sale of beverages on the Campus which would be in direct
competition with the beverage lines provided by Pepsi.
Assignment; Binding Effect. This Agreement shall extend to, shall inure
18
to the benefit of and shall be binding upon each of the parties hereto, and their respective
heirs successors and permitted assigns. This Agreement shall not be assignable or
transferrable, in whole or in part, by any of the parties hereto, except upon the express
prior written consent of the other parties hereto.
•
In the event, at any time during the term of this Agreement, University or
Foundation is seeking long term financing for the benefit of the University, and as a part
of said long term financing, the financial institution being asked to provide said financing
requests that Pepsi provide financial information, University shall notify Pepsi of such
request. Pepsi's obligation under the terms of this Agreement shall be solely to the
financial institution (that is, no financial information shall be provided directly to University
or Foundation) and shall consist solely of profit and loss statements and a balance sheet.
Pepsi shall be under no obligation to provide any financial information to any financial
institution that may be working with the University that would pertain to the ownership of
Pepsi and/or owner's equity in Pepsi. Furthermore, prior to providing any such financial
information to any such financial institution, said institution must agree, in writing, that any
and all such financial information shall be considered confidential information which shall
be kept strictly confidential, shall not be disclosed or furnished to anyone outside of the
financial institution, and will be used by the financial institution solely for the purpose of
16
•
determining whether or not to provide long term financing to University. Pepsi shall not be
subject to any liability whatsoever to the financial institution relative to the accuracy and
completeness of the financial information so provided.
19
Modification and Waiver. No modification or waiver of any of the provisions
of this Agreement, and no consent by any of the parties hereto to any departure therefrom
by any other party hereto, shall be effective unless such modification or wavier shall be in
writing and signed by the party to be bound, and the same shall then be effective only for
the period and on the conditions and for the speci'fic instances and purposes speci'fied in
such writing.
20
Miscellaneous.
20.1 Audits. The books, records, documents, and accounting practices and
procedures of Pepsi relevant to this Agreement shall be subject, at all reasonable times,
to examination by the University and the Minnesota Legislative Auditor.
•
20.2 Minnesota pata Practices Act. Pepsi agrees to comply with the terms of the
Minnesota Data Practices Act, Minnesota Statutes, Chapter 13, as it applies to all data
created, gathered, generated or acquired in accordance with this Agreement.
20.3 Affirmatiye Action.
Pepsi certifies that it has received a certificate of
compliance from the Commissioner of Human Rights pursuant to Minnesota Statutes,
Section 363.073. It is hereby agreed between the parties that Minnesota Statutes, Section
363.073 is incorporated into this Agreement by reference.
20.4 Anti-Trust. Pepsi hereby assigns to the State of Minnesota any and all
claims for overcharges as to goods and/or services provided in connection with this
Agreement resulting from anti-trust violations which arise under the anti-trust laws of the
United States and the anti-trust laws of the State of Minnesota.
20.5 Authorized Representative. The University's authorized representative for
administration of this Agreement is H. Dean Trauger, Vice President of Finance and
Administration, or his designee or successor.
20.6 Costs. Any costs incurred by Pepsi in providing any and all financial and
accounting information to University or the Minnesota Legislative Auditor shall be borne by
University.
•
20.7 Compliance With Laws. Pepsi shall comply in every respect with applicable
laws of the State of Minnesota, including, but not limited to, the laws respecting equal
opportunity in employment.
20.8 Choice of Law. This Agreement, and all instruments delivered pursuant
hereto and incorporated herein, shall be governed by the laws of the State of Minnesota.
17
•
20.9 Captions. The captions of the various paragraphs of this Agreement have
been inserted for the purpose of convenience of reference only, and such captions are not
a part of this Agreement and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Agreement.
20.10 Counterparts. This Agreement may be executed by the parties hereto
individually or in any combination, in one or more counterparts, each of which shall be an
original and all of which shall together constitute one and the same Agreement.
20.11 Severability. If any provision of this Agreement, or of any of the documents
or instruments delivered pursuant hereto, or any portion of any provision hereof or thereof,
shall be deemed invalid or unenforceable pursuant to a final determination of any court of
competent jurisdiction, or as a result of future legislative action, such determination or
action shall be construed so as not affect the validity or enforceability hereof or thereof,
and shall not affect the validity or effect of any other portion hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Exclusive Beverage
Agreement, effective as of the date first above written.
•
Pepsi:
University:
PEPSI-COLA OF MANKATO, INC.
By:~/)(yJ
David Mead
Title: General Manager
Date: I:J -1"1-- 7R"
Foundation:
MINNESOTA STATE UNIVERSITY,
::NKA~~
~N:Sr?
Title: t7&)lI~
Date: /.).. 18
•
APPROVED FOR FORM AND EXECUTION:
18
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FIRST AMENDMENT TO
EXCLUSIVE BEVERAGE AGREEMENT
,
.
This Agreement is entered into this ~
l-h..day of l\41..l-~~
1999, by and among
Mmnesota State Colleges and Universities on behalf of Minnesota State University, Mankato (the
"University"); Minnesota State University, Mankato Foundation, Inc., a Minnesota non-profit
corporation (the "Foundation"); and Pepsi-Cola of Mankato, Inc., a Minnesota corporation, 1970
James Drive, North Mankato, Minnesota, 56003 ("Pepsi"),
Recitals
•
A.
On December 18, 1998 the University, Foundation and Pepsi entered into an
agreement regarding beverage on the campus of the University (the "Exclusive
Beverage Agreement").
B.
The Exclusive Beverage Agreement has a term that terminates at midnight on
December 31, 2009.
C.
Pepsi has agreed to provide the University and the Foundation with additional
consideration in exchange for which the parties have agreed to extend the tenn of the
Exclusive Beverage Agreement until midnight on December 31, 2010.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein the parties agree as follows:
1.
•
Article 2 of the Exclusive Beverage Agreement shall be amended in its entirety to
read as follows:
"2
Term and Effective Date of this Agreement, Except as specified
immediately hereinafter, the term of this Agreement shall be for a period of eleven
(11) years, commencing on January 1, 2000 and terminating at midnight on
December 31, 2010 (the "Tenn"). The effective date of this Agreement shall be
January 1, 2000, with the exception that the following payments or obligations shall
be due prior to said date: the first two contributions to the Taylor Center, the
contribution to the Andreas Theater, the Internship Program, Can Panels and
Packaging Promotions, Vending Promotions, Radio Advertising, Soft Drink Pricing,
the providing of Fountain Products, and the Exclusive Vending Agreement for
Residence Halls (as set out at paragraph 4.3), the exact tenns of which are described
more specifically hereinafter."
.
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2.
Article 3.1 of the Exclusive Beverage Agreement shall be amended in its entirety to
read as follows:
"3.1
Cash ponations. Pepsi agrees to pay Foundation (as specified hereinafter) the
following cash donations:
(a)
To the Foundation for construction of the Taylor Center, the
donations as set out on EXHIBIT 3, which is attached hereto and made a part
hereof by reference, in the total amount of Two Million Two Hundred Fifty
Thousand Dollars ($2,250,000.00).
(b)
An unrestricted donation to the Foundation for the Andreas Theater
in the total amount of Two Hundred Fifty Thousand Dollars ($250,000.00).
The donation shall be made as follows: Twenty-five Thousand Dollars
($25,000.00) within thirty (30) days of the signing of the Agreement; One
Hundred Thirteen Thousand Dollars ($113,000.00) on September 1, 2001;
and One Hundred Twelve Thousand Dollars ($112,000.00) on September 1,
2002.
•
•
(c)
An unrestricted annual donation of Ten Thousand Dollars
($10,000.00) to the Foundation's Presidential Scholarships, and a Ten
Thousand Dollar ($10,000.00) annual unrestricted donation to the
Foundation's Talent Grants. The first such payment due hereunder shall be
due on January 1, 2000, shall be in the amount of Ten Thousand Dollars
($10,000.00), and shall be divided equally between the Presidential
Scholarships and Talent Grants. The second such installment shall be due on
August 1, 2000, in the amount of Ten Thousand Dollars ($10,000.00) and
shall be divided equally between the Presidential Scholarships and Talent
Grants. Contributions in the same amounts and on the same dates will be
made on each of the remaining ten (10) years ofthe Term of this Agreement.
The Foundation shall have the sole authority and discretion to determine who
are the appropriate recipients of these respective scholarships and grants.
(d)
Pepsi shall become a co-sponsor of the Cub Foods Maverick Fever
Promotion, and shall contribute to the Foundation, for the use of the
University's Athletic Department, the sum of Fifteen Thousand Dollars
($15,000.00) annually for said promotion. The first such payment shall be
due on October 1st, 2000, with ten (10) succeeding annual payments, also in
the amount of Fifteen Thousand Dollars ($15,000.00) each, to be made on
October 1st ofeach year thereafter during the Term of this Agreement. In the
event the Cub Foods Maverick Fever Promotion ceases to exist, these annual
contributions shall be made to the Foundation, for the use of a University
Athletic Program mutually agreeable to University and Pepsi.
-2­
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.,
•
(e)
Pepsi shall become a sponsor of the University's Hall of Fame
Banquet, and shall make an annual unrestricted donation to the Foundation
for said Hall of Fame Banquet in the amount of Five Thousand Dollars
($5,000.00). The first such donation shall be due on September 1, 2000, with
succeeding annual payments, in a similar amount, to be made on September
1st of each year during the Term of this Agreement.
(f)
Pepsi shall make annual unrestricted donations in the amount of Five
Thousand Dollars ($5,000.00) to the Foundation. The first such annual
contribution shall be made on December 1, 2000, with succeeding annual
payments, in similar amounts, to be made on December 1st of each year
during the Term of this Agreement.
(g)
Pepsi shall make an annual unrestricted donation of One Thousand
Dollars ($1,000.00) to the Foundation, for the use of the University's
Department of Theater Arts. The first such annual contribution shall be made
on August 1, 2000, with succeeding annual payments in similar amounts to
be made on August 1st of each year during the Term of this Agreement.
(h)
Pepsi shall make an annual unrestricted contribution of One Thousand
Dollars ($1,000.00) to the Foundation, for the use of the University's
Department of Music. The first such annual contribution shall be made on
August 1, 2000, with succeeding payments in similar amounts to be made on
August 1st of each year during the Term of this Agreement."
•
3.
It is further agreed that all the provisions, conditions and covenants of the Exclusive
Beverage Agreement shall remain in full force and effect, except as herein modified.
The Exclusive Beverage Agreement is hereby deemed amended to reflect the changes
set forth in Articles 1 and 2 of this Agreement. No other amendments are made to
the Exclusive Beverage Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective as of
the date first above written.
•
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Pepsi:
University:
PEPSI-COLA OF MANKATO, INC.
MINNESOTA STATE COLLEGES AND
UNIVERSITIES
MINNESOTA STATE UNIVERSITY,
MANKATO
BY:~~
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David Mead
Title: Gen,al Manager
Date:
Title: presi~t
Date:
i'/cZL
,1' 9f
8-;14- /91
Foundation:
MINNESOTA STATE UNIVERSITY,
MANKATO FOUNDATION, INC.
By:A-L1l2~""",*J
•
Dale A. Johnson
Title: PreSidenj
Date:
1/15,
APPROVED FOR FORM AND EXECUTION:
By:
•
-4­
91
•
SECOND AMENDMENT TO
EXCLUSIVE BEVERAGE AGREEMENT
This Second Amendment to Exclusive Beverage Agreement ("Second Amendment") is
entered into this _ _ day of
, 2000, by and among Minnesota State Colleges
and Universities on behalf of Minnesota State University, Mankato (the "University"); Minnesota
State University, Mankato Foundation, Inc., a Minnesota non-profit corporation (the "Foundation");
and Pepsi-Cola of Mankato, Inc., a Minnesota corporation, 1970 James Drive, North Mankato,
Minnesota 56003 ("Pepsi").
Recitals
•
A.
On December 18, 1998, the University, Foundation and Pepsi entered into an agreement
regarding beverages on the campus ofthe University (the "Exclusive Beverage Agreement").
B.
On August 21, 1999, the University, Foundation and Pepsi entered into a First Amendment
to Exclusive Beverage Agreement (the "First Amendment").
C.
Pepsi has agreed to provide the University and the Foundation with additional consideration
in exchange for which the parties have agreed, among other things, to extend the term of the
Exclusive Beverage Agreement until midnight on December 31,2013.
Terms
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
1.
Article 2. of the Exclusive Beverage Agreement (and any amendments thereto as a
result ofthe First Amendment) is hereby amended, in part, to state that the termination date for the
Exclusive Beverage Agreement shall be extended from December 31, 2010 to December 31, 2013.
2.
Article 3.1 (a) of the Exclusive Beverage Agreement (and any amendments thereto
as a result of the First Amendment) is hereby amended in its entirety to read as follows:
•
(a) To the Foundation for construction of the Taylor Center, the donations
as set out on EXHIBIT 3, which is attached hereto and made a part hereofby
reference, in the total amount ofTwo Million Seven Hundred Fifty Thousand
Dollars ($2,750,000.00). The parties hereto agree that EXHIBIT 3, which is
the list of Taylor Center donations, setting forth the dates and amounts of
payments, is hereby amended to reflect the Five Hundred Thousand Dollars
($500,000.00) additional cash donation to be made by Pepsi to the
Foundation.
3.
The next to the last sentence ofArticle 3.1 (c) of the Exclusive Beverage Agreement
(and any amendments thereto as a result of the First Amendment) is hereby amended in its entirety
to read as follows:
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"Contributions in the same amounts and on the same dates will be made
during each year of the Tenn of this Agreement."
4.
The second sentence ofArticle 3.1 (d) ofthe Exclusive Beverage Agreement (and any
amendments thereto as a result of the First Amendment) is hereby amended in its entirety to read
as follows:
"The first such payment shall be due on October 1, 2000, with succeeding
annual payments, also in the amount of Fifteen Thousand Dollars
($15,000.00) each, to be made on October 1st of each year thereafter during
the Tenn of this Agreement."
5.
Except as amended pursuant to the terms of the First Amendment and this Second
Amendment, all of the remaining provisions, conditions and covenants of the Exclusive Beverage
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment,
effective as of the date first above written.
•
Pepsi:
University:
PEPSI-COLA OF MANKATO, INC.
MINNESOTA STATE COLLEGES AND
UNIVERSITIES
MANKAT
NKATO
By:d)~~
David Mead
Title: Genera Manager
t.1v
Date: ~ I
Foundation:
MINNESOTA STATE UNIVERSITY,
:;~~~
~Sc
'z
Title: P sident
Date: ? G OR'
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APPROVED FOR FORM AND EXECUTION:
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By:
Titre:
Date:
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~ Mankato
EXHIBIT3
~'~~~ST.~:ATB~UNI~~~HR~SlTY~· L~~Am~en~d~e~d A~U~.gust;;;2fX);O~;;;;;;;~~~~~~_
I
LIST OF TAYLOR CENTER DONATIONS
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Within 30 days of contract signing
September 1, 1999
September 1, 2000
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Septembe r 1, 2001
September 1, 2002
I
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September I, 2003
I
[>
Septembe r 1,
September 1,
September 1,
September 1,
September 1,
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t>
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September 1, 2009
Septembe r 1, 2010
I
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September 1, 2011
Septembe r 1, ~012
September 1, 2013
Total Contributions
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2004
2005
2006
2007
2008
$
250,000
500,000
250/000
140,000
140,000
215,000
215,000
190,000
190,000
190,000
190,000
180r OOO
35,000
35,000
30,000
$ 2,750/000
THIRD AMENDMENT TO
EXCLUSIVE BEVERGE AGREEMENT
This Third Amendment to Exclusive Beverage Agreement ("Third Amendment") is entered
into this 1st day of January, 2005, by and among Minnesota State Colleges and Universities on
behalf of Minnesota State University, Mankato ("University"); Minnesota State University, Mankato
Foundation, Inc., a Minnesota non-profit corporation ("Foundation"); and Pepsi-Cola of Mankato,
Inc., a Minnesota corporation, 1970 James Drive, North Mankato, Minnesota 56003 ("Pepsi").
Recitals
A. On December 18,1998, the University, Foundation and Pepsi entered into an agreement
regarding beverages on the campus of the University (the "Exclusive Beverage Agreement").
B. On August 21, 1999, the University, Foundation and Pepsi entered into a First Amendment to
Exclusive Beverage Agreement ("First Amendment")
C. On August 14, 2000, The University, Foundation and Pepsi entered into a Second Amendment to
Exclusive Beverage Agreement ("Second Amendment").
D. Pepsi has agreed to pay Minnesota State University, Mankato, a 20% commission based on
actual revenue from the Pepsi machines in all residence halls plus MavCard sales.
Terms
The following articles are hereby amended, in their entirety, to read as follows:
1.
-.
Article 4 - Beverage Vending. Except for Services for the Blind, University grants Pepsi an
exclusive license and right to install, operate, supply and service automatic soft drink and new
age product vending machines on the Campus. Pursuant to this grant of license, University
shall require its vendors to purchase directly from Pepsi, at the prices provided herein, the
supplies of beverages for all vending machines on Campus, whether said vending machines are
owned by Pepsi or another individual or entity. Throughout the Term, University shall not
grant any other person or entity the right or license to install or operate any piece of vending
equipment on the Campus which offers or sells any beverage product that is competitive with
the Beverage Lines or Beverage Products offered or sold by Pepsi. It is understood and agreed
to by the parties herein, that as to all vending machines on Campus, at least eighty percent
(80%) of the selection in said vending machines shall consist of 20 ounce bottles and up to
twenty percent (20%) of the selection shall consist of cans.
Article 4.3 - Commission. Pepsi shall pay University a commission equal to twenty percent
(20%) of all vending machine gross sales (less sales tax) that take place in the University's
residence halls and shall apply to any and all sales that occur as of January 1, 1999, and
subsequent thereto, during the Term of this Agreement.
1
Article 4.4 Accounting.
(c) Pepsi shall be required to report to the University's Business Affairs Office by the
tenth (10 th) day of each month, during the Term of this Agreement. Vending machines
sales activity for machines located within the residence hall complexes shall be tracked by
individual machine with the commission determined by revenue collected in the machine
plus MavCard sales, less sales tax, multiplied by the 20% commission. Pepsi shall report to
the University on a form acceptable to the University Payment of the commission shall be
due at the same time as the report specified herein, said payment being the previous
month's sales.
.....
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IN WITNESS WHEREOF, the parties hereto have caused this addendum to be duly executed by
their duly authorized officers, intending to be bound thereby.
University:
Pepsi:
PEPSI-COLA OF MANKATO, INC.
:?
By:
Title:
!+'/.IQ...),,-I(I,~~/{)_2,--
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vS~'W'·
Title: _--=G=e~n~e~ral~M~an=a:l;:>.ge"""r,---_ _
President
----"'-===------­
Date:
/1
_
Date:
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MINNESOTA STATE UNIVERSITY,
MANKATO FOUNDATION, INC.
By:
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Title:
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President
Date:
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APPRO\TEf FOR FORM AND EXECUTION
By:
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Rosemary Kin e
Title:
Date:
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Budget Officer
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FOURTH AMENDMENT TO
-·~:t:XCLUSIVE
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BEVERGE AGREEMENT
This Fourth Amendment to Exclusive Beverage Agreement ("Third Amendment") is entered
into between Minnesota State Colleges and Universities on behalf of Minnesota State University,
Mankato ("University"); Minnesota State University, Mankato Foundation, Inc., a Minnesota nonprofit corporation ("Foundation"); and Pepsi-Cola of Mankato, Inc., a Minnesota corporation, 1970
James Drive, North Mankato, Minnesota 56003 ("Pepsi").
Recitals
A. On December 18, 1998, the University, Foundation and Pepsi entered into an agreement
regarding beverages on the campus ofthe University (the "Exclusive Beverage Agreement").
B. On August 21, 1999, the University, Foundation and Pepsi entered into a First Amendment to
Exclusive Beverage Agreement ("First Amendment")
C. On August 14, 2000, The University, Foundation and Pepsi entered into a Second Amendment to
Exclusive Beverage Agreement ("Second Amendment").
D. On January 26, 2005, the University, Foundation and Pepsi entered into a Third Amendment to
Exclusive Beverage Agreement ("Third Amendment").
E. University, Foundation and Pepsi would like to extend the Term of the Exclusive Beverage
Agreement.
NOW, THEREFORE, in consideration ofthe mutual promises and covenants contained
herein, the parties hereto agree as follows:
Terms
1. Article 2. of the Exclusive Beverage Agreement (and any amendments thereto) is hereby
amended, in part, to state that the termination date for the Exclusive Beverage Agreement shall be
extended from December 31,2013, to June 30,2014.
1
IN WITNESS WHEREOF, the parties hereto have caused this addendum to be duly executed by
their duly authorized officers, intending to be bound thereby.
University:
Pepsi:
PEPSI-COLA OF MANKATO, INC.
By:~LQ,~
Title:1)1~a~~~j
Title: ---~P-;rpes=id,e=nt.:...__ _ __
Date:
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Date:
MINNESOTA STATE UNIVERSITY,
MANKATO FOUNDATION, INC.
By:
d[:::f2 M_)
Title: ---~P~re=s=id=e=nt'-------
!2"'S"-t3
Date: -~L---------APPROVED FOR FORM AND EXECUTION
By:
~
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Vickie Han on
Title: --=O=ffi=Ic=e...!..A=d=m=in=i=st=ra=to=r_ __
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Date: _ _
2
12-j z./1 3

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