Exhibit 10.4
LOCATION AGREEMENT
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This Agreement is made as of December 13, 1996 by and between Ralph's
Grocery Company, a California corporation ("Account"), and GW Services, Inc., a
California corporation ("Glacier"). This Agreement constitutes the entire
agreement between the parties with regard to the subject matter hereof. The
Agreement supersedes and cancels the Agreement between Food-4-Less Supermarkets,
Inc. and Glacier dated November 11, 1994.
Glacier is the owner of vended self-serve water dispensing machines, both
coin operated and non-coin operated ("Machines"), and desires to place its
machines at all supermarket location now or hereafter owned or leased by Account
(the "Locations"), including without limitation all Locations operating under
the "Ralph's", "Food-4-Less", "Cala Foods", "Xxxx Markets" or "Foods Co" names,
in order to sell processed water to the public.
Account is agreeable to permitting the Machines to be placed at the
Locations on terms and conditions set forth below:
1. Term. This Agreement shall commence December 13, 1996, and shall
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remain in effect for a period of 60 months after all of the Machines have been
installed at the Locations listed on Schedule A (the "Initial Term"). After the
Initial Term, this Agreement shall automatically renew for successive one-year
terms unless it is canceled by either party upon 60 days' written notice prior
to the commencement of any such one-year term. Glacier will send to Account a
reminder of impending termination date between 60 and 90 days prior to the end
of this Agreement.
2. Placement of Machines. Account grants Glacier the exclusive right to
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place Machines at such places as Glacier and Account shall mutually determine
inside and/or outside the supermarket buildings located at all existing
Locations owned or leased by Account, including but not limited to those
Locations listed on Schedule A, and at any additional locations not previously
listed on Schedule A owned or leased by Account during the term of the Agreement
(a "New Location"). On or prior to the operation of any New Location by the
Company, Account shall provide Glacier with written notice of the New Location,
and the New Location shall be added to Schedule A. During the term of this
Agreement, Account shall not authorize or permit the placement of any other
water vending device inside or outside of any existing or New Location without
obtaining the prior written consent of Glacier. If a new Location is acquired or
operated after the date of this Agreement and Account reasonably determines that
because of the format of such store that it does not desire to supply the new
Location with machines under this Agreement, such new Location shall not be
subject to this Agreement.
3. Costs.
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(a) Account's Costs. Account shall incur the costs of providing
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electrical current and city tap water necessary for the operation of the
Machines.
(b) Glacier's Costs. Glacier shall incur the costs of water, electrical
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and drain connection improvements necessary for the operation of the Machines.
Glacier shall secure and pay all permits, licenses, regulatory fees and
inspections necessary for the proper maintenance of chemicals and equipment in
connection
with the operation of the Machines. Glacier shall incur the costs of the removal
of its Machines from any Location and shall repair any damage caused by such
removal.
4. Collection of Sales. Glacier shall be responsible for collecting sales
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from coin operated Machines at each of the Locations. Account shall be
responsible for collecting sales from non-coin operated Machines at each of the
Locations.
5. Commissions.
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(a) Amount. Glacier agrees to pay Account a commission (the "Commission")
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with respect to each Location in an amount equal to fifty-three
percent (53%), multiplied by each month's sales from the Machines at
such Locations, less taxes, fees (including without limitation
permits, licenses, regulatory fees and inspections), and losses due
to vandalism and theft relating to the operation of the Machines.
(b) Payment. On or before the first day of each month during the term of
this Agreement:
(i) with respect to Locations where only coin operated Machines are
located, Glacier Shall pay Account estimated Commissions based upon
estimated sales for such month,
(ii) with respect to Locations where only non-coin operated Machines are
located, Account shall pay Glacier the amount by which estimated
sales to be collected by Account for such month exceed estimated
Commissions for such month, and
(iii) with respect to Locations where both coin operated and non-coin
operated Machines are located, (A) if estimated Commissions based
upon estimated sales for the month exceed the amount of estimated
sales to be collected by Account for such month, Glacier shall pay
Account the net difference or (B) if estimated sales to be
collected by Account for the such month exceed estimated
Commissions for such month, Account shall pay Glacier the net
difference.
Payments for any subsequent month shall be adjusted by an amount equal to the
difference between the estimated Commission paid for any previous month and the
actual Commission for such month.
(c) Accounting. Glacier shall provide Account with a monthly accounting
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of financial data on each Machine relating to the collection of sales
and calculation of Commissions.
6. Compensation and Marketing Allowances.
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[Confidential information has been omitted from this section. The information
that has been omitted has been filed with the Securities and Exchange
Commission.]
(a) Compensation Allowance. Upon the execution of this Agreement, Glacier
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agrees to pay Account a nonrefundable Compensation Allowance of
_________________________________________ for such expenses as have
been incurred to do feasibility studies, market research, financial
analysis, stock surveys, set up and other activities.
(b) Marketing Allowance. Upon the execution of this Agreement, Glacier
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agrees to pay Account a pre-paid Marketing Allowance of_____________
(b) (c) Should this contract be terminated for any reason during the
first seventeen (17) months of the initial term, Account shall pay
Glacier _______________________. If Glacier is unable to operate its
Machine(s) at any of the original ___ Locations during the remaining
term of forty-three (43) months , Glacier shall be entitled to
receive a refund (a "Refund") with respect to such Location in an
amount equal to
______________________ multiplied by the number of months remaining
on this contract; provided, however, that Glacier shall not be
entitled to a Refund if Glacier's inability to operate its
Machines(s) at such Location arises primarily from breach of
Glacier's obligations hereunder.
(d) Additional Marketing Allowance. So long as Glacier has installed and
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continues to operate Machines at not less than ___ Locations, Glacier
shall pay Account an additional marketing allowance ("Additional
Marketing Allowance") equal to ______________ multiplied by the
number of months remaining until the expiration of the Initial Term
on the date one or more Machines are initially installed at any New
Location. The Additional Marketing Allowance shall be paid on or
prior to the date of such initial installation. If Glacier is unable
to operate its Machine(s) at any new Location during the Initial
Term, Glacier shall be entitled to receive a refund (a "Refund") with
respect to such Location in an amount equal to ____________________
multiplied by the number of months remaining until the expiration of
the Initial Term on the date Glacier first becomes unable to operate
its Machine(s) at such Location; provided, however, that Glacier
shall not be entitled to a Refund if Glacier's inability to operate
its Machine(s) at such Location arises primarily from breach of
Glacier's obligations hereunder.
7. Pricing. Glacier shall advise and consult with Account prior to
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determining the vend price for water at any Location, taking into consideration
the area and the competitive market.
8. Maintenance of Machines; Compliance with Laws.
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(a) Glacier shall maintain its Machines in good condition and repair.
Account shall promptly report to Glacier the theft or, damage to, or
malfunction of any Machine.
(b) Each party warrants and represents that it shall in every manner of
its business related to this agreement obey and conform to all valid
federal, state and local laws, regulations and directives. Any breach
of said warranty and representation or claim of breach shall be the
sole responsibility of the breaching party and the breaching party
will, for said breach or claim of breach, hold the other party
completely safe and harmless.
9. Insurance. Glacier shall at all times carry adequate insurance to
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cover the products, equipment and materials supplied, used or consumed in
connection with the operation of the Machines, including without limitation, the
insurance described in Exhibit B.
10. No Conflicts. Account represents and warrants to Glacier that at all
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times during the term of this Agreement, (i) the transactions contemplated by
this Agreement and the performance of the terms and provisions of this Agreement
will not contravene, conflict with or result in any breach of, or constitute a
default under, any agreement or instrument to which Account is a party or by
which Account or any of its properties is bound and (ii) Account is not and will
not become a party to any other agreement with respect to the products and
services of the type covered by this Agreement. If a store is acquired in any
manner after the date hereof and is subject to a supply agreement for products
similar to products to be provided under this agreement, then such acquired
store shall become subject to this agreement only upon the expiration of such
other supply agreement.
11. Indemnification.
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(a) Indemnification of Account. Glacier shall indemnify and hold
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harmless Account and its directors, officers, parent corporations,
sister corporations, subsidiaries, assigns, liability, damage, injury
to property or person, death or expense (including reasonable
attorney's fees and expenses) which directly or indirectly arise from
Glacier's products, services, actions or omissions, including without
limitation, any action or claim brought by Glacier's employees,
agents and representatives, pertaining to or arising out of Glacier's
performance under this Agreement at any Location or otherwise or
alleging design, manufacture, marketing or distribution or a
defective product or product liability matter; provided, however,
that Glacier shall not be liable to Account for any claim,
litigation, judgment, loss, liability, damage, injury to property or
person, death or expense arising from or based upon the negligence of
Account.
(b) Indemnification of Glacier. Account shall indemnify and hold harmless
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Glacier and its directors, officers, parent corporations, sister
corporations, subsidiaries, assigns, agents and employees from any
claim, litigation, judgment, loss, liability, damage, injury to
property or person, death or expense (including reasonable attorneys'
fees and expenses) which directly or indirectly arise from Account's
actions or omissions, including without limitation any action or
claim brought by Account's employees, agents and representatives,
pertaining to or arising out of Account's performance under this
Agreement or arising out of or based upon the breach of any
representation or warranty of Account contained in this Agreement'
provided, however, that Account shall not be liable to Glacier for
any claim, litigation, judgment, loss, liability, damage, injury to
property or person, death or expense arising from or based upon the
negligence of Glacier.
12. Termination.
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(a) Material Breach. This Agreement only may be terminated by a party, in
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the event of a material breach hereof by the non-terminating party
that is not cured within twenty days (excluding Saturdays, Sundays
and any days on which banks located in the State of California are
authorized or obligated to close) following written notice thereof by
the terminating party. Upon any termination of this Agreement by
Glacier in the event of a material breach hereof by Account, Glacier
shall be entitled to receive a Refund (calculated in accordance with
Section 6(c) above) with respect to each Location. The obligation of
Account to pay the Refund shall be unconditional, in addition to any
liability Account may otherwise have to Glacier and may not be offset
against any liability Glacier may have to Account.
13. Use, Control and Ownership. Glacier acknowledges that this Agreement
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constitutes only a license to use a portion of the property at each
Location and shall not be construed as a lease, easement or any other
interest in real property. Subject to Section 6(b), Account shall at
all times retain the right to temporarily or permanently discontinue
its supermarket operations at any Location. Account acknowledges that
the Machines shall at all times remain the sole property of Glacier.
Glacier shall have the right to remove Machines from any Location if,
in Glacier's sole discretion, such Machines are not sufficiently
profitable to merit continued operation at such Location.
14. Entry; Cooperation.
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(a) Maintenance. Account shall allow Glacier's agents, contractors and
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employees to enter each Location for the purpose of maintaining and
servicing the Machines during regular business hours.
(b) Promotional Activities. Account shall cooperate with Glacier in
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promoting Glacier's products and services and shall not interfere
with sales from or discourage the use of the Machines by any means
whatsoever. Without limiting the foregoing, Account shall permit
Glacier and its authorized agents and representatives to demonstrate
Glacier's products and conduct other promotional activities or point
of purchase programs at the Locations as Glacier shall deem
appropriate, at no cost to Glacier.
15. Assignment. This Agreement shall be binding upon the parties hereto,
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as well as their respective legal representatives, successors and assigns. No
assignment of this Agreement by Account shall be effective without the prior
written consent of Glacier. Any assignment of this Agreement by Account in
contravention of this Agreement shall constitute a material breach hereof by
Account.
16. Confidentiality. Glacier and Account shall keep the terms and
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conditions of this Agreement strictly confidential, except as otherwise required
by law, including the filing of this Agreement with any governmental agency
pursuant to public reporting requirements.
17. Governing Law. This Agreement shall be governed by the laws of the
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State of California.
18. Independent Contractor. Nothing in this Agreement shall be construed
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as creating a joint venture or partnership between Account and Glacier. Account
and Glacier agree that Glacier is an independent contractor and not an employee,
agent or representative of Account.
19. Notices. Any notice which one party desires to give the other shall
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be in writing and shall be wither delivered personally or sent by United States
mail, postage prepaid, certified, return receipt requested to the current
address of each party:
If to Account: Ralphs Grocery Company
0000 X. Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn: Legal Department
If to Glacier: Glacier Water Services, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
20. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
This Agreement is signed this 13th day of December, 1996.
Ralphs Grocery Company
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Senior Vice President, Marketing
Cala Co.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Senior Vice President, Marketing
GW Services, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President, Chief Operating Officer
EXHIBIT A
LOCATIONS
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[Confidential information has been omitted from this section. The information
that has been omitted has been filed with the Securities and Exchange
Commission.]
EXHIBIT B
INSURANCE REQUIREMENTS
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1. Glacier shall provide evidence of Public Liability and Broad Form Property
Damage Insurance. The limits of said coverage shall be not less than
$1,000,000 Combined Single Limit for Bodily Injury, Death and/or Property
Damage.
2. Glacier shall provide evidence of Automobile Bodily Injury and Property
Damage Insurance covering all vehicles moving under their own power and
engaged in the work under contract. Coverage shall be no less than
$1,000,000 Combined Single Limit for Bodily Injury, Death and/or Property
Damage.
3. Glacier shall provide evidence of Workers' Compensation Insurance on its and
subcontractor's employees in accordance with applicable law.
4. Seller shall submit to Account evidence of the above required insurance which
shall contain certification by the insurance companies that such insurance
shall not be canceled or materially changed without at least thirty (30) days
prior notification to Account.
5. All insurance must be placed with the company rated by "Best" and have a
"Best" rating of at least B+,VII
AMENDMENT NO. 1 TO LOCATION AGREEMENT
The Location Agreement ("Agreement"). Made as of the 13th day of December, 1996,
in Los Angeles County, California, by and between GW Services, Inc., a
California corporation (hereinafter referred to as "Glacier") and Ralphs Grocery
Company, a Delaware corporation (hereinafter referred to as "Account") shall be
amended as follows:
1. In the first paragraph, the first and second lines shall be deleted and in
their place shall be:
"This Agreement is made as of December 13, 1996 by and between Ralphs
Grocery Company, a Delaware corporation ("Account") and GW Services, Inc.,
a California..."
2. In the first paragraph, Account shall include the following:
"Cala Co., a Delaware corporation."
3. The second paragraph shall have the third, fourth and fifth lines deleted
and in their place shall be:
"...locations now or hereafter owned or leased by Account (the "Locations"),
including without limitation all Locations operating under the "Ralphs",
"Food 4 Less", "Cala Foods", "Xxxx Markets", or "Foods Co." names by Account
or its subsidiaries in order to sell processed water to the public."
4. Xxxxxxxxx 0, Xxxx, shall have the first, second and third lines deleted and
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in their place shall be:
Term. This Agreement shall commence on the day, month and year first
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hereinabove written and shall continue for a period of sixty (60) months
(the "Initial Term"). After the Initial Term, this Agreement shall..."
5. Xxxxxxxxx 0, Xxxx, shall have the sixth and seventh lines deleted and in
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their place shall be:
"...Account a reminder of impending termination date between 80 and 90 days
prior to the end of this Agreement; failure of Glacier to send such reminder
notice will relieve Account of its obligation to give 60 days notice so the
Account may the renewed Agreement at any time thereafter, at will and
without cause, upon sixty (60) days' written notice."
6. Paragraph 2, Placement of Machines, shall have the third line deleted and in
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its place shall be:
"...outside the supermarket buildings located at all existing Locations
owned or leased by Account, subject to any approvals required by the
landlord(s) of Account..."
7. Paragraph 2, Placement of Machines, shall have the eighth line deleted and
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in its place shall be:
"...Location shall be added to Schedule A. However the term for such
additions to Schedule A subsequent to execution hereof shall coincide with
the terms set forth in Paragraph 1 above. During the term of this Agreement,
Account shall not..."
8. Paragraph 2, Placement of Machines, shall have the twelfth line deleted and
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in its place shall be:
"...determines, in its sole discretion, that because of the format of such
store it does not desire to supply the new..."
9. Xxxxxxxxx 0, Xxxxxxxxxxx of Machines; Compliance with Laws, Subparagraph
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(a), shall have the second line deleted and in its place shall be:
"...shall endeavor to promptly report to Glacier the theft of, damage to, or
malfunction of any Machine."
10. Paragraph 10, No Conflicts, shall have the first line deleted and in its
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Place shall be:
"10. No Conflicts. Account state that at all times..."
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11. Paragraph 11, Indemnification, Subparagraph (b), Indemnification of Glacier,
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shall have the seventh and eighth lines deleted and in its place shall be:
"...arising out of Account's performance under the Agreement provided..."
12. Xxxxxxxxx 00, Xxxxxxxxxxx, shall have the following Subparagraph (a) added
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and the present Subparagraph (s) shall be renumbered Subparagraph (b):
"(a) Termination Provision. Should this Agreement terminate prior to the end
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of the term hereof, Account agrees to repay any unearned portion of the
Marketing Allowance received by Account in accordance with the provisions
of Section 6(c) and 6(d) of the Agreement, which payment shall be
Glacier's sole and exclusive remedy for such termination."
13. Xxxxxxxxx 00, Xxxxxxxxxxx, Xxxxxxxxxxxx (x) [originally Subparagraph (a)],
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Material Breach, shall have the fourth line deleted and in its place shall
have the fourth line deleted and in its place shall be:
"..authorized or obligated to close) following receipt of written notice
thereof by the terminating party, Upon..."
14. Xxxxxxxxx 00, Xxxxxxxxxxx, Xxxxxxxxxxxx (b), Material Breach, shall have the
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seventh, eighth and ninth lines deleted and in its place shall be:
"...with respect to each Location."
15. Paragraph 14, Entry; Cooperation, Subparagraph (b), Promotional Activities,
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shall have the sixth line deleted and in its place shall be:
"...appropriate, with the consent of Account, at no cost to Account."
16. Paragraph 15, Assignment, shall have the third line deleted and in its place
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shall be:
"15. Assignment. This Agreement shall be binding upon the parties hereto, as
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well as their respective legal representatives, successors and assigns. No
assignment of this Agreement by either party
shall be effective without the prior written consent of the other. Any
assignment of this Agreement in contravention of this Agreement shall
constitute a material breach hereof."
17. Force Maleure. Neither party shall be liable for delay or failure to
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perform in whole or part any of the promises or responsibilities of this
Agreement by reason of contingencies beyond it control, including lack or
failure of raw materials, labor disturbances (including strikes and
lockouts), xxxx, acts of God, hurricanes, fires, storms, accidents,
government regulation or interference of any other cause whatever beyond its
control.
18. Exhibit B, Insurance Requirements, shall have the first and second lines
deleted and in their place shall be:
19.
"5. Glacier shall submit to Account, before commencement of work, a
certificate of insurance evidencing the above-required insurance which shall
name Account as an additional insured and shall contain certification by the
insurance companies that such insurance shall not be canceled or
materially..."
20. All other terms and conditions of the Agreement by and between Glacier and
Account shall remain the same. In the event of any conflict in the language
of the Agreement and this Addendum relating to specific terms, conditions or
obligations dealt with herein between the parties, the language of this
Addendum shall supersede and shall prevail over those conflicting terms.
21. The Agreement (including this Addendum) may be amended only by a written
instrument signed by all parties hereto.
22. The effective date of this Addendum and the Agreement of which it is a part
shall be the same.
23. The Agreement with Addendum set forth the entire agreement between Glacier
and Account relating to the subject matter hereof. Neither party relies upon
any representation or warranty, express or implied, not expressly set forth
therein.
All of the terms and conditions of the location agreement and addendum are
hereby fully agreed to by the parties.
GW Services, Inc. Ralph's Grocery Company
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/s/ Xxxxx X. Xxxxxx /s/ Xxx Xxxxxx
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Xxxxx X. Xxxxxx, Xxx Xxxxxx,
President & COO Senior Vice President, Marketing
Cala Co.
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/s/ Xxx Xxxxxx
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Xxx Xxxxxx,
Senior Vice President, Marketing
