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HomeMy WebLinkAboutO-1525ORDINANCE NO. 1525 BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF FAIRHOPE, ALABAMA, AS FOLLOWS: SECTION 1. The City of Fairhope, Alabama, having received an application from Coca Cola Bottling Company Consolidated for a franchise agreement to operate Beverage Vending Machines at the following location described: in locations specified in Bid No. 002-15, Beverage Concession 2015, and it is to be in the best interest of the public and the City of Fairhope, Alabama, to grant a franchise to Coca Cola Bottling Company Consolidated under the terms and conditions of the franchise agreement attached hereto as "Exhibit A" including the fees that shall be paid to the City with respect to same. SECTION 2. Pursuant to the authority granted by Section 11-40-1 and 11-43-62 of the Code of Alabama of 1975, the Mayor of the City of Fairhope, Alabama, is hereby directed to execute said franchise agreement in the name of the City of Fairhope, Alabama. SECTION 3. This ordinance shall become effective immediately upon its adoption and publication as required by law. SECTION 4. The sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by a court of competent jurisdiction, then such ruling shall not affect any other paragraphs and sections, since the same would have been enacted by the municipality council without the incorporation of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5. This ordinance shall take effect immediately upon its due adoption and publication as required by law. ADOPTED THIS 12TH DAY OF JANUARY, 2015 ATTEST: Lisa anks, MMC City Clerk Exhibit FRANCHISE AGREEMENT (vending Machines This Agreement is made and entered into by and between the City of Fairhope, Alabama, a municipal corporation ("City") and Coca Cola Bottling Company Consolidated, ("Grantee"). RECITALS Grantee is a (sole proprietor, corporation, LLC) with a principal place of business at S3oo Cocw C`z\a Q—A_ Md�� . At . Grantee is engaged in the business to the public. Grantee proposes to install and operate vending machines in various locations on city property and in city building as more specifically designated on Exhibit "A" attached hereto and incorporated herein. Grantee requests that the City grant to Grantee a franchise to install, maintain and operate this business on public property at the above designated locations. In consideration of the mutual covenants, promises and conditions set forth herein the parties agree as follows: SECTION 1 Section 1.1 DEFINITIONS Unless otherwise specially provided, or unless clearly required by the context, the words and phrases defined in this section shall have the following meanings when used in this Resolution and Franchise Agreement: (1) MAYOR: Shall mean the Mayor of the City of Fairhope (2) COUNCIL: Shall mean the City Council of Fairhope, the governing body of City of Fairhope, Alabama. (3) CITY: Shall mean City of Fairhope, Alabama, which is governed by the Fairhope City Council. (4) FRANCHISE: Shall mean the franchise granted under the provisions of the Ala. Code §11-40-1, et seq., which authorizes municipalities to contract and to be contracted with. A "franchise" as used in this agreement is a special privilege not belonging to the citizens by common right but conferred by a municipality upon an individual or corporation. (5) GRANTEE: Shall mean Nu-' ­)6o •.S-. 0000�NS4 ��►���a. w to whom a franchi a has been granted by the City or Janyone who succeeds (� �,�, C`� �i �, �•�nor+ 1 C`�,.1�,— in accordance with the provisions of the franchise. (6) GROSS REVENUES: Shall mean all revenues received by the Grantee from or in connection with the operation of the franchise to provide products and/or services in the City of Fairhope pursuant to this franchise agreement. (7) PERSON: Shall mean an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. (8) SERVICE AREA: Shall mean the geographical area within City of Fairhope and specifically defined as follows: &S --Ac.V.� : r_> -1—� 0Qa - \S Section 1.2 REQUIREMENTS FOR FRANCHISE (a) No person shall engage in the construction, operation, or maintenance of a private business on public property in the City unless such person or the person for whom such action is being taken shall hold a valid franchise granted by the City. (b) Any franchise granted by the City pursuant to these rules and regulations shall not be deemed to be an exclusive right of permission. The City expressly reserves the right to grant similar nonexclusive franchises to other persons. (c) In the event the City enters into a franchise, permit, license, authorization, or other agreement of any kind with any other person or entity other than the Grantee to enter into the City's Public Rights -of -way or public property for the purpose of operating a private business on public property in any part of the City, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be; granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. (d) No franchise shall be granted by the City in the Central Business District located in downtown Fairhope, except a franchise may be granted in city buildings and on city property in the Central Business District. Section 1.3 TERM OF FRANCHISE, RENEWAL (a) The duration of this franchise agreement granted pursuant to this Resolution shall be for three years beginning on the date this Franchise Agreement is signed by both parties. Section 1.4 ENFORCEMENT OF FRANCHISE (a) A Grantee shall not be excused from complying with any of the terms or conditions of the franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. (b) Whenever the City shall set forth any time for any action to be performed by or on behalf of Grantee, said time shall be deemed of the essence and any failure of Grantee to perform with in the time allotted shall be sufficient grounds for the City to revoke the franchise. (c) A Grantee agrees by signing this agreement for a franchise that it will not assert, at any time, in any claim or proceeding that any condition or term of the franchise is unreasonable, arbitrary or void or that the City had no power or authority to make such term or conditions, but shall be required to accept the validity of the terms and conditions of the franchise in their entirety. Section 1.5 CONFLICT WITH LAWS (a) Whenever any law of the State of Alabama or of the United States, or of any agency of either, shall be in direct conflict with and supersede any provision of these rules and regulations, then for so long as such state or federal law or regulation shall be in force and effect, any affected provisions of this franchise granted hereunder shall be suspended and be of no force and effect and the Grantee shall not be required to comply with such provision; however, the validity of the remaining portions or provisions shall not be affected thereby. In the event this franchise imposes burdens different than those imposed by any other law, but within the power of the City to impose said burdens, the more restrictive provision shall apply. (b) If any section, sentence, clause or phrase of these rules and regulations or of any franchise granted hereunder is held unconstitutional or otherwise invalid, such infirmity shall not affect the validity of the remaining portion of these rules and regulations or a of any franchise granted hereunder. SECTION 2 Section 2.1 PROCEDURE FOR GRANTING FRANCHISE (a) Any person or entity desiring a franchise shall pay a nonrefundable application fee of $150.00 by cashier's check, certified check or money order payable to City of Fairhope. This is a separate fee from the Franchise fee. (b) The Franchisee shall contain a statement under oath that Franchisee will comply with all legal, financial and technical provisions of these rules and regulations and any other municipal, state or federal regulatory agencies. SECTION 3 Section 3.1 CONSTRUCTION AND INSTALLATION (a) After receipt of an initial franchise, a Grantee shall proceed with due diligence to install and begin operation of the franchise. (b) Failure on the part of the Grantee to commence and diligently pursue �:, or failure to commence operation after 90 days from the commencement of is agreement shall be grounds for termination of the franchise. The City may extend the time for the commencement and completion of 6� A- Oo a - \S for additional periods in the event the Grantee, acting in good faith, experiences delays by reasons of circumstances beyond her control. c (c) The \(&.N �w� `\Aac,�n•Nshall be constructed and operated in accordance with all adopted City, state and national construction and electrical codes. Section 3.2 CONDITIONS FOR USE OF PUBLIC PROPERTY (a) Grantee shall not install or begin operation of the franchise business until the installation has been approved by the Mayor or his designee. Section 3.3 OPERATION AND MAINTENANCE (a) The Grantee shall install and maintain _Vt u �+:�� �� in a prudent and reasonable manner. (b) Failures or malfunctions of the VV r,r \r,. , S shall be corrected by the Grantee promptly after notice of such fail re or malfunction except or unless such failure or malfunction shall have been caused by storm, fire, lightening, explosion, civil unrest or other similar catastrophe. (c) The City shall, if it deems it necessarx, have the right and privilege to inspect the installation, operation and maintenance of the n► �vAeslk�t� by the Grantee in order to satisfy itself as to the proper performance of the terms of this franchise agreement. SECTION 4 Section 4.1 FRANCHISE FEE (a) There shall be a franchise fee of twenty (20) percent of Gross Revenues; and the fee for the business license which is an annual license issued by the municipality for the privilege of doing any kind of business, trade, profession or other activity in the municipality, by whatever name called. (b) Grantee shall pay quarterly to the City during the life of the franchise a sum equal to twenty (20) percent of its gross revenues. Grantee shall file with the City on such form as prescribed by the City within sixty (60) days after the end of each quarterly a report, under oath at the risk of perjury, of the gross revenues for the preceding quarterly period, and shall, at the same time, pay to the City a sum equal to twenty (20) percent of the gross revenues for the said quarterly period. Section 4.2 INDEMNIFICATIONS (a) Grantee shall at his/her sole cost and expense fully indemnify, defend and save harmless the City, its officers, boards, and employees against any and all claims, demands, suits, actions, liability a d judgments for damage arising out of the construction, operation and maintenance of the bi!F" ending machine franchise, and against all liabilities for damages by reason of, or arising out of, any failure by Grantee to safely operate and maintain the WFd4eedE719nding machines, including reasonable attorney's fees, arising out of the exercise or enjoyment of this franchise, irrespective of the amount of comprehensive liability policy required hereunder. This indemnity shall not apply to damages occasioned solely and exclusively by acts of the City, its agents or employees. (b) Within thirty (30) days after the granting of the franchise and at all times during the term of the franchise, Grantee shall obtain, pay all premiums for, and file with the City executed duplicate copies and receipts evidencing the payment of premiums for the following: A general comprehensive public liability insurance policy indemnifying, defending and saving harmless the City, its officers, boards, agents or employees from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the Grantee under franchise herein granted or alleged to have been so caused with a minimum of liability of (see ITEM VII INSURANCE) for personal injury or death of any two or more persons in any one occurrence. Renewal certificates of such insurance shall be promptly forwarded to the City as such renewals are made, and such insurance shall be kept in force and effect during the term of this grant or franchise. The Grantee and/or the insurance company shall file with the City a written notice of any material alteration or cancellation of any insurance coverage at least thirty (30) days prior to the effective date of such alteration or cancellation. Property damage insurance indemnifying, defending and saving harmless the City, its officers, boards, agents, and employees from and against all claims by any person whatsoever for property damage occasioned by the operation of a Grantee under franchise granted by City caused with a minimum liability of (see ITEM VII INSURANCE) for property damage to two or more persons in any one occurrence. Said policies of insurance shall name the City as an additional insured. (c) All _. the foregoing insurance certificates shall be in form satis ory to the City and shall be issued and maintained by companies authorized to do business in the State of Alabama and acceptable to the City and they shall require thirty (30) days written notice of any cancellation or reduction in coverage to both the City and Grantee herein, and a copy of said certificates shall be filed with the City. Section 4.3 BOOKS/RECORDS OF GRANTEE (a) All books and records of a Grantee concerning its operations within the City necessary for the enforcement of the provisions of this franchise, shall be made available for inspection and audit upon demand by the City within thirty (30) days after any request for such inspection or audit has been made. Section 4.4 GRANTEE ACKNOWLEDGEMENT (a) Grantee is an independent contractor. No agency or employment relationship is created by this Franchise Agreement. SECTION 5 Section 5.1 SALE OR LEASE OF FRANCHISE (a) No transfer or control of the Franchise, whether by force or voluntary sale, lease, assignment, foreclosure, attachment, merger, or any other form of disposition, shall occur or be considered valid without first giving prior notice and receiving the approval of the City. The notice shall include full identifying particulars of the proposed transaction. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the qualification of the prospective controlling party and the Grantee shall assist the City in any such inquiry. The City shall have one 60 days from the date the notice is received by the City within which to approve or disapprove, by resolution, the proposed transfer of control. The City will not unreasonably withhold its approval. (b) Approval of such transfer shall be expressly conditioned upon full compliance with the material terms of the franchise agreement and this Resolution. The transferee shall agree in writing to comply with all provisions of this Resolution and the franchise agreement. Section 5.2 REVOCATON OF FRANCHISE (1) Subject to the provisions of this section, the City reserves the right to revoke, at any time, any franchise granted hereunder and rescind all rights and privileges associated therewith in the event that: (a) Grantee has not substantially complied with a material provision of this Resolution, the franchise agreement, or of any supplemental written agreement entered into by an between the City and the Grantee; or (b) Grantee has made a material false statement in the application for the franchise, knowing it to be false, or Grantee commits a fraud in its conduct or relations under the franchise with the City; or (c) Grantee becomes insolvent, enters into receivership or liquidation, files for bankruptcy or assignment for benefits of creditors, or is unable to pay its debts as they mature, unless the Grantee is in due process of contesting such debts; or (d, Grantee fails to substantially comply with a material pro on of any federal or state statue, or of any material rules or regulations that govern telecommunications; or (e) Grantee exhibits a pattern of failing to comply with service standards as adopted herein or in the franchise agreement; or (f) Grantee fails to comply with any federal or state judgment arising directly from the exercise of Grantee's rights under its franchise; or (g) Grantee fails to provide or maintain in full force and effect the bond and insurance policies required by this Resolution and franchise agreement; or (h) Grantee assigns, sells or transfers its title or interest in its franchise without the consent of the City. (2) In the event that the City shall make a preliminary decision to revoke a franchise granted hereunder, it shall give the Grantee a minimum of thirty days written notice of its intention to terminate and stipulate cause. A public hearing shall be scheduled for the end of said 30 day period. If during said period, the cause shall be cured to the satisfaction of the City, the City shall declare the notice to be null and void. If the cause is not cured to the satisfaction of the City, before a franchise may be terminated, the Grantee must be provided with an opportunity to be heard before the City in a public hearing in accordance with due process procedures. After the public hearing, if the City, by majority vote, determines that the franchise should be terminated, it shall issue a written decision containing its findings of fact and stating the specific grounds for termination. The decision to terminate a franchise shall be subject to judicial review as provided by law. (3) A Grantee shall not be declared in default or be subject to any sanction under any provision of this Resolution and franchise agreement in any case where the City determines that the action justifying such sanction is without the Grantee's knowledge or authorization or outside its control. Section 5.3 RIGHTS UPON REVOCATION OR NON -RENEWAL In the event the City determines that a franchise should not be renewed at its expiration or that a franchise should be revoked for cause as permitted hereunder, the Grantee shall be allowed three months from the date of such determination, or such longer period as the City may permit, to negotiate the sale of its V a ,_� &r-,— c2- within the City to another provider at a price acceptable to the Grantee, provided that such sale shall be approved by the City pursuant to Section 5 herein. In the event a sale to a provider acceptable to the City is not then negotiated within the time allowed, then an independent expert shall be appointed to determine the fair market value of the Grantee's \t �- i The appointment of said expert shall be by mutual agreement between the City and the Grantee; provided, however, that if the City and the Grantee are unable to reach an agreement within 30 days of the written decision of termination, then the matter of appointing an expert shall be submitted, within ten (10) days immediately following expiration of the former 30 days, to the American Arbitration Association [unless the City and the Grantee mutually agree upon some other arbitrator(s)], and the expert designated by the American Arbitration Association or such other arbitrators shall be appointed. The cost of employing the arbitrator or arbitrators and the cost of arbitration, if required, shall be borne equally by the Grantee and the City. Upon determination of the fair market value of the Grantee's system by the appointed independent expert, the Grantee shall be required to sell its system to any entity which offers said fair market value and which has obtained the approval of the City to purchase said system. Section 5.4 R—.—VAL AND ABANDONMENT OF PROPERTY (a) If the use of any part of Grantee's is discontinued for any reason for a continuous period of twelve (12) months, or if such VC,-N VACr� "o does not comply with the requirements of these rules and regulations, or if rantee's franchise is terminated or revoked the City may in its discretion require that said system be sold to a franchise designated by the City at a purchase price equal to the machine's fair market value as determined in subsection (b) hereof. (b) Any dispute between the City and the Grantee over determination of the system's fair market value shall be determined in accordance with Section 5.3 above. Section 5.5 MISCELLEOUS PROVISIONS (a) This agreement constitutes the entire agreement of the parties and supersedes any and all agreements, understandings, statements or representations either oral or in writing. This agreement can be amended only by a written document signed by the parties. (b) This agreement shall be enforced and interpreted pursuant to the laws of the State of Alabama. IN WITNESS _WHEREOF, the Parties have hereunto set their respective signatures and seals on the day of J6U udo, 20,.� AttetFi A. an s, MC City CI rk THE CITY OF FAIRHOPE, ALABAMA By: imothy . KanA Mayor By: Grantee City of Fairhope CITY HALL PO DRAWER 429 FAIRHOPE, AL 36533 251-928-2136 001064-0008 Jennifer 12/19/2014 02:192M MISCELLANEOUS FRANCHISE FEE - CITY PROPERTY 1 @ 150.00 FRANCHISE FEE - CITY PROPERTY 150.00 Subtotal Total -------------- 150.00 150.00 150.00 CASH 150.00 -------------- Change due 0.00 Paid by: GABRIEL PUELLO Comments: COCA -COLA BOTTLING COMPANY FRANCHISE FEE 161 N SECTION ST, FAIRHOPE, AL 36532 http://www.cofairhope.com CUSTOMER COPY ACORD® CERTIFICATE OF LIABILITY INSURANCE 5/1/20152/ ATE(MMIDDIYYYY) PI16/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Lockton Companies p 3280 Peachtree Road NE, Suite #250 Atlanta GA 30305 (404)460-3600 CONTACT NAME: PHONE(FAX, No E-MAILA1C ADDRESS: INSURERS AFFORDING COVERAGE NAIC N INSURER A: ACE American Insurance Company 22667 INSURED Coca-Cola Bottling Co., Consolidated, ] INSURER B: IndemnityInsurance Co North America 43575 INSURER C : 338260 CCBCC Operations, LLC P.O. Box 31487 Charlotte NC 28231-1487 INSURER D: INSURER E INSURER F : CUVtHAGtS LUCCUU2 CERTIFICATE NUMBER! 177FQnRQ RFVIgInN NIIMRCD• VVVNIIV THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADD WVD POLICY NUMBER EFF MWDDY/YYYY POLICY MM/DDNYYY LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR X] GEN'L AGGREGATE LIMIT APPLIES PER: X POLICY [ PRO JECT ❑ LOC OTHER: N N HDO G27333801 5/1/2014 5/l/2015 EACH OCCURRENCE,000 DAMAGE TO RENTED PREMISES (Ea occurrence) S 300,000 MED FRCP (Any one n S 10-000 PERSONAL 8 ADV INJURY S 2,000,000 GENERAL AGGREGATE $ 5,000,000 PRODUCTS - COMP/OP AGG 5 4 -000.000 S A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS E N N MMTH08820739 5/l/2014 5/1/2015 (Ea accidenq 5 5,000,000 X BODILY INJURY (Per person) S XXXXXXX IAUTOS BODILY INJURY Per accident $ XXXXXXX X PROPERTY DAMAGE $ XXXXXXX $XXXXXXX UMBRELLA LIAB EXCESS LIAR HCLAIMS-MADE OCCUR NOT APPLICABLE I EACH OCCURRENCE S X}{}{}{}{}{}{ AGGREGATE S XXX X ( DED I I RETENTIONS g XXXXXXX B B A A WORKERS COMPENSATION AND EMPLOYERS'LIABILITY Y/ N ANY PROPRIETORIPARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? N (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A N WI-C47888207 (ADS) WLR- C47888219 (SC) WLR-C47888190 (CA,MA) WCU-C47888207(WWV) S/I/2014 5/1/2014 5/1/2014 5/l/2014 5/I/201$ 5/1/2015 5/I1201$ 5/1/2015 X STATUTE ER E.L. EACH ACCIDENT S 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT S 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) "Self Insured for Physical Damage" City of Fairhopc is included as additional insured with regards General Liability, Auto Liability as required by written contract, subject to policy terms, conditions and exclusions. brQMI IF-i%. 1 I G nvGVGn l.Arv\.CLLAI IVry 13269089 City of Fairhope 181 North Section Street Fairhope AL 36533 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. TION_ All rinhfe ranar rarl ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD EXHIBIT A rev1 Vending Machine Locations Vending Machine Locations Recreation Center City Pool City Hall City Services and Public Utilities James P. Nix Center Boys & Girls Club Stimpson Park Welcome Center Police Station Quail Creek Golf Course Wastewater Treatment Plant Concession Locations Fairhope Municipal Park Stadium High School Field Youth Baseball Pool Founders Park Soccer Youth Softball High School Field Barnwell Park Youth Football Quail Creek Golf Course Concession Stand Current Plastic or Cans # of machines one (1) 1 one (1) 1 one (1) 1 two (2) 2 one (1) 1 one (1) 1 one (1) 1 one (1) 1 one (1) 1 two (2) 2 one (1) 1