HomeMy WebLinkAboutO-1543e
ORDINANCE NO. 1543
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 Lonnie Gibbs dba Mustache Mike's for a franchise agreement to install
and operate Italian Ice Vending Cart at the following location described: the
100' to 200' left of the Fairhope Boardwalk Pier and it is to be in the best
interest of the public and the City of Fairhope, Alabama, to grant a franchise to
Lonnie Gibbs dba Mustache Mike's 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. 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 4. This ordinance shall take effect immediately upon its due adoption
and publication as required by law.
ADOPTED THIS 27TH DAY OF JULY, 2015
ATTEST:
Lisa A. s, C
City C rk
FRANCHISE AGREEMENT
This Agreement is made and entered into by and between the City of Fairhope,
Alabama ("City") a municipal corporation and Lonnie Gibbs
("Grantee").
RECITALS
Grantee is a sole proprietor with a principal place of business at
18961 Malone Rd , Fairhope, AL 36532. Grantee is engaged in the
business of Selling Italian Ice to the public. Grantee
proposes to install and operate Italian Ice Vending Cart at the
Public areas of Fairhope . Grantee requests that the City grant to Grantee a
franchise to install, maintain and operate this business on public property at the
Public areas of FairhopefA/1n'
jag, Pf— I-EF+ O-F TH E go-AA0W-4L K e,. i�
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 Ordinance 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 -L s n►> -- 6L.-< to whom a
franchise has been granted by the City or anyone who succeeds
Lonnie Gibbs 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 services in the City of
Fairhope pursuant to this franchise agreement.
City of Fairhope — Franchise Agreement
Page 1 of 8
(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: Public areas of Fairhope� �� �C�• t 4 o-er KoA,0k)AL11C
Section 1.2 REQUIREMENTS FOR FRANCHISE nIC/'
(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.
Section 1.3 TERM OF FRANCHISE, RENEWAL
(a) The duration of this franchise agreement granted pursuant to this
Ordinance shall be for one year and shall be renewed automatically each year for three
years unless notice of termination is given in writing to the other party at least 60 days
prior to the expiration of the then current term. This Agreement shall commence 10 days
after approved by the City Council.
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 filing an application for a franchise that they will not
assert, at any time, in any claim or proceeding that any condition or term of the franchise
City of Fairhope — Franchise Agreement
Page 2 of 8
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 desiring a franchise shall apply to the City for such a grant.
The application for a franchise shall be in writing, in the form approved by and containing
such information as required by the City and must be accompanied by 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) Upon receipt of said franchise application, the City shall provide notice of
said application and conduct a public hearing to determine if the grant of the franchise
would be in the best interest of the citizens of City of Fairhope.
(c) The application shall contain a statement under oath that the applicant
will comply with all legal, financial and technical provisions of these rules and
regulations and any other municipal, state or federal regulatory agencies.
(d) The application shall define the proposed service area of the applicant
with specific time standards for the establishment of service to suit the service area.
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.
City of Fairhope — Franchise Agreement
Page 3 of 8
(b) Failure on the part of the Grantee to commence and diligently pursue
v S ► AC tt E . M,1-1=►- or failure to commence operation after 90 days
from the commencement of this agreement shall be grounds for termination of the
franchise. The City may extend the time for the commencement and completion of
IY\VS i WL I -I E NJ%y C�tfor additional periods in the event the Grantee, acting in
good faith, experiences delays by reasons of circumstances beyond her control.
(d) The Refrigerated Vending Cart shall 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 Refrigerated Vending Cart
in a prudent and reasonable manner.
(b) Failures or malfunctions of the Refrigerated Vending Cart shall be
corrected by the Grantee promptly after notice of such failure 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 necessary, have the right and privilege to
inspect the installation, operation and maintenance of the Refrigerated Vending Cart
by the Grantee in order to satisfy itself as to the proper performance of the terms of this
franchise agreement.
i[01'k, W.
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
City of Fairhope — Franchise Agreement
Page 4 of 8
claims, demands, suits, actions, liability and judgments for damage arising out of the
construction, operation and maintenance of the Refrigerated Vending Cart
franchise, and against all liabilities for damages by reason of, or arising out of, any
failure by Grantee to safely operate and maintain the
Refrigerated Vending Cart , 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 $1,000,000.00 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
$,,000,000.00 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 of the foregoing insurance certificates shall be in form satisfactory 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.
City of Fairhope — Franchise Agreement
Page 5 of 8
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 MVMK ifs"
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 Ordinance. The
transferee shall agree in writing to comply with all provisions of this Ordinance 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 Ordinance, 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 provision of
any federal or state statue, or of any material rules or regulations that govern
telecommunications; or
City of Fairhope — Franchise Agreement
Page 6 of 8
(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 Ordinance 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 Ordinance 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
1,6V ST t(f— _ b�a. I ve— C_, 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
(,.n v<TvRc lJ t- &nt 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
City of Fairhope — Franchise Agreement
Page 7 of 8
and the cost of arbitration, if required, shall be borne equally by the Grantee and the
City. Upon determination of a the fair market value of the Grantee's
(!�i U s7-ft _ IF-- by the appointed , independent expert, the
Grantee shall be required to sell its t lit- /!/l! K IL L to any entity which
offers said fair market value and which has obtained the approval of the City to purchase
said %!1 V;EfF /y-\ tKES
Section 5.4 REMOVAL AND ABANDONMENT OF PROPERTY
(a) If the use of anv part of Grantee's ] AUC ( ►ft+- F. AA14 s
discontinued for any reason fair a continuous period of twelve (12) months, or if such
/!L\, U cj1+(. LfC- M o�< &6es not comply with the requirements of these rules and
regulations, or if Grantee's franchise is terminated or revoked the City may in its
discretion require that said S:bect{ F MAt&e --'Y be sold to a franchise
designated by the City at a purchase price equal to the u�ldc 14 F Mt ICF r
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 Pa es have hereunto set their respective
signatures and seals on the 9V day of 20, 5
THE CITY OF FAIRHOPE, ALABAMA
By
Atte��isa
A.I
anks, MMC
4Z
City CI
City of Fairhope — Franchise Agreement
Page 8 of 8
Lonnie Gibbs Grantee
CITY OF FAIRHOPE
CITY HALL
PO DRAWER 429
FAIRHOPE, AL 36533
251-928-2136
002026-0001 Jennifer 06/15/2015 01:38PM
MISCELLANEOUS
FRANCHISE FEE - CITY
PROPERTY
1 @ 150.00
FRANCHISE FEE - CITY
PROPERTY 150.00
Subtotal
Total
--------------
150.00
150.00
150.00
CHECK 150.00
Check Number 20608955061
--------------
Change due 0.00
Paid by: LONNIE GIBBS
Comments: FRANCHISE FEE APPLICATION FOR
MUSTACHE MIKE
161 N SECTION ST, FAIRHOPE, AL 36532
http://www.cofairhope.com
CUSTOMER COPY