HomeMy WebLinkAboutO-1624bo
ORDINANCE NO. 1624
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. 001-18, Beverage Concession 2018, 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. 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 13TH DAY OF AUGUST, 2018
ATTEST:
CKi`s7A-DfaAs, Mmc
City Clerk
AZ
Karin Wilson, Mayor
EXHIBIT B
FRANCHISE AGREEMENT
(Amended 10-23-17)
FRANCHISE AGREEMENT
This Agreement is made and entere nt by an be e n the ; it of Fairhope, Alabama
("City") a municipal corporation and - ' ("Grantee").
RECITALS
Grantee is a sole proprietor with a principal place of business at
Fairhope, AL 36532. Grantee is engaged in the business
of iJ to the public. Grantee proposes to
install and I operate L S at the
�� ,e _ Ed C, -c, L:YIS . Grantee r quests that the City grant to Grantee a
franchise to in all, maintain and operate this business on public property at the
V P t 6 C &h DYIS
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.
(6) GRANTEE: Shall mean CC3e �( to whom a franchise has
been granted by the City or anyone who succeeds 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.
(7) PERSON: Shall mean an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
(8) SERVICE AREA: Shall mean the geographical area withi City of Fairhope and
specifically defined as follows: i In (I I'l . �0 Cal. I C"I 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. �&j�r.6o��
(e) No franchise shall be granted by the City to any food vendor who does not
show proof of ServSafe certification.
(f) No franchise shall be granted by the City to any vendor requiring a running
water supply for personal sanitary purposes and/or for cleaning equipment used in the
preparation of his/her product unless water supply is provided and metered by the City.
(g) Food franchises shall meet all Alabama Health Department regulations and
show proof thereof.
(h) No franchise shall be granted by the City to any vendor who has electrical
requirements without securing metered power from the City or, if applicable, having a
generator to supply the power required; generator shall meet City of Fairhope noise
ordinances.
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
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.
i
(b), Failure on the part of the Grantee to commence and diligently pursue
VQt E�j a (' or failure to commence operation after 90 days
from the con4mencement of this agreement shall be grounds for termination of the
franchise. The City may extend the time for the commencement and completion of
j-)Ajs1jj,01 VTilrhfor additional periods in the event the Grantee, acting in good
faith, expefiences delay by reasons of circumstances beyond her control.
(d) The V�%dL)_rr1U r1')G� LIU-'1(' shall be constructed and operated in
accordance with all adopted dity, 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
in a prudent and reasonable manner.
(b) Failures or malfunctions of the t,W(W shall be
corrected by the Grantee promptly after notice of such fail re or malfu ,tion 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 1/0"11& by
the Grantee in order to satisfy itself as to the proper performancd of the term4 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 an t(NeOW
udgments for damage arising out of the construction,
operation and maintenance of the VPr1J franchise,
and against all liabilities for damage$ by reason of, or arising obt of, any failure by Grantee
to safely operate and maintain the O' f
including reasonable attorney's fees, arising ojht of the exercise or enjoyment of this
franchise, irrespective of the amount of comprehensive liability polf6y 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 SLG CDC 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
Se( 01.Or 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.
Section 4.4 GRANTEE ACKNOWLEDGEMENT
(a) Grantee is an independent contractor. No agency or employment
relationship is created by this Franchise Agreement.
SECTION 6
Section 6.1 SALE OR LEASE OF FRANCHISE
(a) No transfer or control of the 6'yf'VA01( Virij,A
whether by force or voluntary sale, lease, assignment, forecl sure, attachm nt, 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 6.2 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 and 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
(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
p nod as the City may permit, to negotiate the sale of its
within the City to another provider at a price
acceptable Jo the Grantee, provided that such sale shall be approved by the City
pursuant to Section 5 he in. 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 LRt/vA,-i 1 The
appointment of said expert shall be by mutual agreement Iletween 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 14,yeam LtAtfim by the appointed independent
expert, the Grantee shall b required to sell its to any
entity which offers said fair market value and which has obtained the apprqWl of the City
to purchase said g /aa& a ✓ d Tina
Section 5.4 REMOVAL AND ABANDONMENT OF PROPERTY
(a) If the use of any part of Grantee's hpv&�W 00_ is r 1_
discontinued for any reason for a continuous period of twelve (12).months, or f suche�, i Q.C�0TA
n r does not comply with the requirements of these rules and i(�(
JeV6(1a(4e VP
regulations or if Grante 's franchise is terminated or revoked the City may in its discretion
���
C,U
require that said be sold to a franchise designated
by the City at a purchase price equal to the fair market t." S O
value as determined in subsection (b) hereof. teat, C S
lV4
(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 havej�ereunto set their respective signatures and
seals on the day of , 20 } X ,
THE CITY OF FAIRHOPE, ALAB
By: Ax"I
Karin o or
Attest•
is A. H nks, MMC
City Clerk
By: n)AW Mil
I:b
Grantee