HomeMy WebLinkAboutO-1829.5
"O
Q)
i
:0
:::l a.
~ LL. 0
'E
0
ORDINANCE NO. 1829
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 Richard T. Barrett for a franchise agreement to Teach Tennis and
Pickleball, at the fo ll owing location described: Mike Ford Tennis Center at
Stimpson Park, 600 Morphy Avenue, Fairhope, Alabama and it is to be in the
best interest of the public and the City of Fairhope , Alabama, to grant a franchise
to Richard T. Barrett under the terms and conditions of the franchise agreement
attached hereto as "Exhibit A" including the fees that shall be paid to th e City
with respect to same.
SECTION 2. Pursuant to the autho rity 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 severab le, and if any phrase, clause , sentence , paragraph or section
of thi s ordinance shall be declared unconstitu ti onal 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 an y such unconstitutional phrase , clause, sentence , paragraph or
section.
SECTION 4. This ordinance shall tak e effect immediately upon its due adoption
and publication as required by law .
ADOPTED THIS 24TH DAY OF MARCH , 2025
ATTEST :
~ City Clerk
ADOPTED THIS 24TH DAY OF MARCH , 2025
FRANCHISE AGREEMENT
This Agreement is made and entered into by and between the City of Fairhope ,
Alabama ("City") a municipal corporation and Richard T. Barrett , ("Grantee ").
RECITALS
Grantee is a sole proprietor with a principal place of business at Mike Ford
Tennis Center located at 600 Morphy Avenue , Fairhope , AL 36532 . Grantee is
engaged in the business of Teaching Tennis and Pickleball to the publ ic. Grantee
proposes to install and operate N/A at the Mike Ford Tennis Center . •
Grantee requests that the City grant to Grantee a franchise to install , maintain and
operate this business on public property at the Mike Ford Tennis Center .
In consideration of the mutua l covenants , promises and condit ions 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 Richard T. Barrett to whom a franchise has
been granted by the City or anyone who succeeds Richard T. Barrett , in accordance
with the provisions of the franchise .
Ci ty of Fairhop e -Fran chise Agreement
P age 1 of 9
(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 within City of
Fairhope and specifically defined as follows : Mike Ford Tennis Center located at 600
Morphy Avenue, Fairhope, Alabama .
Section 1.2 REQUIREMENTS FOR FRANCHISE
A Franchise Agreement is entered into when the person is using public property to
conduct a business but is not leasing said public property.
(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.
(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 electrica l
requirements without securing metered power from the City or, if applicable, having a
generator to supply the power requ ired ; generator shall meet City of Fa irhope noise
ordinances .
City of F airhop e -Fran chi se Agreement
Page 2 of9
Section 1.3 TERM OF FRANCHISE, RENEWAL
(a) The duration of this franchise agreement granted pursuant to this
Ordinance shall be for one yea r and shall be renewed automatically each year for three
years unless notice of terminat ion is given in writing to the other party at least 60 days
prior to the expirat ion 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 t he terms or
conditions of t he franch ise by any fa ilure of the City upon any one or more occasions to
insist upon or to seek compliance with any such te rms 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 fa ilure 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 t hey 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 condit ions , but shall be required to accept the validity of the terms and cond itions
of the franchise in their entirety .
Section 1.5 CONFLICT WITH LAWS
(a) Wheneve r any law of the State of Alabama or of the United States , or of
any agency of either, shall be in direct confl ict 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 prov isions of this franchise granted hereunder shall be
suspended and be of no force and effect and the Grantee shall not be requ ired to
comply with such provision ; however, the val idity of the remaining portions or prov isions
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 prov ision 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 des iring a franchise shall apply to the City for such a grant.
The applica t ion for a franchise shall be in writing , in the form approved by and con t aining
City of Fairhop e -Franchise Agreement
Page 3 of 9
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.
(b) Failure on the part of the Grantee to commence and diligently pursue
NIA 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 N/A for additional periods in
the event the Grantee , acting in good faith , experiences delays by reasons of
circumstances beyond her control.
(d) The N/A 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.
(b) Grantee is designated a specific area in which Grantee may conduct
business under this Franchise Agreement.
(c) Business conducted from moving vehicles (i.e., ice cream trucks) do not
require a Franchise Agreement to operate on City streets ; however , any
vehicle parked in one spot for longer than thirty (30) minutes and
conducts business while parked , shall be required to enter into a
Franchise Agreement. Violations may result in loss of City of Fairhope
Business License .
City o f F air hope - F ranchi se Agreem en t
Page 4 of 9
Section 3.3 OPERATION AND MAINTENANCE
(a) The Grantee shall install and maintain ___ N_/A ___ in a prudent and
reasonable manner.
(b) Failures or malfunctions of the N/A 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 operation of the Teaching Tennis and Pickleball to the public 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 bus iness , 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 and judgments for damage arising out of the
construction, operation his Tennis and Pickleball Teaching franchise, 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:
City of Fairhop e-Franchi se A greem ent
Page 5 of 9
A genera l comprehensive public liability insurance policy indemn ifying ,
defending and sav ing 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
cert ificates 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 not ice of any material
alteration or cancellat ion 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 perso n whatsoever for property damage occasioned by the operation
of a Grantee under franchise granted by City caused with a minimum
liab ility of $1,000,000 .00 for property damage to two or more persons
in any one occurrence. Said policies of insurance shall name the C ity as
an additional insured.
(c) All of the foregoing insurance certificates shall be in form satisfactory to
the C ity and shall be issued and ma intained 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 afte r
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 Agreement or Business ,
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 giv ing
prior notice and receiving the approval of the City . The notice shall include full
City of Fairhop e -Franchise Agreement
Page 6 of9
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 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 ma!erial provis ion 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.
City of Fairhope -Franchi se Agreement
Page 7 of 9
(2) In the event that the City shall make c\ 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 fo r terminat ion . 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 th is Ord inance 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 he reunder, 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 N/A 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 even t 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/A . 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 othe r
arbitrator(s)], and the ~xpert 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 N/A by the
appoin ted independent expert , the Grantee shall be required to sell its N/A to
any entity which offers said fair market value and which has obtained the approval of the
City to purchase sa id N/A
City of Fairhope -Franchise Agreement
Page 8 of9
Section 5.4 REMOVAL AND ABANDONMENT OF PROPERTY
(a) If the use of any part of Grantee 's N/A is discontinued for any
reason for a continuous period of twelve (12) months, or if such N/A does 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 N/A be
sold to a franchise designated by the City at a purchase price equal to the N/A
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 s~als on the ~4-"-11:> day of March , 2025.
City of Fairhope -Franchise Agreement
Page 9 of 9
THE CITY OF FAIRHOPE, ALABAMA
By /Ztr J't/C=-
> Richard T. Barrett, Grantee