HomeMy WebLinkAboutO-1832ORDINANCE NO. 1832
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 United -Central, LLC for a franchise
agreement to operate Beverage Vending Machines at th e following location
described: in locations specified in Bid No. 25-015, Beverage Ve nding and
Concession Annual Contract -Three Years, and it is to be in the best interest
of the pub li c and the City of Fairhope, Alabama, to grant a franchise to Coca-
Cola Bottling Company United 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 secti ons, paragraphs , sentences , clauses and phrases of this
ordinance are severabl e, 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 ordin ance shall take effect immediately upon its due adoption
and publication as required by law.
ADOPTED THIS 29TH DAY OF APRIL , 2025
ATTEST :
City Clerk
ADOPTED THIS 29TH DAY OF AP RIL , 2025
ATTACHMENT B
FRANCHISE AGREEMENT
This Agreement is made and entered into by and between the City of Fairhope,
Alabama ("City") a municipal corporation and Coca,-Cola. &±tf 1':.5 Co mpOnJ Uni&q -{t,,,,,-1.rr.r_f, LL(_
("Grantee").
RECITALS
Grantee is a sole a principal place of business at
36532. Grantee is engaged in the
business of to the public. Grantee
proposes to instal ' and ope e C ·n ~ at the
s eleded c tfu l6calionS . Grantee re ests tha he City grant to Grantee a
franchise to 7n7stall ,J main~ain and operate this business on public property at the
qjCeffl tJ(X>D veba i0) Lrmtilf£.
In consideration of the mutual covenants, promises and conditions set forth
herein the part ies 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 Coc1 --ak&lf!; q ~ t1U111 0 w om a I ~ I I. • ti -n-6::r/, L lC
I franchise has been granted L£t._ the City or 5a ni ne'fr who succeeds
UC.i -GkM!igy~!j {/o;fi:rf-redml,,. in accordance with the provisions of the franchise.
City of Fairhope -Franchise Agreement
Page 1 of9
(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 ar13a within City of
Fairhope and specifically defined as follows: C'.;-6-j \J eV)cJi'<:J [fbckoe {O((J ttlf\"S,
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 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.
City of Fairhope-Franchise 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 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
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(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.
Failure on the part of the Grantee to commence and diligently pursue
__ ___t.,,£.i'Lt:l.(J.ff.~./Lf:.~I.I.il.· 4 ____ or failure to commence operation after 90 days
from the com1 encement this agreement shall be grounds for termination of the
franchise . The City _fay extend the time for the commencement and completion of
/2-o/l~ #11rl/Ll_tl for additional periods in the event the Grantee, acting in
goo~aifu,'experienceWeiays by reasons of circumstances beyond her control.
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 of Fairhope -Franchise Agreement
Page 4 of9
Section 3.3 OPERATION AND MAINTENANCE
(a) The Grantee shall install and maintain &veeye iftJd/lJ:!J
in a prudent and reasonable manner .
(b) Failures or malfunctions of the .JC=~.=:..£..::::...::jU,...._...l<:...::;.L..4........_.....L...jc;;,.. shall be
corrected by the Grantee promptly after notice of such fail ~ or malfuns • 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 ~ ivil ge to
inspect the installation, operation and maintenance of the ~ ~
by the Grantee in order to satisfy itself as to the proper performance
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 and judgments for damage arising out of the
negligence or willful misconduct of the Grantee in the construction , operation and
maintenance of the beverage vending franchise , and against all liabilities for damages
by reason of, or arising out of, any failure by Grantee to safely operate and maintain the
beverage vending franchise , inGluding 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
City of Fairhop e -Franchi se Agreem ent
Page 5 of 9
the City a Certificate of Insurance for such insurance coverage as set forth in Item V
Insurance of the Bid No. 25-015.
(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 endeavor to provide 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 h ~lfif e /l&Jlif!fir '
whether by force or voluntary sale, lease, assignment, to7 losure, attac 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 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:
City of Fairhope -Franchise Agreement
Page 6 of9
(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
City of Fairhope -Franchise Agreement
Page 7 of 9
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
l:e/.Je.fb.iJe !/md/af!.. within the City to another provider at a price
acceptabie..lo the Granful 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 deter ine the fair market value of the Grantee's
--"=,,,J,'--4,<,,!',,-0--'""""'4--'----"-'..J.....;'-"-"'-'_,_· ~'---· The appointment of said expert shall be by mutual
agreement tween the ~ ty 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 determin tion of the fair market value of the Grantee 's
Gra
b the appointe i dependent expert, the
------J~L../LJ"-L-..!e'...::!o~--4~'..LJJ..LL.I.. '.:+--to any entity which
·ch h the approva f the City to purchase
Section 5.4 REMOVAL AND ABANDONMENT OF PROPERTY 0'-'.<" elf;IA.~wtwf
(a) If the use of any part of Grantee's {:;;g/J~rf),(J,.f!.. Uet(/!nQ is lw'l,w{---_bl,
dis ntinued for an~_ reason for a continuous period of twelve (12}Jnonths, or 'i/2uch ~\~ a..11\,J.
---'-~r,L!.-.=~~.JqJ..l.L.£.L.....j. __ does not comply with the requirements of these rules and
regulatio , or if Gr ee 's franchise is terminated or revoked the City may in its
discretion require that said -be sold to a franchise
designated by the City at a purchase price equal to the .--------------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.
City of Fairhope -Franchise Agreement
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IN WITNESS WHERE~, the Parties have hereunto set their respective
signatures and seals on the ~ay of /J:...-a I , 20.1,£.
·I
Atta~ /t~L ,/ Crsa¥anils7vt~
City Clerk
City of Fairhope -Franchise Agreement
Page 9 of9
By: _!L&~--~~0 ,__._...M._,....---~ ,Grantee
A TT AC HM ENT A
Current Vending Machine Locations
Location # of Machines
Recreation Center 2
City Pool 1
City Ha ll 1
City Services and Public Utilities 1
Stimpson Park 1
Mike Ford Tenn is Center 1
Police Station 1
Wastewater Treatment Plant 1
Aviation Academy 1
Fairhope Docks 1
Current Concession Locations
A . Fairhope Mun icipal Park including : Stadium . High School Baseball , Youth Baseba ll , and Poo l
B. Founders Park including: Youth Softball , Youth Soccer, and High School Softball
C. Barnwe ll Park including : Youth Football and Adult Softball
D. Quail Creek Golf Course
E. Fairhope Soccer Complex