05-01-07 Item 21South Miami
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CITY OF SOUTH MIAMI 1 '
OFFICE OF THE CITY MANAGER
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INTER- OFFICE MEMORANDUM 2001
To: The Honorable Mayor Feliu and Members of the City Commission
Via: Yvonne S. McKinley, City Manager
From: W. Ajibola Balogun, REM, CFEA,
Assistant City Manager
Date: April 3, 2007 Agenda Item No.: /
Subject: Request to approve non - exclusive franchise agreement with Waste Services of
Florida (WSI) for commercial solid waste collection services.
Resolution: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO FRANCHISES; AUTHORIZING THE
EXECUTION OF A NONEXCLUSIVE FRANCHISE AGREEMENT WITH WASTE
SERVICES OF FLORIDA, INC. (WSI) FOR AN INITIAL ONE YEAR PERIOD,
RENEWABLE FOR SUCCESSIVE ONE YEAR PERIODS, UPON APPLICATION OF
THE FRANCHISEE, AND APPROVAL OF THE APPLICATION BY THE CITY
COMMISSION. PUBLIC HEARING; PROVIDING FOR A $5,000 ANNUAL FEE TO
THE CITY; AND A 20% PAYMENT OF THE FRANCHISEES' GROSS RECEIPTS
TO THE CITY; PROVIDING FOR STANDARDS OF INSURANCE; PROTOCOL
FOR PROVIDING SERVICES; PROVIDING FOR SEVERABILITY, ORDINANCES
IN CONFLICT, AND AN EFFECTIVE DATE
Request: To authorize the execution of a non- exclusive franchise agreement with Waste
Services of Florida (WSI) for commercial solid waste collection services for an
initial one year period, renewable for successive one year period upon
application of the franchisee, and approval of the application by the City
Commission.
Reason /Need: The U.S. Department of Justice recently issued final approval to Waste
Services of Florida, Inc. (WSI) to acquire Allied Waste's South Florida operations, which consists
of a collection company (Browning- Ferris Industries, known as "BFI "); a transfer station that is
permitted to process 800 tons per day; and a materials recovery facility providing services in
Miami -Dade County. As you know, BFI is one of our commercial solid waste collection franchisee.
Since Section 11 -7 of our City Code precludes the transfer of the franchise from BFI to WSI, WSI
has filed an application to become a commercial solid waste collection franchisee with the City of
South Miami.
In accordance with Section 11 -9, of the City's Code of Ordinances WSI has submitted the
required items in order to evaluate the franchise request:
(1) The applicant's name, address, and telephone number (primary office
information and telephone number of all offices within the county which are supervisory to the
office serving the city);
(2) Evidence of insurance as required under section 11 -11, of the city's code of
ordinances;
(3) A complete list of the vehicles which will be used to service accounts in the city
(year, make, model number and license plate number of each vehicle);
(4) Evidence that proposed franchisee: has obtained all required county, state, and
federal licenses or permits required to engage in the business of garbage or solid waste
collection;
(5) Evidence that the proposed franchisee has made arrangements to dispose all
garbage and solid waste collected by it outside the city limits, in a facility designed and licensed
for the disposal of garbage and solid waste and which meets all requirements of law;
(6) The name, address, business telephone and home telephone of one or more
responsible managerial employees who may be contacted by the appropriate city officials in the
event of an emergency;
(7) If the applicant is other than a natural person, sufficient information to identify the
shareholders, partners or other persons holding any legal or beneficial interest in the applicant
in the excess of 10 percent; and
(8) A performance bond in the amount of $100,000.00 with good and sufficient
sureties conditioned upon the compliance of the terms of chapter 11, of the city's code of
ordinances, and such form as the city attorney may require.
Cost: N/A
Funding Source: N/A
Backup Documentation:
❑ Proposed Ordinance
LJ Proposed Non - Exclusive; Franchise Agreement
❑ Required application items per Section 11 -9 of the City's Code of
Ordinance
• Florida Certificates of Good Standing for Waste Services of Florida, Inc.
and Waste Services, Inc.
• Delaware Certificates of Good Standing for Waste Services of Florida,
Inc. and Waste Services,, Inc.
❑ Letter from County Manager, George M. Burgess, regarding
Assignment of Department of Solid Waste Management Contracts to
Waste Services, Inc. from BFI /Allied Waste.
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ORDINANCE NO.:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI[, FLORIDA, RELATING TO
FRANCHISES; AUTHORIZING THE EXECUTION OF A
NONEXCLUSIVE FRANCHISE AGREEMENT WITH WASTE
SERVICES OF FLORIDA, INC. (WSI) FOR AN INITIAL ONE YEAR
PERIOD, RENEWABLE FOR SUCCESSIVE ONE YEAR PERIODS,
UPON APPLICATION OF THE FRANCHISEE, AND APPROVAL OF
THE APPLICATION BY THE CITY COMMISSION. PUBLIC HEARING;
PROVIDING FOR A $5,000 ANNUAL FEE TO THE CITY; AND A 20%
PAYMENT OF THE FRANCHISEES' GROSS RECEIPTS TO THE CITY;
PROVIDING FOR STANDARDS OF INSURANCE; PROTOCOL FOR
PROVIDING SERVICES; PROVIDING FOR SEVERABILITY,
ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE.
WHEREAS, the Mayor and City Commission of the City of South Miami previously
granted a solid waste collection franchise to BFI; and,
WHEREAS, BFI, a current South Miami solid waste collection franchisee shall cease to
exist, as the U.S. Department of Justice has provided its final approval to Waste Services of
Florida, Inc. (WSI) to acquire Allied Waste's South Florida operations, consisting of a collection
company (Browning -Ferris Industries, known as BFI), a transfer station that is permitted to
process 800 tons per day, and a materials recovery facility providing service in Miami -Dade
County Florida; and,
WHEREAS, the city code, at section 11 -7 precludes the transfer of the franchise from
BFI to WSI; and
WHEREAS, based upon the foregoing, WSI has filed an application to become a solid
waste collection franchisee with the City of South Miami; and,
WHEREAS, pursuant to section 11 -9, of the city's code of ordinances WSI has provided
the items required by the city commission in order to evaluate the franchise request, which
application requires:
(1) the applicant's name, address, and telephone number (primary office information
and telephone number of all offices within the county which are supervisory to the office serving
the city);
(2) evidence of insurance as .required under section 11 -11, of the city's code of
ordinances;
(3) a complete list of the vehicles which will be used to service accounts in the city
(year, make, model number and license plate number of each vehicle);
(4) Evidence that proposed franchisee has obtained all required county, state, and
federal licenses or permits required to engage in the business of garbage or solid waste
collection;
Additions shown by underlining and deletions shown by ever-striking.
1 (5) evidence that the proposed franchisee has made arrangements to dispose all
2 garbage and solid waste collected by it outside the city limits, in a facility designed and licensed
3 for the disposal of garbage and solid waste and which meets all requirements of law; .
4 (6) the name, address, business telephone and home telephone of one or more
5 responsible managerial employees who may be contacted by the appropriate city officials in the
6 event of an emergency;
7 (7) if the applicant is other than a natural person, sufficient information to identify the
8 shareholders, partners or other persons holding any legal or beneficial interest in the applicant in
9 the excess of 10 percent; and
10 (8) a performance bond in the amount of $100,000.00 with good and sufficient
11 sureties conditioned upon the compliance of the terms of chapter 11, of the city's code of
12 ordinances, and such form as the city attorney may require.
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14 WHEREAS, the Mayor and City Commission desire to approve the franchise request
15 subject to acceptance of the terms and conditions set forth in the attached franchise agreement,
16 having determined that such consent is consistent with federal, state, and municipal law and in
17 the best interest of the city.
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19 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
20 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
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22 Section 1. The above whereas clauses are incorporated by reference.
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24 Section 2. The city approves the request for a solid waste collection franchise for
25 Waste Services of Florida, Inc. (WSI), as provided for in the attached exhibit 1, which is
26 incorporated by reference.
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28 Section 3. WSI, pursuant to section 11 -10 of the city's code of ordinances shall pay
29 to the city an annual fee of $5,000.In addition, the franchisee shall pay to the city a franchise fee
30 of 20 percent of the franchisees' gross receipts from accounts within the city serviced by the
31 franchisee. This fee shall be in addition to any occupational license taxes levied by the city
32 upon the franchisee's business activities.
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34 Section 4. The city manager of the City of South Miami is authorized to enter into,
35 execute the attached contract and deliver in the name and on behalf of the City of South Miami a
36 certificate, along with such other documents as may be necessary evidencing the franchise
37 without further act of this governing body. This franchise shall be for a one year period, with a
38 possible renewal, annually, upon approval of the City Commission of the application.
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40 Section 5. If any section, clause, sentence, or phrase of this ordinance is for any
41 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
42 affect the validity of the remaining portions of this ordinance.
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44 Section 6. All ordinances or parts of ordinances in conflict with the provisions of this
45 ordinance are repealed.
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Additions shown by underlininc and deletions shown by everstriking
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Section 7. This ordinance shall take effect immediately upon enactment.
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PASSED AND ADOPTED this _
day of , 2007.
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ATTEST:
APPROVED:
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CITY CLERK
MAYOR
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1 St Reading -
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2nd Reading —
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COMMISSION VOTE:
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READ AND APPROVED AS TO FORM
Mayor Feliu:
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Vice Mayor Wiscombe:
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Commissioner Birts:
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Luis R. Figueredo,
Commissioner Palmer:
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Nagin Gallop & Figueredo, P.A.,
Commissioner Beckman:
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Office of City Attorney
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Additions shown by underlining and deletions shown by ever-
NON - EXCLUSIVE FRANCHISE AGREEMENT
THIS NON - EXCLUSIVE FRANCHISE AGREEMENT (this "agreement ") dated as of
the day of , 2007 is made and entered into by and between the CITY OF SOUTH
MIAMI, FLORIDA, a Florida municipal corporation ( "City "), and WASTE SERVICES OF
FLORIDA, INC. a Delaware Corporation ( "W.S.I." or the "franchisee "),.
WITNESSETH:
WHEREAS, pursuant to chapter 11, of the City's code of ordinances, a non exclusive
franchise for waste collection services maybe issued upon application to the City Commission;
and,
WHEREAS, W.S.I., providing mutli- regional integrated solid waste services desires to
provide collection, transfer, landfill disposal and recycling services for commercial, industrial
and residential customers within Miami -Dade County; and,
WHEREAS, the U.S. Department of Justice has provided its final approval to a
transaction wherein WSI will be acquiring Allied Waste's South Florida operations, consisting of
a collection company ( Browning - Ferris Industries, known as BFI, a transfer station that is
permitted 'to process 800 tons per day, and a materials recovery facility providing service in
Miami -Dade County, Florida; and,
WHEREAS, BFI currently holds a solid waste collection franchise with the City of South
Miami, however, pursuant to chapter 11, a franchise may not be transferred to a third parry; and,
WHEREAS, a new franchise may issue, upon application and approval of the City
Commission; and,
WHEREAS, WSI has filed an application with the City manager requesting to provide
solid waste services within the City of South Miami; and,
WHEREAS, WSI and the City each desire to enter into this non exclusive franchise
agreement, in conformance with the requirements of chapter 11 of the City's code of ordinances.
NOW THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and legal sufficiency of which the parties acknowledge, and in further
consideration of mutual covenants contained in this agreement, the parties agree as follows:
Section 1. Whereas clauses. The above Whereas clauses (i.e., recitals) are incorporated
and made a part of this agreement.
Section 2. Definitions. For the purposes of this agreement, the following terms will have
the meanings defined below:
Biomedical/biohazardous waste shall mean any solid waste or liquid waste which may
present a threat of infection to humans. The term includes but is not limited to, non - liquid
human tissue and body parts; laboratory and veterinary waste which contains human disease
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causing agents; used disposable sharps, human blood, human blood products and body fluids;
and other materials which in the opinion of the department of health and rehabilitation services
represent a significant risk of infections to'persons outside the generating facility.
Biological waste shall mean solid waste that causes or has the capability of causing
disease or infection and includes, but is not limited to biohazards waste, diseased or dead
animals, and other waste capable of transmitting pathogens to humans or animals.
City shall mean the City of South Miami, Miami -Dade County, Florida, and its
successors and assigns.
Commercial establishments shall mean any business establishment of any nature or kind
whatsoever other than a residential unit.
Commercial solid waste shall mean every waste accumulation, including but not limited
to, dust, paper, paper cartons, cardboard cartons, excelsior, rags, garbage, plastics, metal
containers, bulky waste and other waste which is usually attendant to the operations of
commercial businesses or multifamily residences.
Construction and demolition debris shall mean and include all waste requiring collection
and disposal, including but not limited to materials which are recyclable, from any construction,
demolition; or renovation site located within the City.
Consumer or Customer shall mean any person, firm, or public or private entity served by
the franchisee within the municipal boundaries of the City.
Director shall mean the director of public works.
Franchise shall mean the rights granted to franchisee under this agreement.
Franchisee shall mean the franchisee named above in this agreement and its successors
and assigns.
Garbage shall mean every refuse accumulation of animal, fruit, vegetable, or organic
matter that attends the preparation, use, cooking and detailing in, or storage of, meats, fish, fowl,
fruit, or vegetables, and decay, putrefaction, and the generation of noxious or offensive gases or
odors, or which, during or after decay, may serve as breeding or feeding material for flies or
other germ carrying insects.
Garbage can or container shall mean a container made of galvanized metal, durable
plastic or other suitable material of a capaCity not less than ten (10) gallons and not to exceed
thirty gallons approved for use by the City manager or his/her designee.
Gross receipt shall mean the entire amount of fees billed by a franchisee, exclusive of
state-sales taxes provided by law from any person within the City for garbage, hazardous,
industrial, biomedical, biological, or solid waste construction and demolition, debris, trash,
litter refuse, and/or rubbish collection, removal and disposal.
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Hazardous waste shall mean solid waste, or a combination of solid wastes, which
because of its quantity,, concentration, or physical, chemical, or infectious characteristics, may
cause, or significantly contribute to an increase in mortality or an increase in serious irreversible
or incapacitating reversible illness or may pose a substantial present or potential hazard to human
health or the environment when improperly transported, disposed of, stored, treated, or otherwise
managed.
Industrial waste shall mean any and all debris and waste products generated by
manufacturing, food processing (except restaurants), land clearing, any commercial shrubbery or
tree cutting, building construction or alteration (except do- it- yourself home projects) and public
works type construction projects whether performed by a government unit or by contract.
Infectious waste shall mean those wastes which may cause disease or may reasonably be
suspected of harboring pathogenic organisms. Included are wastes resulting from the operation
of medical clinics, hospitals, and other facilities producing wastes which may consist of, but are
not limited to, diseased human and animal parts, contaminated bandages, pathological
specimens, hypodermic needles, contaminated clothing and surgical gloves.
Loose refuse shall mean any refuse, either garbage or trash stored in and collected from
any type of container other than a mechanical container or garbage can. Refuse which is
collected from the ground is considered loose refuse.
Mechanical container shall mean and include any detachable metal container designed or
intended to be mechanically dumped into a loader /packer type of garbage truck used by the
franchisee.
Performance bond shall mean the form of security approved by the City and furnished by
the franchisee as required as a guarantee that the franchisee will execute the work in accordance
with the terms of chapter 11, of the City's code of ordinances and will pay all lawful claims.
Permit per account fee shall mean the annual charge assessed by the City to nonexclusive
franchises for each account with whom they contract for the provision of services.
. Recyclable materials shall mean those materials which are capable of being recycled and
which would otherwise be processed or disposed of as a solid waste.
Refuse shall mean both rubbish and garbage or a combination or mixture of rubbish and
garbage, including paper, glass, metal and other discarded matter, excluding recyclable materials.
Refuse containers shall mean garbage can, garbage container, automated domestic
garbage container, domestic trash container and commercial refuse container.
Refuse regulations shall herein refer to regulations prescribed by the City together with
such administrative rules, regulations and procedures as may be established under or pursuant to
chapter 11, of the City's code of ordinances.
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Solid waste shall mean refuse, yard trash, clean debris, white goods, special waste, refuse
or other discarded materials.
Special waste shall mean solid wastes that can require special handling and management,
including, but not limited to, radioactive materials, asbestos, whole tires, used tires, used oil,
lead -acid batteries, mercury lights and biological wastes.
Temporary roll - off /container fee shall mean the one time charge paid, per account, to the
City for each large container and/or roll -off utilized by franchisees to provide contracted removal
and disposal of waste from commercial construction and demolition, renovation and other
similar accounts.
Section 3. Grant. Franchisee is granted for a period of one year from the date of this
agreement, a non- exclusive right, privilege and franchise, to provide solid waste collection
services to the City, its inhabitants, businesses, industries. This franchise may be extended by
the consent of the City Commission. This grant of authority to franchisee is strictly limited to
the provision of solid waste collection services.. No franchise granted by the City shall be
deemed the property of the holder thereof.,
Section 4. Assignment. Pursuant to chapter 11, of the City code, no sale, assignment, or
transfer of the rights granted in this agreement shall be allowed. Any transfer shall require a new
application for franchise and request for approval by the City commission, as required under 11-
7, of the City code. Thereafter, the City may, by ordinance approve and consent to the new
franchisee, which approval shall not be unreasonably withheld or delayed; provided, however,
that any sale, assignment or transfer decreed by a court of competent jurisdiction in any
receivership or bankruptcy proceedings shall not be governed by the provision of this section.
Franchisee may, without obtaining the City's consent, pledge this franchise and, or the facilities
as security, provided, however, in the event of a foreclosure of the pledge, the City shall have the
right to revoke the franchise under section 16 below.
Section 5. Compliance with laws. The franchisee agrees to abide by` all the rules and
regulations and ordinances which the City has passed or might pass in the future, and further
agrees to abide by any established reasonable policy which the City commission or its duly
authorized representative has passed, established, or will establish; provided, however, it is not
intended that the City shall have the right of altering or breaching the terms of this agreement.
Notwithstanding anything to the contrary, the provisions of this section shall only apply to the
regulations, rules and laws of the City, whether enacted or adopted by ordinance or otherwise, as
shall be not in conflict with or preempted by the; rules, regulations, and laws of other State of
Florida or federal governmental authorities or agencies governing the transportation or disposal
of solid waste.
Section 6. Service Standards. All garbage and solid waste collection service
provided within the City shall meet the following minimum requirements;
(1) All solid waste or garbage collection shall begin no earlier than 7 :00 a.m.
Collection shall cease no later than 6:00 p.m. In case of an emergency, collection may be
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permitted at other times provided that the franchisee has received prior verbal approval from the
City manager, to be later evidenced by a written memorandum confirming the approval. Should
the franchisee not confirm and obtain in writing the approval to operate on an emergency basis it
shall be presumed that the franchisee did not obtain such approval.
(2) All trash or solid waste collected within the City shall transported to an
appropriately licensed dump or transfer or receiving station located outside the City limits. No
transfer station or the facility for the temporary storage of garbage or solid waste other than the
receptacles at the premises serviced shall be permitted with the City.
(3) No vehicle used for the collection of garbage or solid waste shall be permitted to
be parked, stopped or stored with in the City except fro the time reasonably required to empty
garbage or solid waste containers at the premises being served or to comply with traffic laws.
The franchisee shall be responsible . for the maintenance of all garbage or trash containers or
dumpsters in a clean and sanitary manner. All equipment shall be kept in good repair, appearance
and in a sanitary and clean condition at all times. The Franchisee shall have available reserve
equipment that can be put into service within two hours of any breakdown. Such reserve
equipment, shall be of adequate size and capaCity in order for franchisee to perform its
contractual duties. A list of the franchisee's equipment shall be given to the City at the time of
each annual audit.
(4) Equipment is to be painted uniformly with the name of the franchisee, business
telephone number of the vehicle in letter not less than two inches high on each side of the
vehicle. All vehicles shall be numbered and. a record shall be kept of the vehicle to which each
number is assigned. No advertising shall be permitted on the vehicles, except of events
sponsored by the City.
(5) All containers used for the purpose of storing garbage shall be emptied no less
often than two times weekly, or more often as the City manager determines that the health and
welfare of the public requires additional pick -ups. Pick -ups shall be as evenly spaced as
possible.
(6) The franchisee shall be responsible for the condition of all containers provided for
the storage of garbage or solid waste. All containers used for the storage of garbage or solid
waste shall be sanitized and otherwise maintained on a regular basis.
(7) Each garbage can, dumpster, or other container for the storage of garbage shall be
of such design as to prevent the infestation of the container by insects or vermin.
(8) Each franchisee shall be responsible for determining the type of garbage or solid
waste generated by its customers and assuring the proper disposal of the garbage or solid waste.
By way of example, franchisees servicing medical offices or buildings containing medical .
offices shall be responsible for assuring that the used bandages, dressings, needles and the like
are disposed in a manner appropriate for such items.
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(9) Each franchisee's solid waste collection employee shall wear a uniform shirt
bearing the company's name. The franchisee shall furnish to such employee an identifying
badge not less than two and a half inches in diameter with numbers and letters at least one inch
height, uniform and type. Employees shall be required to wear such badges while on duty. The
franchisee shall provide, at its expense, a suitable office located within close proximity to the
county where telephone complaints shall be received, recorded and handled during normal
working hours of each week and shall provide for prompt handling of emergency complaints
along with the special emergency complaints or calls.
(10) Each vehicle operator shall, at all times, carry a valid driver's license for the type
of vehicle that is being driven.
(11) The franchisee shall assure that its employees serve the public in a courteous,
helpful and impartial manner. The. Franchisee's collection employees will be required to follow
the regular walk for pedestrians while on private property. No trespassing by employees will be
allowed, nor crossing the property of neighboring premises unless residents or owners of both
properties shall have given permission. Care shall be taken to prevent damage to property
including, but not limited to garbage cans, carts, racks, trees, shrubs, flowers and other plants.
(12) Franchisee shall notify all customers in writing about complaint procedures, rates
and regulations. A copy of the procedures and any amendments or updates shall be provided to
the City.
(13) Except for servicing of dumpsters and servicing construction sites, a franchisee
that contracts for servicing of any property shall provide garbage collection service and all
related services required by the property.
(14) The City reserves the power to deny a franchisee's vehicles access to certain
streets, alleys and public way inside the City in route to the disposal site where it is in the interest
of the general public to do so because of the condition of the streets. A franchisee shall not
interrupt the regular schedule or quality of service because of street closures less than eight hours
in duration. The City shall notify the franchisee of street closures of longer duration and
arrangements for service will be made in a manner satisfactory to the franchisee and the City.
Customers shall receive reasonable notification of the schedules provided by the franchisee prior
to commencement of service. Notification, material, methods and frequency of delivery shall be
approved by the City. Only local truck routes shall be used in transit, unless specifically for the
purpose of collection.
(15) In case of a storm, the City manager or his/her designee may grant the franchisee
a reasonable variance from regular schedules and routes. As soon as practicable after a storm, the
franchisee shall advise the City manager and the customer of the estimated time required before
regular schedules and routes can be resumed.
(16) The performance of any act by the City or franchisee may be delayed or
suspended at any time while, but only so long as, either party is hindered in, or prevented from
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performance by acts of nature, war, rebellion, strikes, lockouts, or any other cause beyond the
reasonable control of the affected person.
Section 7. Performance bonds.
A. Within ten (10) business days after its acceptance of the terms and conditions of
this agreement, the franchisee shall file with the City clerk, a bond in the amount of $100,000
having as a surety a company qualified to do business in the State of Florida and reasonably .
acceptable to the City (the "performance bond"). The performance bond shall secure the full and
faithful performance by the franchisee of all requirements, duties and obligations imposed upon
the franchisee by the provisions of this agreement. The performance bond shall provide that the
surety shall give sixty (60) days prior written notice of any cancellation thereof to the City. The
franchisee shall cause the performance bond to be renewed or replaced and in effect at all times
throughout the term of this agreement.
B. Recovery by the City under a performance bond or under insurance shall not limit
the franchisee's indemnification obligations set forth in section 8 of this agreement with respect
to its operations, provided that the City shall not be entitled to double recovery. Recovery by the
City under either a bond or insurance is in addition to all other rights of the City, whether
specified in this agreement or authorized by law, provided that the City shall not be entitled to
double recovery. If a performance bond required by this agreement and previously approved by
the City is suspended, voided, or cancelled and not replaced, then the occurrence shall be a
violation of this agreement, subject to the notice and cure periods and remedies provided in
section 15 of this agreement.
C. Accidents or damages and relocation. In permitting the franchisee to operate
within the City, franchisee understands that the City shall not be liable to the franchisee for any
accident, personal injury, property damage or any claim or damage that may occur in the course
of construction, operation or maintenance by franchisee, its employees, agents, contractors,
sublessees or licensees of any of its facilities, except to the extent caused by the willful
misconduct or gross negligence of the City or its employees, contractors or agents. 'Nothing in
this agreement shall be construed to affect in any way the City's rights, privileges, and
immunities under the doctrine of "sovereign immunity" as set forth in section 768.28, Florida
Statutes.
Section 8. Indemnification. Franchisee agrees to indemnify, defend, and hold harmless
the City, its officers, agents and employees from and against any and all claims, suits, actions,
and causes of action, as well as the costs of removal, remediation and monitoring of a condition
of environmental contamination arising during the term of this franchise and resulting in
personal injury, loss of life, or damage to property sustained by any person or entity, caused by
or arising out of franchisee's (or its contractors', subcontractors' employees' or agents')
negligent construction, operation or maintenance of franchisee's solid waste collection system
facilities within the City, including all costs, attorneys' fees, expenses, including any appeal, and
including the investigations and defense of any action or proceeding and any order, judgment or
decree which may be entered in any action or proceeding, except to the extent caused by or
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arising out of the negligence, strict liability, intentional torts or criminal acts of the City, its
officers, agents, employees or contractors. In the event that a judgment covered by the foregoing
indemnity shall be rendered in any suit or action against the City, the franchisee shall either fully
satisfy or bond the judgment within sixty (60) days after the franchisee shall have received
written notice from the City of the judgment following the final determination of the suit or
action, if determined adversely to the City. If the franchisee shall fail to satisfy or bond the
judgment within the designated time period set forth in this agreement, then the failure shall be a
violation of this agreement subject to the notice and cure periods and remedies provided in
section 15 of this agreement. Nothing in this agreement shall be construed to affect in any way
the City's rights, privileges, and immunities under the doctrine of "sovereign immunity" as set
forth in section 768.28, Florida Statutes. The 'provisions of this section shall survive the
termination of this agreement. The City shall provide notice to Franchisee of any and all claims,
suits, made so that the Franchisee is provided the option to defent or participate.
Section 9. Insurance. The franchisee shall keep in full force and effect at all times
during the exercise of its franchise (1) comprehensive general liability insurance with a
minimum aggregate combined single limit of liability of $3,000,000 ; and (2) property damage
insurance with a minimum aggregate combined single limit of liability of $1,000,00. The terms
and conditions of these policies shall provide for the protection and indemnification of the City
with respect to claims of any persons suffering injury, loss or damage to person or property by
reason of the construction, operation or maintenance of the solid waste collection services. The
City shall be named as an additional insured. The franchisee shall hold the City harmless for any
premiums due, and to the extent covered by the franchisee's indemnity in section 8 above, the
amounts of deductibles or claims under the policies. A certificate of insurance shall be filed with
the City clerk or with the City risk manager if the franchisee is notified in writing of the name
and address of the risk manager. Every insurance policy shall contain a provision whereby every
company executing the policy shall obligate itself to notify the City clerk, in writing, at least 30
days prior to the effective date of any cancellation of the policy.
Business Automobile liability with minimum limits of Three Hundred Thousand Dollars
($300,000.00) per occurrence combined single limit for bodily Injury Liability and Property
Damage Liability. Coverage must be afforded on a -form no more restrictive than the latest
edition of Business Automobile Liability Policy, without restrictive endorsements, as filed by the
Insurance Services Office and must include: Owned Vehicles; Hired and Non -owned Vehicles;
and Employers' Non - Ownership; and Employers' Liability with a limit of One Hundred
Thousand Dollars ($100,000.00) each accident.
Worker's compensation Insurance to apply for all employees in compliance with the "Workers'
Compensation Law" of the State of Florida and all applicable federal laws.
If any operations are to be undertaken on or about navigable waters, coverage must be included
for the US Longshoremen & Harbor Workers Act and Jones Act.
Each insurance policy shall be subject to the reasonable acceptance and approval of the City
attorney. Any primary insurance policy must be issued by an insurance company having a rating
of B +: VI or better in Best Insurance Guide. Any excess policy used must be issued by
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underwriters reasonably acceptable to the City attorney. All insurance required hereunder may
be maintained by the franchisee, by an affiliate of the franchisee, by self - insurance or pursuant to
a master or so- called blanket policy of insurance.
Section 10. Franchisee's rules. Franchisee shall have the right to make and enforce
reasonable rules and regulations as it may deem necessary for providing its solid waste collection
services, and the prudent conduct of its business, provided that the rules and regulations shall not
be in conflict with the laws, rules, and other regulatory authorities of the City, or Miami -Dade
County, or the State of Florida.
Section 11. Accounts and records. The accounts and records of the franchisee
appertaining to solid waste collection service rendered hereunder shall be maintained as required
under applicable state and federal laws, rules and regulations in compliance with generally
accepted accounting methods, and be open at all reasonable times for inspection by the duly
authorized representatives of the City upon reasonable written advance notice as provided below.
The franchisee shall establish and maintain appropriate accounts and records in such detail that
revenues within the limits of the City are consistently declared separately from all other
revenues. All records shall be maintained for a minimum of three years, or longer if required by
applicable regulatory bodies other than the City. The City, by its duly authorized representative,
shall have ,the right during business hours, and upon reasonable advance notice (48 hours prior
written notice), to inspect and/or audit the books and records of the franchisee that evidence the
franchise fees and computations of franchise fee payments made by the franchisee to the City. If
the City decides to inspect franchisee's books and records, specifically franchise fee payments
made to the City and franchise fee computations, the franchisee shall permit a City representative
to review (upon 48 hours prior written notice) the pertinent portion of franchisee's books and
records including billing records at the franchisee's office where these records are housed, during
normal business hours, upon reasonable advance notice.
Information required of franchisee: At least annually, but not more frequently than
quarterly, as determined by the City, the franchisee shall supply the following information on a
form and in a manner prescribed by the finance director: a listing, as of the reporting date, of the
names and addresses of each customer, the addresses of each location serviced, and schedule of
rates charged by the franchisee.
Section 12. Franchise fee. In further consideration for the rights and privileges granted
under this agreement and the costs and obligations undertaken by the City (due to the use of the
City's streets, alleys, roadways, and other property, and for wear and tear) as a result of this
agreement; the franchisee agrees to pay to the City an annual fee of $5,000 ; plus a franchise fee
of 20 percent of the franchisees' gross receipts. from accounts within the City serviced by
franchisee. This fee shall be in addition to any occupational license taxes levied by the City
upon the franchisee's business activities. Notwithstanding the earlier execution of this
agreement, the franchise fee shall be effective beginning on the first day of the first calendar
month immediately following the execution of this'agreement (the "franchise fee commencement
date"). By way of example and not limitation, if this agreement is executed in February 2007,
then the franchise fee commencement date shall be March 1, 2007.
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The franchisee, by accepting the franchise, shall deliver to the City finance department a
true and correct statement of gross receipts generated during the previous month from its services
rendered with the City on or before the last day of each month. Payments of fees shall be made
on a monthly basis to the City finance department on or before the last day of each month,
representing gross receipts collected the previous month. The franchisee shall on or before 30
days following the close of each fiscal year deliver to the finance director a statement of its
annual gross receipts generated from accounts within the City prepared by an independent
certified public accountant reflecting gross receipts within the City for the preceding fiscal year.
For the purposes of confirming the franchise fee paid under this section, the franchisee
shall provide to the City the documentation specified in section 11 above supporting its gross
receipts for each month. The City shall have the right to conduct an independent review of the
books and records of the franchisee relating to the calculation of the franchisee fee, and shall
have the right to require an. audit of the franchisee's books and records, as provided above.
If any audit or examination discloses an underpayment to the City greater than twenty
(20) percent of a required payment, in addition to payment of the underpayment, the franchisee
shall pay for the expenses of the audit and a penalty equal to three (3) times the underpayment.
Otherwise, the City shall bear the cost of the audit. The underpayment shall be paid within
thirty (30) days after receipt of demand from the City. In the event that the franchisee overpays
to the City the amount of any franchise fees payable under this agreement or any utility or public
service tax, the City shall refund the amount of the overpayment to the franchisee within thirty
(30) days after delivery to the City of written notice of the overpayment, together with
reasonable documentation thereof.
Vehicle registration fees. Each and every franchisee shall pay, in addition to the fees
imposed herein, an annual vehicle registration fee which shall be in the amount of $25.00 for
each vehicle shown on the list required to be submitted as part of the franchise application. This
fee shall apply to renewals of registration, as well.
Permit per account fee. Franchisee agrees to remit to the City a permit, per account fee,
of $50.00 for each account contracted with, of which no more than $25.00 may passed on to
the commercial business.
Roll- off /container permit fee. Franchisee agrees to remit to the City a roll- off /container
permit fee in the amount of $50.00, per account, for temporary (not to exceed 90 days) roll -off
container(s) utilized by franchisee in the course of its provision of construction, renovation and
demolition material collection and disposal.
Section 13 City's power to revoke franchise amend regulations. The City reserves
unto itself the power to revoke all franchises granted, to change or limit the rights granted, or to
otherwise modify the franchises, in its sole discretion, by ordinance duly enacted by the City
commission. Such action shall not be deemed a taking of a property, contract, or other right of
any franchisee, it being the express intention of this section to reserve unto the City, the power,
in its sole discretion, to alter the methods of garbage collection employed in the City, and the
manner in which to service garbage collections delivered within the City. The City further
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reserves the power to amend chapter 11 of the City's code of ordinances, related to Garbage and
Trash, from time to time at the sole discretion of the City commission, and shall not be estopped
to do so, notwithstanding the grant of any franchise or franchises to any person.
Section 14. Annexation by City. Promptly after the City's annexation of any property,
the City shall provide the franchisee with written notice of the annexation. The notice shall
contain a description of the annexed property sufficient to enable the franchisee to determine
which, if any, of its consumers are located in the annexed territory. Beginning on the first day of
the next calendar quarter that occurs at least thirty (30) days after the franchisee receives a
written annexation notice from the City, the portion of the franchisee's solid waste collection
system that may be located within the annexed territory (including the streets, alleys or public
grounds located in the annexed territory) shall be subject to the terms of this franchise; provided
that, notwithstanding anything to the contrary, in the event that lands are annexed by the City and
the Miami -Dade County. Code or other applicable law provides for a retention of the franchise
fee generated from the lands annexed by the City or otherwise provides for the payment of the
franchise fee, then the franchise fee generated from consumers located on the lands shall instead
be paid as provided by the law.
Section 15. Default and termination. (1) hny material violation by the franchisee of any
of the covenants, terms and conditions of this agreement, or material default by the franchisee in
observing or carrying into effect any of the covenant" ,11 firms and, " conditions of this agreement,
shall authorize and empower the City to termirAate s agreement and all rights hereunder,
provided, however, that before action by the City shall become operative and effective, the
franchisee shall have been served by the City with a written notice setting forth all matters
pertinent to the violation or default, and describing the action of the City with respect thereto,
and franchisee shall have had a period of five days after service of the notice within which to
cure the violation or default; provided that if the violation or default is not susceptible of cure
within five days, the franchisee shall have additional time as is reasonably necessary to cure the
violation or default so long as franchisee has commenced to cure the violation or default within
the five day period and thereafter is diligently prosecuting the cure to completion and provided.
The City may extend that period upon appropriate representations and assurances by the
franchisee that corrections are being made. However, any extension will not be considered or
deemed a' waiver by the City of franchisee's lack of compliance. The City may allow
continuation of this agreement for as long as the. City deems appropriate, despite a breach or
forfeiture as described in this section, in order to ensure continuation of service to consumers.
Continuation of the arrangement will not be deemed a waiver of the City's claim of a breach or
forfeiture. In the event that the franchisee, upon receipt of the written notice from the City, does
not desist from the violation within the time prescribed above, then the franchisee shall be
deemed to have forfeited, and annulled all of franchisee's franchise, grants, privileges, rights
licenses and immunities granted under this agreement. The franchisee is required to make every
reasonable effort to maintain operation and service at all times even in the event of any work
stoppage by its employees. The finance director's five day prior written notice shall provide the
franchisee an opportunity to dispute the finance director's findings. The finance director shall
provide the franchisee an opportunity for an informal hearing, if requested within five days of
receipt of the deficiency findings /default. In the event the franchisee disputes the decision of the
finance director, the franchisee may appeal such decision directly to the City Commission.
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(2) Nothing in this agreement shall limit or restrict any legal rights that the City may
possess arising from any alleged violation of this agreement;` provided that in the event of a
conflict between any other rights and the provisions of this section 15, the provisions of this
section 15 (including, without limitation, the franchisee's cure rights set forth in this section 15)
shall control.
(3) Non- payment by the franchisee of fees or failure to file the required report shall
be grounds for termination, after ten (10)days' prior written notice, without hearing before the
finance director.
(4) Any decision of the finance director under this section, with the exception of
subsection 3 above, may be required upon written request by the aggrieved franchisee to the City
manager. Notice of appeal should be filed in writing with the finance director no more than ten
days after receipt of written notice that the franchise with franchisee is terminated by the City.
(5) The City manager shall set the date and time for hearing the appeal. The hearing
shall be held not less than 14 or no more than 60 days after receipt of the notice of appeal. The
City manager or his/her designee shall either affirm the decision of the director or direct the
director to issue or reinstate the franchise, with or without conditions.
(6) Franchisee shall comply with section 11 -16, of the City's code of ordinances
entitled «Enforcement and administrative fines «, which code section is incorporated by
reference into this agreement.
Section 16. Insolvency or bankruptcy of franchisee. In the event of a final adjudication
of bankruptcy of the franchisee, the City shall have full power and authority to terminate, revoke
and cancel any and all rights granted under the provisions of this agreement.
Section 17. Changes in provisions of this agreement. No amendment, modification,
waiver or discharge of this agreement, or any subpart (including, without limitation, this
sentence) shall be valid or effective unless in writing and signed by the party against whom
enforcement of the amendment, modification, waiver or discharge is sought and then only to the
extent set forth in writing. Minor changes in the terms and conditions of this agreement may be
made by written agreement between the City and the franchisee without the approval of the City
commission, provided, however, that this section shall not be construed as conferring authority to
make any changes in or modifications of the provisions of this agreement which would be
repugnant to or inconsistent with basic factors or .principles underlying the terms and conditions
of this agreement, unless agreed to in writing 'by the franchisee and approved by the City
commission.
Section 18. Limitation of liability for breach of contract. Nothing contained in this
agreement is in any way intended to be a waiver of the limitation placed upon the City's liability
as set forth in section 768.28, Florida Statutes.
Section 19. No third -party rights. It is the express intent of the City and the franchisee
that neither this agreement nor any of its provisions shall create any rights in third - parties.
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Section 20. Franchisee as independent contractor. When performing under this
agreement, the franchisee's status shall be that of an independent contractor and not an agent,
servant, employee or representative of the City in the performance of work pursuant to this
agreement. No term or provision of this agreement, or act of the franchisee (or its employees,
contractors, or subcontractors) shall be construed as changing this status.
Section 21. Revealing section. ction. Alll ordinances or parts of ordinances in conflict with the
provisions of this agreement are repealed.
Section 22. Saving_ provision. If any term, condition, provision, section, part of section,
paragraph, sentence or clause of this agreement, to any extent, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable ( "impaired provision ") the remaining terms,
conditions and provisions shall remain valid in all other respects and continue to be effective.
With respect to the impaired provision, the City and the franchisee shall enter into good faith
negotiations and proceed with due diligence to draft a term, condition or provision that will
achieve the original intent of the parties to this agreement. In the event of a subsequent change
in applicable law so that the impaired provision is no longer impaired, and the impaired
provision. has not been renegotiated by mutual agreement of the City and the franchisee, upon
reasonable notice by the City, that provision shall return to full force and effect without further
action by the City and shall thereafter be binding on the franchisee and the City.
Section 23. Mediation. Any claim or dispute arising out of or related to this agreement
shall be subject to informal mediation as a condition precedent to the institution of legal or
equitable proceedings by either party to this agreement. Both parties waive any right to
arbitration. The parties shall share the mediator's fee and any filing fees equally. The mediation
shall be held in Miami -Dade County, Florida, unless another location is mutually agreed upon.
Contracts reached in mediation shall be enforceable as settlement contracts in the circuit court
for the 11'' Judicial Circuit for the State of Florida.'
Section 24. Jurisdiction and venue. For the purposes of this agreement, Florida law shall
govern the terms of this agreement. Venue shall be in Miami -Dade County, Florida.
Section 25. Right of the City to intervene. The City reserves to itself the right to
intervene in any suit, action or proceeding involving any provision of this agreement. Franchisee
agrees to advise the City of any suits.
Section 26. Attorneys' fees. Except as otherwise provided, the City and the franchisee
agree that if litigation becomes necessary to enforce any of the obligations, terms, and conditions
of this franchise, the prevailing party shall be entitled to recover a reasonable amount of
attorneys' fees and court costs, including paralegal costs, and fees and costs on appeal, from the
non- prevailing party. However, in no event shall either party be held liable for prejudgment
interest.
Section 27. Warranty of authority The signatories to this agreement warrant that they
are duly authorized by action of their respective City commission, board of directors or other
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authority to execute this agreement and to bind the party on whose behalf the signatory signed
this agreement to the promises, terms, conditions and warranties contained in this agreement.
Section 28. Entire agreement. This agreement contains the entire agreement between the
parties with respect to the subject matter of this agreement and supersedes any and all prior and
contemporaneous negotiations, representations, understandings and agreements, whether written
or oral, all of which are merged into this agreement.
Section 29. Headings. The headings of sections and subsections of this agreement are
for convenience of reference only and are not intended to restrict, affect, or be of any weight in
the interpretation or construction of the provisions of sections or subsections.
Section 30. No waiver. Neither the City nor the franchisee shall be excused from
complying with any of the terms and conditions of this agreement by any failure of the other
(including its affiliates, employers, or agents) to insist upon or seek compliance with any term or
condition. Waiver of a condition in this agreement may solely occur upon the express written
approval of the party against whom enforcement of the waiver is sought, as provided for in
section 22.
Section 31. Construction of this agreement. This agreement has been prepared by the
parties and was thoroughly reviewed and extensively modified during negotiations between the
City and the franchisee and their respective legal counsel The parties agree that this document
is a product of all of their efforts, that it expresses their mutual understandings, and that it should
not be interpreted in favor of either party or against either of them merely because of the parties'
initial efforts in preparing it. Each party shall bear its own costs to draft and negotiate this
agreement.
Section 32. Notices. All notices, demands, requests, consents, approvals or other
communications (collectively, "notices ") required or permitted to be given hereunder or which
are given with respect to this agreement shall be . effective only if in writing and delivered by
personal service, or delivered to an overnight courier service with guaranteed next day delivery
or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as
follows:
To the franchisee: Waste Services of Florida, Inc.
5002 T-Rex Avenue
Suite 200
Boca Raton, hL 33431
Attention: Mr. Vahe Gabriel
with a copy to: Alan L. Gabriel, Esq.
Weiss Serota Helfman, et al, P.A.
200 East Broward Boulevard
Suite 1900
Ft. Lauderdale, Florida 33301
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To the City: Yvonne Soler McKinley, City Manager
City of South,Miami
_6130 Sunset Drive
South Miami, Florida 33143
with a copy to: Luis R. Figueredo, City Attorney
Nagin Gallop Figueredo, P.A.
18001 Old Cutler Road, Suite 556
Palmetto Bay, Florida 33157
or to the other address as the party shall have specified most recently by like notice. The
attorneys for the parties to this agreement are respectively authorized to give any notice
permitted under this agreement. Any notice given as provided under this section shall be deemed
received as follows: if delivered by personal service, on the date so delivered; if delivered to an
overnight courier service, on the business day immediately following delivery to 'service; and if
mailed, on the third business day after mailing.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date first
written above.
ATTEST: CITY OF SOUTH MIAMI,
a Florida municipal corporation
By:
City Clerk Name: Yvonne Soler McKinley
Its: City Manager
Approved as to form:
Luis R. Figueredo,
Nagin Gallop & Figueredo, P.A.
Office of City Attorney
WITNESS: Waste Services of Florida, Inc.,a
Delaware Corporation
By:
Witness to sign above Name:
Print Name: Its:
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I
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami -Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI -DADE:
Before the undersigned authority personally appeared
SOOKIE WILLIAMS, who on oath says that he or she is the
VICE PRESIDENT, Legal Notices of the Miami Daily Business
Review f /k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami -Dade
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARING 5/1/07
in the XXXX Court,
was published in said newspaper in the issues of
04/20/2007
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami -Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami -Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami -Dade County, Florida, for a
period of one year next preceding the first publication of the
attache yof advertisement; and affiant further says that he or
she s neit er paid nor promised any person, firm or corporation
an discou , rebate, commission or refund for the purpose
of ecurin this advertisement for p ublication in the said
ne pa r.
Sworn to and subscribed before me this
20 day of APRIL A.D. 2007
o_
(SEAL)
SOOKIE WILLIAMS personally known to me
x.00 Cheryl H Marmer
V* My Commission DD338689
°� or nom Expires July 18, 2008