Agreement with Waste Services of Florida Inc.,~QDd'_ a~9~3
NON-F,XCLUSI~'E FRANCHISE WASTF, CONTRACTOR AGREEMENT
BF.TVVF.EN
C:ITY OF !III A~II BF,ACH, FLORIDA (CITY
ANll
~i'ASTE SERVICES OF FLORIDA, INC. (FRAYCHISEE)
FOR
RESIDENTIAL AND CO'~iAIERCIAL WASTE COLLECTION .AVD
DISPOSAL AS YVELL AS FOR RECYCLING SEKVICF,S FOR hIULTI-
FAVIILY RESIDENCF,S WITH EIGIiT (8) OR h90RF, itvITS IN THE CITY OF
YtIAVII BCACH, FLORIDA.
RECTI:~LS
The City of Miami Beach, Florida, does hcrcbv t3nd, determine and declare as follo~es:
(a) That it is in the public interest to ensure that all areas within the City limits are
adequately provided with high-quality solid waste collection and disposal
service.
(h) That it is in the public interest W retaut regulatory authority over solid waste
collection and disposal, to the extent allowed by Iat+•, because of the overriding
public health, safety and wcllare considerations associated with the provision of
this service.
(e) That it is in the public interest to retain control over the use of public right-of'-
way by solid waste collectors to ensttrc against interference with the public
convenience, to promote aesthetic considerations, and to protect the public
investment inright-of-way property.
(d) That it is in the public interest to attract high-quality solid waste collectors.
(e) That it is in the public interest to ensure that high-quality solid waste collection
and disposal service is main><~ined through a responsive complaint handling
procedure.
(f) 'that it is also in the public interest for solid waste collectors to offer and
directly provide recycling services to their clients
(g) That the granting of anon-exclusive franchise is the best means of assuring that
the above-described interests of the City oI•Miami Beach arc promoted.
(h) That, pursuant to Section 90-230 of tktc Miami Beach City Code, the City
Commission may elect to renew the licenses for solid waste collection and
disposal, and Hots also including recycling services; currently gR:uued to its four
(4) franchise waste contractors; said licenses' franchise agreements expired on
October 1. 2008 and, pursuant to further action by the City Commission, have
continued on a month to month extension.
(i) 1•hat; at its regular meeting on October 7. 2008, the A~tayor attd City
Commission adopted Resolution No. 2008-26923, which approved [hc renewal
of the City's existing franchise waste contractors for collection and disposal of
solid waste, and no+v also for the provision of recycling services, within the
City.
(I) That, as a condition of renewal of their franchise agreements, the Citys
franchise waste contractors further ag~•eed to negotiate and execute new
individual service agreements with the City, providing for the provision ol•
additional public waste collective and disposal and recycling services.
(k) That the Franchisee has indicated to the City that it is ready, willing, and able to
provide the aforestated services within the City ul" Miami Beach, in accordance
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with the provisions contained witltin the following Franchise Agreement and
with Chapter 90 of the City Code.
NO~V TFIP:REFORE, City and Franchisee, in consideration of the mutual covenants
herein contained. asrce as follows:
SECTION 1. llF.FINITIONS
For the purposes of this Agreement, the following words shall have the following
m~•~ttings:
`'Chapter 90 of the City Code" shall mean Chapter 90 of the Ivliarni Beach City Code
(the City Code), as same may be amended from time to time.
"City" shall mean [he City of ~~iami Beach, Florida.
"City Commission'' shall mean the elected officials of the City of Ntiarni Beach,
Florida.
"City lvianager" shall mean the chief operating officer of the City or his authorised
designee.
"Franchisee" shall mean \A'astc Services of Florida, Inc., which is hereby ~•anted this
franchise and has hereby agreed to undertake and perform each and every obligation as set
forth in this Agreement.
"Service Agreement" shall mean the certain agreement betaccn the City and
Franchisee fbr the provision of additional solid waste collection and disposal and recycling
services at certain Cih owned facilities and properties. 1'he Service Agreement is intended to
have a term that will run concur-ent with the term of the franchise and this Agreement.
Gxccution of the Service Agreement by City and Franchisee is a condition of the Franchise
Agreement.
Anv other words or terms used herein which arc not dclincd in this Section shall have
their normal dictionary meaning and customary usage unless such terms are dclincd in Chapter
90 of the City Code. in which case they shall have the meaning set forth therein.
SF.CTiOY 2. GI21U~T OF FR1I~CIIISE
Pursuant to Chapter 90 of the City C:ode> which authorizes the granting of franchises for
the purposes set li~rth herein, Franchisee is hereby granted a [ianchise, including every right
and privilege appertaining thereto (except as othenvisc limited by Chapter 90 of the Cit}• Code,
andior by present or future Federal, Stale and County ordinances and laws), W operate and
maintain a solid waste collection attd disposal service, and also to provide such recycling
services as contemplated in Section 90-231 of the City Code, in, upon, over and across the
present and future streets, alleys, bridges, casements and other ]niblic right-of-ways,
property(ies), and.~or facilit}•(ies) within the limits of the Cit}• of Ivliami Beach, Florida> for tic
pu~ose of collecting and disposing of solid waste, and for the purpose of providing recycling
services as contemplated in Section 90-231 of the City Codc> generated by the citizens,
residents, inhabitants, business enterprises and other entities therein. Except Ii~r Rccyclablc
Material otterwise provided fvr pursuant to Chapter 90 of the City Code, and/or by present or
future Federal, Staic or County ordinances and laws, Franchisee is hereby granted title to all of
such solid waste generated within said boundaries, insular as the City can estahlish its fecal
right to make such Brant of title.
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SECTION 3. GEOGRAPHICAL LI~4ITS OF THE FR,aNCHISE
T7tc area covered by this franchise is the city limits vl' the City of Miami Beach,
Florida, as they are now located and any areas which may at some future time be incorporated
into the City. Franchisee agrees that the limits of the franchise are subject to expansion or
reduction by atmehation and contraction of municipal boundaries and that Franchisee has no
vested rightin a specific area.
SECTION ~. TERb7
The term of this franchise shall be deemed to have commenced (retroactively) on
October 1.2008, which shall he the ellective date of this .Agreement. The franchise shall be
granted for an itutial period of three (_) }-cars from the effective date. unless sooner terminated
by rea•ocativn ol'the franchise, as provided in Chapter 90 of the City Code. rat the e?:piration or
earlier revocation of the franchise, the City Commission may choose, in its sole discretion, to
accept applications for ne. franchise waste contract licenses, as provided in Chapter 9(l of the
City Code or, in the alternative, may renew this franchise for an additional tlu•ee (3) year term.
In deciding wfielher to issue a new franchise to a different franchisee, or to accept a franchise
application from the current Franchisee for renewal of this Iranchise, the City Commission
shall follow the criteria and procedures set Ibrih in Sections 90-229 and 90-230 of the City
Code.
SECTION 5. FRANCHISE COVSIDERATIOY
For a period of one year after the effective date of this franchise, the Franchisee shall
pay to the City a franchise fee consisting of eighteen percent (18%) of said Franchisee's total
monthly grass receipts. Thereafter; the City shall have the option of raising the franchise fcc,
as provided in Seclion 90-221 of the City Code. The term "gross receipts', as used in this
Section 6, shall be as defined in Section 90-221 ol'the City Code.
Gross Receipts from servicing rolloff containers arc not included under the franchisc
fee due to the City, and shall be subject to separate fees, as set forth in Section 90-276 of the
City Codc.
I'aymcnt of the franchise fee shall me made monthly in accordance with Section 91-22
of the City Code. In addition to payment ol'the franchisc fee, the Franchisee shall also pay an
amount equal to (2%) of its total annual gross receipts, to be applied by the City toward the
establishment, implementation, and operation of a public right-of=way cleaning program,
which shall be operated through the City's Sanitation Department. The Franchisee shall, on or
beR~re thirty (30) days li~llowing the close of its fiscal year, and in any event no later than
February ] ~`~', deliver to the City (\9anager a statement of its annual gross receipts, certified by
an independent cenilied public accountant, rct7ceting gross receipts generated wit}tin the City
for the preceding fiscal year. 1'aymcnt of this amount shall be made monthly to the City's
Chief Financial Officer, on or belitre the last day of each month.
SECTION 6. ASSIG\'AIEN'T
"1'he rights herein granted to the Franchisee, and arty licenses granted to the Franchisee
by the City, shall not be assigned by the Franchisee except with the express prior approval of
the City Commission, attd as provided in Seclion 90-191(fl of the City Code.
In the event ol'such assi~tntent. Franchisee shall cause its assignee to execute an
agreement of acceptance, subject to the approval of the Cily A~lanager, evidencing that such
assignee accepts the assigtuncnt subject to any and all terms, conditions and limitations
unposed hereby, and which acceptance shall include an affirmative statement evidencing such
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assigttec`s intent to lullill the obligations imposed upon Franchisee herein. Nohuithstanding
the City's approval of the assigtvncnt and assignee's acceptance, Franchisee shall guarantee the
performance of its assignee and such assignment shall always be with frill recourse to
hranchiscc.
SF,CTION 7. BANKRUPTCI' OR 1NSOLVENCV
If the Franchisee becomes insolvent, this franchise shall terminate. if the Franchisee
Liles a petition of voluntary bankruptcy, or in the event of im•oluntary bankruptcy, this
franchise shall terminate no later than the date of Liling of the batkruptcy petition.
SF,CTION 8. 1VllEh1N1FICATION ANU INSUR,aNCF•
Franchisee ftcrcby agrees to indentnifi~. hold harmless and defend the City. its officers,
employees, agents and contractors against, and assumes all liability for, any and all claims,
suits, actimts, damages, liabilities, espenditures, or causes of actions, of any kind, arising from
Franchisee's, and.'or its officers; employees, agents, and contractors, activities and:`or the use of
the public streets and.~or other Cit}• property or right-of-ways, for the purposes authorired in
this franchise and in Chapter 90 of the City Code. and resulting or accruinc from any
negligence, act, omission or enor of the Franchisee, and!or its officers, agents, employees and
contractors, and:'or arising from the failure of Franchisee; to comply with each and every
covenant of this franchise; or ~~•ith Chapter 90 of the City Code, or with any other Federal,
State, County and,•'or City ordinance, law, or regulation applicable to Franchisee's activities,
resulting in or relating to bodily htjurp, loss of life or limb, or damage to property sustained by
any person, property, Finn, corporation (or other business entity). Franclsee hereby agrees to
hold City, its ollicers, employees, agents and contractors, harmless from attd acainst all
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judgments, orders, decrees, attorney's fees, costs, expenses and liabilities incurred in and about
any such claim, investigation or defense thcrcol', which may be entered, incurred or assessed as
a result of the foregoing. Franchisee shall defend, at its sole cost and expense, any legal action,
claim or proceeding instituted by any person against the City, its officers, employees, agents or
contractors, as a result of any claim, suit or cause of action accruing from activities authorired
by this franchise, R>r injuries to body, limb or property as set forth above.
Franchisee agrees to maintain in full tbrce and effect throughout the entire Term of the
franchise; the insurance coverages set forth in Section 90-191 of the City Code. Franchisee
further agrees that the City ?v1anager may increase the kinds and amounts of insurance coverage
required il', in his sole reasonable •judgment and discretion, he deems such increase necessary to
protect the City.
Operation of activities by the Franchisee vrithout the required insurance shall be
grounds tier revocation o1'the franchise.
SECTION 9. C'0~1PLL•ANCE ~VI'fH ORDINA\CES. RULES. LA1'!•'S
Franchisee shall he solely responsible for keeping and maintaining itself fully inforncd
with all Federal, State, County and Cit}° ordinances (uicluding, without limitation, Chapter 90
of the City Code), laws, rules, regulatimis, and all orders and decrees of bodies or tribunals
having jurisdiction or authority, which in any manner affect its activities and this lianchise, or
which in any way al'lect the conduct of its work (collectively, the aforestated are referred to as
the applicable Laws). Franchisee shall at all times observe and comply with all Applicable
Laws. Additionally, Franchisee shall he solely responsible for obtaining and maintaining
current and in good standing any licenses and permits required under Applicable Lai+~s to
conduct its business(es) and activities under the franchise.
SECTION 10. REVOCATION OF FRANCHISE.
Failure on the part of Franchisee to comp(} in any material way with the provisions of
this Franchise Agreement. Chapter 90 of the Cih Code, or other Applicable La~~s, shall be
grounds for revocation or termination of the franchise. which termination shall be in
accordance with Section 90-23 ± of the City Codc, and shall he effective upon tvritlen notice to
1•'ranchisee.
SF,CTION I1. REPOR'1'IN(U, ACCOUITINC; Ai:DiT
Franchisee shall keep an accurate set of books and records in accordance with general
accounting principles; rellecting the gross revenues derived under and pursuant to the franchise
rights granted herein. "fhe City shall have the right to audit Franchisee's books attd records. as
provided in Section 9p-224 of the City Codc.
SECTI0~1 12. COLLECTION EOIi1P)ViF.YT
Franchisee shall have on hand, at all times during the Term of the franchise, suYlicicnt
persomtcl and equipment to permit Franchisee to fully; adequately and efficiently perform its
duties herewnder. Collection equipment shall be kept clean. sanitary. and neat in appearance,
and in good repair and working order at all times. 'fhe Franchisee shall at all times have
available to it resen~c equipment. which can be put into service and operation within hvo (2)
hours of any breakdo~~m. Such reserve equipment shall substantially correspond in size and
capability to the equipment normally used by Franchisee to perform its duties hereunder.
SF.CTiON 13. DISPOSAL
All solid waste shall be hauled to sites or facilities legalh empowered to accept it for
treatment or disposal. The City reserves the right to approve or disapprove sifts, taking into
account all govenmtental regulations, routes within the franchise area, and the Hiles attd
regulations of the governmental body having jurisdiction over said sites or facilities
SEC"TION 14. COLLECTIO\ SERVICES ANll OPERATIONS
F'ranchisee's procedures fitr collection of solid waste shall be in keeping with all
provisions of Chapter 90 of the City Code and other Applicable Laws.
SECI10'~ 1 ~. STORI\1S AND OTHER EMEKGENCIES
In case of an unusually severe storm, and;'or other extreme acts of weather (i.e.
including, without limitation, tropical storms, u-opical depressions, hurricanes, floods,
tornadoes, etc.), or disruption caused by other emergencies not caused by Franchisee, the Ciq
~danager may grant Franchisee reasonable variance fiotn its regular schedules. .4s soon as
practicable after such storm, act of weather, or other emergency, Franchisee shall inform the
City of the estimated time reyuired before regular schedules and routes can he resumed and,
upon reyuest of the Cih° Manager and in such form as determined by the City Vfanager,
1'ranchisec shall provide notice of same to its commercial and residential (multi-family) clients
in the franchise area. In event of a storm, act of weather, or other emergency requiring mass
clean-up operations, Franchisee shall, upon direction of the Cih~ Manager, participate in said
clean-up, to the extent directed by the City Manger. Franchisee shall be compensated by the
City, in the amount of actual costs, plus aveh•e percent (12%) of said costs, and shall be
excused from conducting regular services, as and to the extent approved by the City Manager.
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Any expense incurred or revenue received under this Section 1 ~ shall not be included or
considered in rate base calculations.
SECTION iG. NON-WAIVER
The failure by [hc City at any time to require performance by the I•Yattchiscc of any
provision hcrcot; or of Chapter 90 of the City Code, or of any other Applicable Lae~s, shall not
in any respect limit, prejudice, dimituislt, or constitute a waiver of any rights of the City
thereafter to enforce same, nor shall waiver by the City of any breach of any provision of the
Franchise .Alaeement, or of Chapter 90, or of any other Applicable Laws, be taken or held to be
a 4vaiver of the City's rights to enforce or take action against any such succeeding breach (of
such provision), or as waiver of any provision itself.
SF,CTiON 17. CONTI)\UCD OYEKATIONS DiTRITC DISYU'1'ES
In the event that a dispute arises between the City and Franchisee (or any other
interested party) in any wa}• relating to this franchise (including performance or compensation
hereunder). the Franchisee shall continue to perli~rm hereunder and to render sen•ice in full
compliance evith all teens and conditions of the Franchise Agreement, regardless of the nature
of the dispute.
Franchisee expressly recognizes the paratnount right and duly of the City to provide
adequate waste collection and disposal see ices as a necessary covcrnmcntal function, and
litrther agrees, as consideration tin the City's approval and execution of this Franchise
~lgrcement that, in the event of a dispute, said Franchisee will not cease: performance or stop
sen'icc during the pendency of any such dispute.
SECTION 18. HANllL1~G OF GOMPLAII\"I'S
Franchisee shall he bound by Chapter 90 ol'the City Code caith regard to handling of
complaints lnnn its patrats.
SECTIO\ 19. NONDISCRIIIIINATION
The hranchisee a~ees that it has adopted and will maintain and enforce a policy of
nondiscrimination on the basis of race, color, religion, sex, age, handicap, disability, sexual
orientation, or national origin. Said nondiscrimination policy shall apply to emplo}~nent
practices ol'the Franchisee and the provision of services. The Franchisee agrees that, upon
taritten request from the City Manager, it will permit access to its records of employment,
employment advertisements, application forms, and other pertinent data and records, by the
City for the purposes of investigation to ascertain compliance with the non-discrimination
provisions of this Section: proridcd, however, that Franchisee shall not be required to produce
for inspection an}- records coverine any period of time more than two (2) years prior to the
effective date ofthis franchise.
SECTION 20. F.XF.yiPTION "1'O PRO~`IDF. FOR Kl/CYCLING
Notwithstanding any other provision of this Franchise Agreement, or of Chapter 90 of
the City Code (including without limitation Sections 9U-22] through 90-231 of the City Code),
until such time as the City establishes recycling requirements (br multi-family and commercial
establislunents, the City i4tanacer Wray continue to license individual recycling conu-actors
pursuant to Sections 9U-306 through 90-332 of the City Code.
Additionally, if the City Commission decides at any time to establish a Citywide
recycling program for multi-family and!or commercial establishments, or enacts an ordinance
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requiring conuncrcial esWblishtuents andror multi-family residences lu recycle, the City
Manager andror the City Commission (as the case may be) may take such action as prescribed
in Section 90 ?32 (b) of the City Code t~~ith regard to the provision of said recycling sen ices.
In the event the City mandates recycling for multi-Y~tmily and/or contntercial
establishments and Franchisee cleats not to enter into agreement with the City to provide the
reyuired recycling services, then Pranchisce, as reyuired pursuant to Section 90-232 (c) of'the
Cit}• Code, shall inunediatcly nobly the accounts it services, in writing, utforming those
accounts that they may, within sixty (60) days of receipt of the notice, elect io terminate their
then-existing contracts with Franchisee.
SliC'I'ION 21.
Notwithstanding Section 20 hereof, and in accordance with the provisions of Section
90-2.31 of the City Code, franchisee shall. during the "fcnn of this franchise, comply with the
li>llo~~•inc recycling requirements:
l 1) Franchisee shall, as a condition o1' [he franchise, be required to otter
directly, or to provide a subcontractor for, those recycling serv:ices reyuired
pursuant to Miami-Dade County Code, for any multi-family residence with
eight (8) or more units I'or which Pranchisce provides solid waste services
(as a franchise waste contractor).
(2) :111 of Iianchisec's contracts (within the _jurisdictianal limits of the City of
Miami Beach) with multi-family residences for waste removal services,
shall also include a proposal to provide those recycling services required
pursuant to 1~fiami-Dade County Code. Such recycling; proposal shall he
specificalh• made to maximize the recycling activity at each multi-family
l3
residence. Such proposal shall provide for sufficient flexibility in recyclable
materials container size and location, as is both necessary and consistent for
that specific multi-fatnily residence.
(3) Whether directly provided, or subcontracted ++-ilh a qualified recycling
contractor, each multi-funily residence recycling proposal shall reduire
Franchisee to disclose to the contract holder the savings ol)set that is
anticipated li-om the Franchisee's +aaste hauling agreement with the multi-
fantih~ residence, as a result of the provision of recycling services and the
reduction o1'solid waste disposed. The recycling proposal. and the required
savings offset there from, is strictly ++ithin the pun•iew of the Franchisee
and the individual multi-family residence to negotiate.
(4} For existing contracts fitr the removal of solid waste between Prutchisce and
multi-family residences (i.c. accounts existing as of the effective date oi'this
Franchisee Agrcetnent), Franchisee shalt amend said contracts to add a
requirement for recycling services consistent with this Section 21 surd the
provisions of Section 9G-231 (h) of the City Code. Existing contracts
between Franchisee and multi-family residences shall have a six (6} month
period. from the ef'f'ective date of this 1'ranchisc, to amend their agreements
to add the required recycling previsions.
SEC'170i\ 22. INVALIDITY - NO RIGHT OF .ACTIOI\
If this Franchisee Agreement, or any provisimt thereof; is tiwnd to be invalid or
wtconstinnional by any coon of competent jurisdiction, and.'or if Franchisee is prevented fmm
exercising its rights herewtder by present or future Federal, State, yr County ordinances or laws
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and Franchisee's rights under this Iranchise are materially impaired thereby. Franchisee shall
have no claim or cause of action against the City therelbre
SECTION 23. POWER TO RF,GI?LATE STREET'S
Nothing in this Agreement shall be consri-trcd as sun•cnder by Ciq of its right or power
to pass ordinances regulating the use of its streets. and%or other public right of ways, andior
public properties or facilities.
SECTION 24. ACCEPTANCE ON FRANCHISF.
This Franchise Agreement shall be filed with the Mianti Beach City Clerk within
hacnty (20) days after the date of approval of the franchise by the Mayor and Cih Commission
and execution by the parties hereto. Piling of a fully executed Franchise Agreement with the
City Clerk shall be deemed pruol'of Franchisee's acceptance of the franchise.
SECTION 25. (.(ri%ERNING LA~'1' AND EXCLi:SiVF. VENL?E
This l~ranchisee A},rreement shall be governed hy, and consh•ued in accordance with. the
laws of the State of Florida, both suhslantive and remedial, without regard to principles of
conflict of laws. "l~hc exclusive venue for any litigation arising out of this Agreement shall be
Miami - lladc County, Florida, if in State cotut, and the L:.S. District Court, Southern llisirict
of Florida, if in Federal court. BY F.NTF.RTNG INTO •fHIS A(iREEMF.NT, CITY AND
FRANCHISEE-: EXPRESSLY ~VAIVE•; i1NY RIGHTS F.ITHF,R PARTY MAY IIAV); TO :1
TRIAL 13Y JURY OF ANY CIVIL LITIGATION REL:ITED TO, OR ARISIT~G OL:T OF,
TTiTS AGKLLMI;NT.
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SECTION 2G. KO"1'1CE
:111 notices and communications in tv°riting required or permitted hereunder may
be delivered personally to the representatives of the Frattchisec and the City listed below or
may be mailed by registered mail, postage prepaid (or airmailed if addressed to art address
outside of the city of dispatch).
Until changed by notice in writing, all such notices and communications shall be
addressed as ti~llows:
1'O FRAYCHISF,F,: 4L'aste Services of Florida. Inc.
Attn:.toe Briarton
District Jdanagcr
3840 N.W. 37r~' Court
Miami, Florida 33 ] 42
(305)638-3800
TO CI'T'Y: Ciri• of Miami Beach
Attn: Jorge M. Gonzalez
City )\4anater
1700 Convention Center Drive
Miami Beach, Florida 3 ~ 1;9
(305) 673-7010
R'ITH COP1~S TO: Cih of Miami Beach
Attn: fired Beckmann
Public Works Director
1700 Convention Center Drive
Miami Beach, Florida ±3139
(305) 673-7080
and
City of \dianti Beach
Attn: AlbertoLantora
Public R%orks Sanitation Director
1700 Convention Center Drive
Ntiami Beach, Florida 33139
(305) 673-7G1G
Notices hereunder shall be effective:
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If delivered personally. on delivery; if mailed to an address in the city of dispatch, on the da}
following the date mailed; and if mailed to an address outside the city of dispatch on the seventh
day following the date mailed.
IV WITNESS WHEKEOF, the panics hereto have caused this franchisee :lgrcemenl
w he executed by their appropriate otl7cials. as of the date first entered above.
FUK CiTi~ : C[TY OF h1LV~~Ii BEACH, FLORIDA
ATTEST:
City Clcrl. ! fi or i' `-'
FOR FKA~ICHISEE: ~~'ASTF. SEKVIC'F.S OF FLORIU~1, IVC.
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