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HomeMy WebLinkAbout1989-3220 YAKIMA VALLEY DISPOSAL, INC. FRANCHISE 0098.05001 MHD/totj/pjn 11/07/89-3 ORDINANCE NO. 3-D---)Z) AN ORDINANCE GRANTING TO YAKIMA VALLEY DISPOSAL, INC., A FRANCHISE TO COLLECT AND DISPOSE OF GARBAGE AND REFUSE ON CERTAIN PUBLIC STREETS IN THE CITY OF YAKIMA. WHEREAS, Yakima Valley Disposal, Inc. has operated a garbage collection and disposal business in Yakima County under Washington Utilities & Transportation Commission certification since March 13, 1963; and WHEREAS, the City of Yakima has annexed certain areas of Yakima County in which Yakima Valley Disposal, Inc. maintained 1111 said Washington Utilities & Transportation Commission certification to collect and dispose of garbage; and WHEREAS, RCW 35.13.280 states as follows: The annexation by any city of any territory • . . shall cancel, as of the effective date of such annexation, any franchise or permit theretofore granted to any person, firm or corporation by the State of Washington . . . authorizing or otherwise permitting the oper- ation of any public transportation, garbage collection and/or disposal or other similar public service or facility within the limits of the annexed territory, but the holder of any such franchise or permit cancelled pursuant to this franchise shall be forthwith granted by the annexing city a franchise to continue such business within the annexed territory for a term of not less than five (5) 6.- years from the date of issuance thereof, any annexing city, by franchise, peifflit or public operation, shall not extend similar or competing services to the annexed territory except upon a proper showing of inability or refusal of such person, firm or corporation to adequately service said annexed territory at a 1111 reasonable price: provided, That the provisions of this section shall not preclude MHD00457A -1- . , , • 1111 the purchase by annexing city of said franchise, business, or facilities at an agreed or negotiated price, or from acquiring the same by condemnation upon payment of damages, including a reasonable amount for the loss of the franchise or permit. In that event that any person, firm or corporation whose franchise or permit has been cancelled by the terms of this section shall suffer any measurable damages as a result of any annexation pursuant to provisions of the laws of above-mentioned, such person, flip' or corporation shall have a right of action against any city causing such damages. and WHEREAS, the City of Yakima acknowledges that under RCW 35.13.280, Yakima Valley Disposal, Inc.'s State certification to operate in any annexed area was effectively cancelled in that annexed area upon the effective date of annexation of that area; 1111 and WHEREAS, under the terms of RCW 35.13.280, the City of Yakima hereby elects to grant a franchise to Yakima Valley Disposal, Inc. to continue garbage and disposal service in said annexed areas; and WHEREAS, it is necessary and deemed advisable in the public interest to grant the franchise, as herein set forth for the collection and disposal of garbage; now, therefore, BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Grant. There is hereby granted to Yakima 1111 Valley Disposal, Inc. (hereinafter "Franchisee"), in accordance with RCW 35.13.280 an exclusive franchise to collect and dispose of certain garbage and refuse in certain areas of the City of Yakima, including all work incidental thereto, in accordance with 1111 the specific terms and for the consideration specifically set MHD00457A -2- , 1111 forth herein, and in accordance with that certain contract between the City of Yakima and Yakima Valley Disposal, Inc., entitled Franchise Agreement attached hereto and incorporated herein by this reference. Section 2. Definitions. As used in this ordinance, the following terms have the meanings set forth below: A. "Garbage" or "Refuse" means and includes all putrescible and nonputrescible solid and semi-solid wastes, including, but not limited to, rubbish, ashes, industrial wastes, swill, demolition and construc- tion wastes, and discarded commodities, except recyclable materials and special wastes, which are placed by customers of the Franchisee in appropriate bins, bags, cans or other receptacles for collection and disposal by the Franchisee. Provided, that "fruit refuse", as defined in II/I Section 4.16.210 of the Yakima Municipal Code, shall not be considered "garbage" or refuse". B. "Recyclable materials" means and includes those materials defined as recyclable by RCW 70.95.030 or identified as recyclable materials pursuant to the City's comprehensive waste plan once adopted, and which are placed by waste generators in appropriate bins, bags, cans or other receptacles for collection and disposal by a recycling business. C. "Business site" means a site coming within the definition of "business classification" under Section 4.16.140 of the Yakima City Code. D. "Residential site" means any site coming within the definition of "residential 11/1 classification" in Section 4.16.140 of the Yakima City Code. Section 3. Rates. Unless the City Council approves otherwise, rates shall not exceed rates charged by Franchisee in 11/1 adjacent or vicinal territories in which Franchisee operates MHD00457A -3- III under state certification in effect at the time the Franchise is granted. Section 4. Indemnity. In addition to and not in limitation of any other contractual indemnification obligation to which Franchisee binds itself, the Franchisee, by accepting this Franchise, hereby agrees for itself and its successors to release, indemnify, protect, defend and save harmless the City of Yakima and its elected and appointed officials, employees and agents from all claims, actions or damages of any kind and description which may occur to or be suffered by any person or persons, corporation or property arising, directly or indirectly, out of the operation of Franchisee's business, caused or III contributed thereto by Franchisee. With respect to the actions against the City by Franchisee's employees for injuries occurring while under employment of Franchisee and within the scope of such employment, Franchisee specifically waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees, and agrees that the obligation to indemnify, defend and hold harmless the City extends to any claim, demand or cause of action brought by or on behalf of any employee of Franchise, against the City, its officers, agents or employees; provided, however, that nothing herein shall be deemed to require the Franchisee to indemnify the 4110 City for injury to persons and/or property arising from the sole negligence of the City. In case of suit or action brought against the City for damages arising out of or by reason of any 4110 of the above mentioned causes Franchisee agrees to pay all City's MHD00457A -4- III cost of defense, including reasonable attorneys' fees and if judgment is rendered against the City in such suit or action, Franchisee will fully satisfy said judgment. Section 5. Insurance. Franchisee agrees to obtain and continuously maintain public liability and property damage insurance in an amount not less than $1,000,000 per person and $2,000,000 per occurrence and in a form approved by the City Attorney. The policy shall name the City of Yakima, its agents, elected and appointed officials, and employees as additionally named insureds; and the policy shall be primary to any other insurance available to any of the aforementioned. The Franchisee shall submit such evidence of insurance within fifteen (15) days 1111 after the effective date of this ordinance. The policy of insurance shall contain a provision that it will not be reduced or cancelled without at least thirty (30) days prior written notice to the City. The contract of insurance shall also specifically include contractual liability insurance affording coverage for the Franchisee's obligations contained in this ordinance. Section 6. Compensation. As compensation for the rights granted by the City to the Franchisee under this Ordinance, the Franchisee shall pay to the City, quarterly during the continuance of this Ordinance, a sum equal to six percent 1110 (6%) of all customers' cash receipts derived by the Franchisee in those areas taken into account under this Ordinance and the contract incorporated herein. Such compensation for each quarter 4110 shall be payable within fifteen (15) days after the end of such MHD00457A -5- III quarter. Notwithstanding the above, the City of Yakima agrees to offset such compensation for each quarter by the amount of the Business License Tax imposed upon Franchisee under Section 4.16.180 of the Yakima Municipal Code for those areas taken into account under this ordinance and the contract incorporated herein. Nothing shall be construed as limiting the City's power to raise, lower or repeal the Business License Tax imposed by Section 4.16.180. Section 7. Reporting. It shall be the Franchisee's duty to report, in writing, to the Public Works Director or his designee, any violations of the City's ordinances in respect to the condition and location of garbage cans, detachable containers 1111 and garbage units. The Public Works Director or his designee shall be sole and final judge as to such condition and location. Section 8. Employees to be Competent. All of Franchisee's employees operating vehicles or collecting refuse and garbage shall be competent and skilled in the performance of the work to which they may be assigned. Failure or delay in the performance of this contract due to the Franchisee's inability to obtain employees of the number and skill required shall constitute a default of the contract. Section 9. Employees to be Courteous, Etc.. The Franchisee shall require all employees to be courteous at all 1111 times and not to use loud or profane language and to do their work as quietly as possible. Section 10. Employees to Use Walks. Employees of 1111 Franchisee, in collecting garbage, refuse and certain other waste MHD00457A -6- III shall follow the regular walks for pedestrians while on private residential property, returning to the street or alley after replacing the empty cans. They shall also replace all garbage cans and covers and close all gates opened by them. All employees shall wear clean uniforms. Section 11. Employees Not to Trespass. Employees of Franchisee shall not trespass or loiter, cross property to adjoining premises, or meddle with property which does not concern them. If to facilitate collection, it is necessary to go on private residential property with vehicles, it shall be the responsibility of the Franchisee to obtain written permission of the customer. 1111 Section 12. Loading. Extra care shall be taken in the loading and transportation of garbage, refuse and other waste so that none of the material to be collected is left either on private property or on the streets or alleys. Any garbage, refuse or other waste left on private property or on streets or alleys by the Franchisee shall be cleaned up upon notice from the Public Works Director or his designee. The Franchisee shall be responsible for the cleaning of all debris, spilled or tracked on any street, alley or public place by any of its equipment, and if the Franchisee fails to clear the same within two hours after notice is given by the 1111 Public Works Director or his designee, the Public Works Director or his designee may cause such streets to be cleaned and charge the cost to the Franchisee. 1 11 1 MHD00457A -7- III Section 13. Emergency Collections. Adequate provisions shall be made by the Franchisee to provide special collections when garbage, refuse and other waste has not been collected during the regularly scheduled trip. Special pick-ups for missed collections shall be made by the Franchisee when ordered by the Public Works Director or his designee at no cost to the City or the occupant. If the Franchisee fails to provide a special pick-up within twenty-four (24) hours of notification by the Public Works Director or his designee. The Public Works Director or his designee may cause the work to be done by City Forces. The sum of Five Dollars ($5.00) or actual cost whichever is the greater, for each such pick-up shall be billed to the 1111 Franchisee. Section 14, Collection Equipment. In collecting garbage, refuse and other waste under this contract, the Franchisee shall use all metal, watertight, completely enclosed "packer" type bodies that are designed and manufactured for the collection of garbage and refuse and are capable of servicing detachable containers. The compacting mechanism in the body shall be capable of compressing the collected material to one-half (1/2) or less its original volume. The number and type collection vehicles furnished by the Franchisee shall be sufficient for the 1111 collection of all garbage, refuse and other waste. If there be any doubt by the Franchisee whether his proposed equipment is satisfactory or not, he should secure prior written approval from 1111 the Public Works Director or his designee. MHD00457A -8- 1111 Section 15. Method of Disposal. The Franchisee shall deliver, at its cost, garbage, refuse or other waste to a disposal site operated by Yakima County, the City of Yakima, or other qualified providers, or such other site or sites as shall be approved by or meet with the solid waste disposal site requirements of the Department of Ecology; Provided that the Franchisee shall not use any dump or solid waste disposal site which the City would be prohibited from using were the City to collect and dispose of garbage and refuse with its own employees. Franchisee shall at all times keep the City advised of the disposal site or disposal sites being used by Franchisee. Section 16. Cleaning Facilities. The Franchisee shall III provide adequate cleaning facilities approved as to type and location by Public Works Director or his designee and the Yakima County Health Department. All cleaning shall be done on a paved area which is curbed to prevent drainage to surrounding areas and which is provided with an approved catch basin which is connected to a sanitary sewer system, septic tank or holding tank acceptable to the City. These facilities shall be used for all washing and steam cleaning of equipment and be kept in a clean and sanitary condition. Section 17. Painting of Vehicles and Equipment. Collection vehicles shall be painted, numbered, shall have the 1111 Franchisee's name, phone number, and number of the vehicle painted in letters of contrasting color at least four inches high on each side of each vehicle. No advertising shall be peimitted 4111 other than the name of the Contractor. All vehicles shall be MHD00457A -9- III kept in a clean and sanitary condition, and all collection vehicles shall be steam cleaned, inside and out, at least once a week. Repainting of all vehicles shall be done not less than every one and one-half (1-1/2) years, or within thirty (30) days after the written notification by the Public Works Director or his designee. All detachable containers furnished by the Contractor shall be either painted or galvanized, shall display the Franchisee's name and telephone number and shall be kept in a clean and sanitary condition. Such containers as are provided by the Franchisee to food establishments shall be steam cleaned by the Franchisee as frequently as necessary or as to maintain them in a sanitary condition. III Section 18. Parking of Vehicles. The Franchisee shall not use property in or adjacent to that zoned as residence nor adjacent to the various disposal sites for the parking, standing, washing, cleaning, or storing of his vehicles or equipment without the approval of the Public Works Director or his designee. Areas used by the Franchisee for the storing, parking or repair of vehicles shall be kept in a clean and orderly condition. Section 19. Report and Maps. The Franchisee shall furnish an annual report, at the end of each calendar year, to III the Public Works Director, showing the number of loads of garbage, refuse and other waste hauled by him to the disposal site during the year, the approximate number of cubic yards per 1 11 0 MHD00457A -10- 1111 load and the total number of cubic yards of garbage, refuse or other waste hauled to the disposal site for each month. The Franchisee shall outline, on maps furnished by the City, the daily collection schedule for both residential and commercial. The Franchisee shall give not less than one week (7) days written notice to the Public Works Director or his designee of any change in the boundary of any route or the day and/or time of collection and the Franchisee shall be responsible for the notifying users of any changes at least one week prior to such change. Section 20. Franchisee's Office. The Franchisee shall be required to maintain an office within the City of Yakima or a 1111 location agreed upon by the Franchisee and the Public Works Director or his designee, provided with telephones and such personnel as may be necessary to take care of complaints, orders for special service, or to receive instruction. This office shall be in operation between the hours of 8:30 a.m. and 4:30 p.m. Monday through Friday. At such times as the office is closed a recorder shall be in operation. Section 21. Permits. The Franchisee shall take out and pay for any permits or licenses required by the City or any other governmental authority which may be required under this Franchise or other applicable federal, state or local 1111 regulation. Further the Franchisee shall be obligated to protect all public and private utilities whether occupying street or public and private property. If such utilities are damaged by 1111 reason of the Franchisee's operations under this contract, he MHD00457A -11- 1111 shall repair or replace same, or failing to do this promptly, the Public Works Director or his designee shall cause repairs or replacement to be made and the cost of doing so shall be billed to Franchisee monthly. Section 22. Performance Bond. Before the Franchise between the Franchisee and the City shall be valid or binding against the City of Yakima, the Franchisee shall furnish unto the City a proper performance bond to be approved by the City Attorney, conditioned that the Franchisee shall faithfully perform all the provisions and tellas of the Franchise and related documents and pay all laborers, mechanics and sub-contractors and materialmen, and all persons who shall supply such Franchisee III with provisions and supplies for the carrying on of such work; which bond shall be signed by the Franchisee and two or more good and sufficient Sureties or with Surety Company as Surety, and shall be in the amount of Ten Thousand Dollars ($10,000.00) which bond shall at all times be kept in full force and effect. Franchisee shall have the option to deposit Ten Thousand Dollars ($10,000.00) cash bond with the City. Any bond drawn upon by the City must be replenished by Franchisee with five (5) days' notice to Franchisee. Section 23. Franchisee to Make Examination. The Franchisee shall make its own examination, investigation and 1111 research regarding the proper method of doing the work, and all conditions affecting the work to be done, and the labor, equipment and materials needed thereon, the quantity of the work 1111 to be performed, and the areas under which Franchisee has been MHD00457A -12- III granted this Franchise to perform a service. The Franchisee agrees that it has satisfied itself by its own investigation and research regarding all of such conditions and that its conclusion to enter into the proposed Franchise is based upon such investigation and research, and that it shall make no claim against the City because of any of the estimates, statements or interpretations made by any officer or agent of the City which may prove to be in any respect erroneous. The Franchisee assumes the risk of all conditions foreseen or unforeseen and agrees to continue to work under whatever circumstances which may develop other than as herein provided. III Section 24. Holidays. Franchisee shall designate which Holidays it will observe and indicated the schedule it will work if the Holiday falls on a regular collection day. The change in the collection schedule must be published by the Franchisee, at least two weeks in advance of the change, in a newspaper with general circulation with the corporate limits of the City of Yakima. Designation of holidays will be in written form for posting at the City. Section 25. Recycling. If it is determined by the Public Works Director or his designee that any portion of the garbage and rubbish collected under this Franchise should be 1111 recycled or changes made in the method of collection, the Franchisee agrees to perform the required work and to comply with any plan adopted by the City whether under ordinance and/or as 1110 required by applicable state or federal statute or regulation. MHD00457A -13- 1111 Section 26. Local Improvements. The City reserves the right to construct any improvement or to permit any such construction in any street or alley in such manner as the corporate authorities may direct, which may have the effect for a time preventing the Franchisee from traveling its accustomed route or routes for collection. Franchisee shall, however, by whatever method its elects, continue to collect the garbage and rubbish to the same extent as though no interference existed upon the streets or alleys formerly traversed. This shall be done without extra costs to the City of Yakima or Franchisee's customers. Section 27. Hazardous Waste. Hazardous waste is not III included within the scope of this Franchise. Franchisee shall neither collect, transfer nor dispose of hazardous waste at any time while performing under this contract. Nothing herein is intended to prevent Franchisee from collecting, transporting and/or disposing of any hazardous waste in accordance with applicable federal and state requirements and regulations. Section 28. Junk or Salvage. All junk or salvage of any kind or nature collected by the Franchisee shall become its property and the Franchisee agrees to make proper provision for the disposition of any such junk or salvage as the case may be. Section 29. Franchisee to Maintain Accurate Records. 1111 Franchisee agrees and covenants to keep at all times accurate and complete records and accounts in writing, include route books indicating the collection from residential and commercial 1111 customers, as dictated by good accounting practices, and to allow MHD00457A -14- III the City, or its duly authorized representative or agent, reasonable and adequate access to any and all of said records, data, accounts, and Franchisee to furnish unto the City, upon its request, accurate copies or duplicates thereof, without charge. Section 30. Reservation of Rights. Rights granted herein shall be subject to and governed by this ordinance; provided, however, the City expressly reserves unto itself all its police power to adopt general ordinances necessary to protect the safety and health of the citizens of Yakima in relation to the rights herein granted. Section 31. Successors and Assigns. All of the provisions, conditions, regulations and requirements herein III contained shall be binding upon the successors and assigns of the Franchisee and all privileges of the Franchisee shall inure to its successors and assigns. Section 32. Assignment/Sale Prohibited. No sale, lease or assignment of this Franchise to another agency by the Franchisee shall be effective before and unless the Yakima City Council approves such sale, lease or assignment. Section 33. Revocation. In the event of a material violation of any of the provisions of this ordinance, the Franchise granted herein may be revoked or suspended by the City Council. Complaints for termination and/or suspension of this 1110 Franchise shall be filed with the Public Works Director and mailed to the Franchisee. Prior to any decision, the City Council shall conduct a hearing and at the conclusion thereof, 1110 may revoke or suspend the Franchise rights granted herein. MHD00457A -15- . . 1111 Section 34. Appeals. The decision of the City Council shall be final with respect to matters set forth in this ordinance. Any appeal of the Council's decision must be served and filed in Yakima County Superior Court within ten (10) days of the date of the City Council's decision. The person appealing such decision shall bear all costs of preparing and certifying the record of proceedings required by the Court. Section 35. Other Remedies. In addition to suspension and/or revocation, the City may enforce the terms of this Franchise by appropriate suit, including a suit for specific performance. In the event either party brings suit to enforce the terms of this Franchise, the prevailing party shall be 1111 awarded its costs, including reasonable attorneys' fees. Section 36. Other Franchises. As required by RCW 35.13.280, the City of Yakima will not grant competing garbage collection and removal franchises during the terms and in areas covered by these franchises. Section 37. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance. 1111 Section 38. Compliance with Yakima Municipal Code 4.16, et. seq. Franchisee agrees to comply with Yakima Municipal Code Chapter 4.16, et. seq., as now existing or as hereinafter 4111 amended. MHD00457A -16- 11/1 Section 39. Effective Date. This ordinance shall be in full force and effect thirty (30) days after passage and publication as provided by law, provided, that the Franchise granted herein shall not become effective until accepted by Franchisee. Franchisee shall signify acceptance of the terms of this Franchise by signing the original ordinance and attached Franchise Agreement within three working days of the passage of this Ordinance. PASSED BY THE CITY COUNCIL, signed and approved this 7th day of November, 1989. _ MAYOR ATTEST/AUTHENTICATED: III 2 ,e...-6,, cyvic.:. CITY CLERK, APPROVED AS TO FORM: OFFICE OF THE CIT * 'TTORNEY: 1 4 / BY /0 ____ F LED TH THE CITY CLERK: ASSED BY THE CITY COUNCIL: UBLISHED: iiilDficq EFFECTIVE DATE: ORDINANCE NO. Accepted by Franchisee this 7 day of noueel-Lioe.4— ) 1989. III YAKIMA VALLEY DISPOSAL, INC. By: -41/110 Its Y..___1. -"V lir 4MV.,..4. `411, IIII MHD00457A -17- III FRANCHISE AGREEMENT THIS AGREEMENT is entered into by and between the City of Yakima, a municipal corporation of the state of Washington (hereinafter "CITY") and Yakima Valley Disposal, Inc., a Washington corporation, with its principal office at 28121/2 Terrace Heights Drive, Yakima, Washington 98901 (hereinafter "YVD"). WHEREAS, YVD has operated in Yakima County under Washington Utilities and Transportation Commission ("WUTC") certification since March 13, 1963, and WHEREAS, George Solomon is the controlling shareholder of YVD and benefits from this Agreement, and 1111 WHEREAS, the CITY has annexed certain of those areas of Yakima County in which YVD operated, WHEREAS, upon such annexations, RCW 35.13.280 acted to cancel YVD's WUTC certification in said annexed areas, and WHEREAS, based upon RCW 35.13.280, and case law interpreting that statute, the CITY believes itself bound to grant garbage collection and disposal franchises to YVD in those areas in which YVD was authorized to perfoim such service before annexation, and WHEREAS, CITY is uncertain concerning certain of the CITY's statutory obligations to grant franchises to YVD (although some obligations may be no longer enforceable as barred by applicable statute of limitations, that limitations period has never been 4 111/ determined but may be anywhere from two to ten years), and 1111 0098.05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -1- 1111 WHEREAS, the parties now wish to resolve any and all claims under RCW 35.13.280 including claims to damages now and in the future, and WHEREAS, court cases indicate that mere permission to allow an entity to continue garbage collection and disposal service in an annexed area in which said entity maintained preannexation authorization does not amount to the granting of a "franchise" as required by RCW 35.13.280. NOW, THEREFORE, in consideration for the promises made herein, the parties agree as follows: Section 1. Definitions. The terms "garbage," "business site" and "residential site" shall be defined as the same terms III as are defined in Section 2 of the Ordinance into which this Agreement is incorporated. Section 2. Terw and Extent of Respective Franchise Grants. a. Areas annexed to CITY after March 6, 1963 through November 1, 1984. For those areas annexed by the CITY after March 6, 1963 through November 1, 1984 and for which YVD at the time of annexation had WUTC certification to provide garbage disposal and collection service, CITY agrees to grant to YVD a franchise to collect and dispose of garbage within said areas, such franchise to begin on November 1, 1989 and to automatically terminate on October 31, 1994. YVD accepts such franchise to the 1111 extent that YVD agrees to provide garbage collection and disposal service to business sites within said areas. However, YVD declines to provide garbage collection and disposal service to 1 11 1 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -2- Ill residential sites within said areas. In return for the franchise granted under this subsection, YVD agrees to release and waive any and all rights to any claims for any damages or other compensation from the CITY whether under RCW 35.13.280 or otherwise as a result of the loss of the right to provide service. b. Areas annexed from November 1, 1984 through October 31, 1989. For those areas annexed by the CITY from November 1, 1984 through October 31, 1989 and for which YVD maintained WUTC certification to provide garbage collection and disposal service at the time of annexation, CITY agrees to grant to YVD a franchise to collect and dispose of garbage within said areas for 1111 a five year term for each such annexed area from the effective date of its annexation for residential sites. YVD relinquishes its right to provide residential garbage and disposal service beyond said five year grant (both parties acknowledging that the CITY has consented to YVD's service to residential sites for five years in newly annexed areas for which YVD had state authority). For said areas, CITY agrees to grant to YVD a franchise to provide garbage collection and disposal service to business sites, such franchise beginning November 1, 1989 and automatically terminating October 31, 1994. In return for the franchises granted under this subsection for both residential and 1111 commercial service, YVD agrees to release and waive any and all rights to any claim for damages or other compensation from the CITY whether under RCW 35.13.280 or otherwise as a result of the 11/1 loss of the right to provide service. 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -3- , . III Ma p of franchise areas. The areas coverd by Sections 2a. and b. above are depicted on the attached map designated Exhibit A and hearby incorporated in full by this reference. d. Newly annexed areas. For all areas annexed by the CITY from November 1, 1989 onward for which YVD maintained WUTC authority to provide garbage collection and disposal service, then, to the extent of such authority, the CITY agrees to grant to YVD a franchise to provide garbage collection and disposal (to business sites and residential sites if such authority was maintained before annexation) for a five year period from the date of annexation in accordance with RCW 35.13.280. In consideration for this grant and the grant under subsections 2(a) III and (b), YVD agrees to release and waive any and all rights to any claims for damages or other compensation from the CITY whether under RCW 35.13.280 or otherwise as a result of the loss of the right to provide service. Section 3. Limitations. a. All grants in the foregoing paragraph shall be subject to the condition that YVD is now and remains able and willing to perform the service contemplated and that such service be adequately performed. YVD agrees that if YVD should breach this condition subsequent, then all rights granted to YVD hereunder and under the Ordinance into which this Agreement is incorporated 4111 may be terminated. YVD agrees that should termination of the franchise occur under this provision, YVD shall have no claim to any damages whatsoever whether under RCW 35.13.280 or otherwise. 4 11 1 0098.05001/M111D00464A MHO/lnj/pjn 11/07/89-7 -4- III b. Repeal of RCW 35.13.280. YVD agrees that should the Washington State Legislature repeal RCW 35.13.280 or modify RCW 35.13.280 in such manner that the CITY would no longer be obligated to grant a franchise to YVD in a newly annexed area other than by the terms of this contract, then upon such repeal or modification the requirement to issue franchises under Section 2(d) of this Agreement shall automatically be rendered null and void, and YVD shall have no claim to any damages under RCW 35.13.280 for such nullification. Section 4. Indemnification. a. YVD acknowledges that the granting of franchises to YVD under this contract and under the franchise ordinance to which it 1111 is attached may cause or has caused other parties to bring legal action against the CITY. The term "CITY" as used herein shall mean the CITY, its elected and appointed officials, employees and agents. YVD hereby agrees for itself and its successors, to indemnify, defend and hold harmless the CITY from all costs, damages and judgments, including but not limited to, attorneys' fees, expert witness costs, and court costs, arising from any and all claims, suits, actions or damages of any kind or any description, whether brought by another garbage collection business or other person or entity, which may occur or may have already occurred as a result of the grants contained herein or 1111 any license, permit or other authorization granted pursuant to this franchise and contract (including that certain action 1 11 1 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -5- III entitled Superior Refuse Removal, Inc. v. City of Yakima, Yakima County, Cause No. 89 b. If YVD desires to provide the defense to any such claim YVD agrees that any counsel employed by YVD for such defense shall be first approved by the CITY, such approval not to be unreasonably withheld. If YVD fails to assume such defense within ten (10) days of written notice by YVD of such suit or claim, the CITY shall have the right to retain the counsel of its choice and defend the claim and be entitled to all expert witness fees, attorneys' fees, court costs, or any other cost incurred in the defense of such claim or suit. c. suits and claims covered by the indemnification 1111 provision shall also include, but not be limited to, challenges to state statutes under which Yakima grants franchises to collect and dispose of garbage, whether such challenges are brought by any public or private entity or person. d. YVD agrees that failure to honor this indemnification provision will result in the automatic and immediate termination of this franchise and YVD agrees that should automatic termination occur under this indemnification YVD shall have no claim to any damages whatsoever. e. The indemnification obligation contained in this Section 4 shall, in addition to the personal guarantee of George 1111 Solomon, be further secured by an irrevocable letter of credit in the amount of $100,000 for the benefit of the CITY issued by a 111 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -6- _ . , . III Hank approved by the CITY and in a form acceptable to the City Attorney. Section 5. Guarantee. George Solomon agrees that he, his successors, assigns, heirs and devises shall personally guarantee any obligations of YVD under Section 4. George Solomon, on behalf of his successors, assigns, heirs and devises, agrees that he shall execute this Agreement as Guarantor of said obligations. Section 6. Governing Law; Venue. This Agreement shall be governed by the laws of the state of Washington. Venue of any action arising out of this Agreement shall be in Yakima County, Washington. Section 7. Entire Agreement and Modification. This 1111 Agreement shall constitute the entire understanding between the parties and shall supersede all prior oral or written agreements between the parties. Any modification of this Agreement shall be in writing and signed by both parties. Section 8. Notices. Any notices required under this Agreement shall be mailed by registered or certified mail, return receipt requested, to the parties at the following respective addresses and shall be deemed received three (3) days after mailing: City of Yakima Attn: Public Works Director City Hall 1111 Yakima, WA 98901 Yakima Valley Disposal, Inc. 28121/2 Terrace Heights Drive Yakima, WA 98901 1 11 1 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -7- 1111 George Solomon c/o Yakima Valley Disposal, Inc. 28121/2 Terrace Heights Drive Yakima, WA 98901 Any change in mailing address shall be valid only upon actual receipt by the other party. Section 9. No Implied Renewal or Extension. Franchisee acknowledges that this Agreement contains no implied or express right of renewal, reissuance or extension of any franchise. Section 10. Assignment. YVD shall not be entitled to transfer or assign any rights or obligations under this Agreement without the written consent of the CITY and unless the assignee of any such rights or obligations subscribes in full to this 1111 Agreement. YVD and George Solomon agree that in the event the City approves our assignment neither YVD nor George Solomon shall be released from those obligations, but shall remain secondarily liable therefore. IN WITNESS WHEREOF, this Agreement is entered into between the - 1 4A parties this day of Yi 0 or_vi-J0 , 1989. CITY OF YAKIMA Attest: By ( ;22.7 4- , ee4_,,4?' Mayor kcuto.„._. A ee-6_0„,1-2, ) C.V.vuL City Clerk YAKIMA VALLEY DISPOSAL, INC. AP , By _Are ,_ ....0117% .. Crl C..6).41.11-rj Erg 76 Its If a L.A. 1110 GUARANTOR "WSW -.A1W./..., George individual cap; .ty and as the controlling shareholder of Yakima Valley Disposal, Inc. 111 0098. 05001/MHD00464A MHD/lnj/pjn 11/07/89-7 -8- , - . / STATE OF WASHINGTON ) III/ County of _4A04_ ss. / On this day personally appeared before me / known unto me to be the President of Yakima Valley Disposal, Inc., who signed the foregoing as his free and voluntary act and in his corporate capacity. DATED this - e day of November, 989. NOTARY P . 41..fC i 1 f My Commission Expires: ?) ------ : 9 STATE OF WASHINGTON ) ) ss. County of I nk j ) 1111 On this day personally appeared before me George Solomon, known unto me to be the individual who signed the foregoing as his free and voluntary act. (,2 DATED this dill day of November, 1989. /1 e_ e ., ,L m ,,, NrA' PUi IC • My Commission Expires: Cf - 9 ‘..--.61 4111 III 0098.05001/MHDOO464A MHD/lnj/pjn 11/07/89-7 -9-