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ORDINANCE NO. —J--1Q-L--
AN ORDINANCE of the City of
Kent, Washington, granting unto
Heath Techna, Inc., a Delaware
corporation, its successors and
assigns, the right, privilege,
authority and franchise for ten
years, to construct, attach,
maintain, repair, replace, operate
and use communication line duct bank
facilities under and across South
200th Street within the City of
Kent.
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Franchise Granted
1.1 Pursuant to the laws of the State of Washington
(including, but not limited to, RCW 35A.47.040 and RCW
80.32.010), the City of Kent, a Washington municipal corporation
("City"), hereby grants to Heath Techna Corporation, a Delaware
corporation ("Heath Techna"), subject to the terms and conditions
set forth hereinafter, a franchise for a period of ten years,
commencing on the effective date of this ordinance.
1.2 This Franchise grants Heath Techna the right,
privilege and authority to install a casing pipe as reflected in
the attached map, attached hereto and incorporated herein as
Exhibit A, for the specific purpose to insert a communication and
data transmission wire under, across and through a portion of South
200 St. in the City of Kent (the "Franchise Area"), which Franchise
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Area is legally described in Exhibit B, attached hereto and
incorporated herein by this reference, and which shall serve to
link two properties owned or controlled by Heath Techna, which
properties are described in Exhibits C and D, attached hereto and
incorporated herein by this reference.
Section 2. Nonexclusive Franchise Grant
2.1 This Franchise is granted upon the express condition
that it shall not in any manner prevent the City from granting
other or further franchises which do not interfere with Heath
Techna's rights under this Franchise. This Franchise shall in no
way prevent or prohibit the City from using the Franchise Area in
a manner consistent with this Franchise or affect its jurisdiction
lover the Franchise Area. The City shall retain power to make all
necessary changes, relocations, repairs, maintenance, and
improvements in, of or to South 200th Street, including the
Franchise Area, as the City may deem fit.
Section 3. Relocation of Heath Techna's Facilities
3.1 Whenever the City undertakes (or causes to be
undertaken at City expense) public improvements (e.g., improvements
to City streets and/or City utilities) and such public improvements
require the relocation of Heath Techna's then existing facilities
within the Franchise Area, the City shall:
3.1.1 provide Heath Techna, at least thirty (30)
days prior to the City's commencement of activities
requiring such relocation, written notice requesting such
relocation; and
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3.1.2 provide Heath Techna with copies of pertinent
portions of the City's plans and specifications for such
public improvements and a proposed location for Heath
Techna's facilities so that Heath Techna may relocate its
facilities to another location in order to accommodate
the City's project.
After receipt of such notice and such other information, Heath
Techna shall relocate such facilities within the Franchise Area at
no charge to the City. Heath Techna shall make every reasonable
effort, subject to matters beyond its control, to complete the
relocation of such Facilities so as not to delay the City's public
improvement project.
3.2 In connection with the relocation of Heath Techna's
Facilities in accordance with subsection 3.1 above, Heath Techna
may, after receipt of written notice requesting a relocation of itsi
Facilities within the Franchise Area, submit to the City written
alternatives to such relocation. The City shall evaluate such
alternatives and advise Heath Techna in writing if one or more of
the alternatives is suitable to accommodate the work which would
otherwise necessitate relocation of the Facilities. In the event
the City ultimately determines that there is no other reasonable
alternative, Heath Techna shall relocate its Facilities within the
Franchise Area as otherwise provided in subsection 3.1.
3.3 Any condition or requirement imposed by the City'
upon any person or entity other than Heath Techna (including,
without limitation, any condition or requirement imposed pursuant
to any contract or in conjunction with approvals or permits for
zoning, land use, construction or development) that requires the
relocation of Heath Techna's Facilities shall be deemed to be a
relocation within the purview of this subsection 3.3.
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section 4. Placement of Facilities, Permits, coordination of
Activities, Excavations
4.1 Heath Techna shall at all times maintain its
Facilities within the Franchise Area so as not to unreasonably
interfere with the free passage of traffic or the use and enjoyment
of adjoining property. Heath Techna shall at all times post and
maintain proper barricades and comply with all applicable safety
regulations during such period of construction as required by the
ordinances of the City or the laws of the State of Washington.
4.2 Heath Techna shall, in carrying out any authorized)
activities within the Franchise Area, comply with all applicable',
City ordinances, codes, regulations, standards and procedures as
now or hereafter amended, and shall obtain all necessary permits or
approvals; provided, however, that if any term or condition of this
Franchise and any term or condition of such ordinances, codes,
regulations, standards, procedures, permits or approvals are in
conflict, the term or condition of this Franchise shall govern and
control.
4.3 Heath Techna and the City shall each exercise best
efforts to coordinate construction work either may undertake within
the Franchise Area so as to promote the orderly and expeditious
performance and completion of such work as a whole.
4.4 If, at any time or from time to time, either Heath
Techna or the City shall cause excavations to be made within the
Franchise Area, the party causing such excavation to be made shall
afford the other, upon receipt of a written request to do so, an
opportunity to use such excavation, provided that: (a) such joint
use shall not unreasonably delay the work of the party causing the
excavation to be made; and (b) such joint use shall be arranged and
accomplished on terms and conditions satisfactory to both parties.
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Section 5. Restoration after Construction
Whenever it shall be necessary for Heath Techna, in the
exercise of its rights under this Franchise, to disturb the surface
of the Franchise Area, Heath Techna shall restore the surface of
the Franchise Area to at least a condition the same as it was in
immediately prior to any such disturbance. All concrete encased
monuments which have been disturbed or displaced by such work shall
be restored pursuant to all federal, state and local standards and
specifications. Heath Techna agrees to promptly complete all such
restoration work at its sole cost and expense.
Section 6. Lateral Support
6.1 Whenever construction, installation or excavation of
Facilities within the Franchise Area have caused or contribute to
a condition that appears to substantially impair the lateral
support of the Franchise Area, the Public Works Director may direct
Heath Techna, at Heath Techna's own expense, to take such actions
with respect to its Facilities within the Franchise Area so as not
to impair the lateral support thereof.
Section 7. Indemnification
7.1 Heath Techna shall defend, indemnify and hold the
City, its officers, officials, employees, agents and volunteers
harmless from any and all claims, injuries, damages, losses or
suits, including all legal costs and attorney fees, arising out of
or in connection with the performance of this Franchise agreement,
except for injuries and damages caused by the sole negligence of
the City.
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7.2 The City's inspection or acceptance of any of Heath
Techna's work when completed shall not be grounds to avoid any of
these covenants of indemnification.
7.3 Should a court of competent jurisdiction determine
that this Franchise agreement is subject to RCW 4.24.115, then, in
the event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the
concurrent negligence of Heath Techna and the City, its officers,
officials, employees, agents and volunteers, Heath Techna's
liability hereunder shall be only to the extent of Heath Techna's
negligence.
7.4 IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD
THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES HEATH TECHNAIS
WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY
FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
7.5 The provisions of this section shall survive the
expiration or termination of this Agreement.
Section S. Insurance
8.1 Heath Techna shall procure and maintain for the
duration of this Franchise agreement, insurance against claims for
injuries to persons or damage to property which may arise from or
in connection with the performance of the work hereunder by Heath
Techna, its agents, representatives, employees, subconsultants or
subcontractors.
8.2 Prior to the adoption of this Franchise ordinance,
Heath Techna shall provide a Certificate of Insurance evidencing:
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8.2.1 Automobile Liability insurance with limits
no less than $1,000,000 combined single limit per
accident for bodily injury and property damage; and
8.2.2 Commercial General Liability insurance'
written on an occurrence basis with limits no less than
$1,000,000 combined single limit per occurrence and
$2,000,000 aggregate for personal injury, bodily injury
and property damage. Coverage shall include but not be
limited to: blanket contractual; products/completed
operations/broad form property damage; explosion,
collapse and underground (XCU) if applicable; and
employer's liability.
8.3 Any payment of deductible or self insured retention
shall be the sole responsibility of Heath Techna.
8.4 The City, its officers, officials, employees, agents
and volunteers shall be named as an additional insured on the
insurance policy, as respects work performed by or on behalf of
Heath Techna and a copy of the endorsement naming the City as
additional insured shall be attached to the Certificate of
Insurance.
8.5 Heath Techna's insurance shall contain a clause
stating that coverage shall apply separately to each insured
against whom claim is made or suit is brought, except with respects
to the limits of the insurer's liability.
8.6 Heath Techna's insurance shall be primary insurance
as respects the City, and the City shall be given thirty (30)
calendar days prior written notice by certified mail, return
receipt requested, of any cancellation, suspension or material
change in coverage.
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section 9. Abandonment of Heath Techna's Facilities
9.1 Any plan for abandonment or removal of Heath
Techna's Facilities within the Franchise Area must be first
approved by the Public Works Director, and all necessary permits
must be obtained prior to such work.
section 10. Modification
10.1 This Franchise may be amended only by written)
instrument, signed by both parties, which specifically states that
it is an amendment to this Franchise and is approved and executed
in accordance with the laws of the State of Washington. Without'
limiting the generality of the foregoing, this Franchise
(including, without limitation, subsection 4.2 above) shall govern
and supersede any permit, approval, license, agreement or other
document required by or obtained from the City in conjunction with
the exercise (or failure to exercise) by Heath Techna of any and
all rights, benefits, privileges, obligations or duties in and
under this Franchise, unless such permit, approval, license,
agreement or other document specifically:
10.1.1 references this Franchise; and
10.1.2 states that it supersedes this Franchise to
the extent it contains terms and conditions which change,
modify, delete, add to, supplement or otherwise amend the
terms and conditions of this Franchise.
In the event of any conflict or inconsistency between the
provisions of this Franchise and the provisions of any such permit,
approval, license, agreement or other document, the provisions of
this Franchise shall control.
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Section 11. Forfeiture and Other Remedies
11.1 If Heath Techna willfully violates or fails to
comply with any of the provisions of this Franchise, or through
willful or unreasonable negligence fails to heed or comply with any
notice given Heath Techna by the City under the provisions of this
Franchise, then Heath Techna shall, at the election of the Kent
City Council, forfeit all rights conferred hereunder and this
Franchise may be revoked or annulled by the Council after a hearing
held upon reasonable notice to Heath Techna.
11.2 The right of the City to declare a forfeiture
pursuant to subsection 12.1 is a remedy in addition to, and is not
a limitation of, the rights, remedies or actions available to
either party by reason of the other party's noncompliance with the
terms and conditions of this Franchise.
Section 12. City ordinances and Regulations
12.1 Nothing herein shall be deemed to direct or
restrict the City's ability to adopt and enforce all necessary and
appropriate ordinances regulating the performance of the conditions
of this Franchise, including any reasonable ordinance made in the
exercise of its police powers in the interest of public safety and
for the welfare of the public.
Section 13. Publication, Plan Review and Inspection Costs
13.1 The cost of the publication of this ordinance shall
be borne by Heath Techna. Additionally, all the City's plan review
and inspection costs arising from or connected with the
construction of the facilities contemplated to be built as a result
of this franchise shall be borne by Heath Techna.
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Section 14. Acceptance
14.1 After the passage and approval of this ordinance
and within sixty (60) days after such approval, this Franchise
shall, if accepted by Heath Techna, be accepted by Heath Techna by
its filing with the City Clerk an unconditional written acceptance
thereof. Failure of Heath Techna to so accept this franchise
within said period of time shall be deemed a rejection thereof by
Heath Techna, and the rights and privileges herein granted shall,
after the expiration of the sixty-day period, absolutely cease,
unless the time period is extended by ordinance duly passed for
that purpose.
Section 15. Survival
15.1 With respect only to matters arising during the
period of time this Franchise is in effect, the parties intend that
any term or condition applicable to such matters shall survive the
expiration or termination of this Franchise to the extent such
survival can be reasonably inferred under the circumstances
presented and to the extent such an inference is necessary to
prevent substantial injustice to an injured party.
15.2 The terms and conditions of this Franchise shall be
binding upon the parties' respective successors and assigns.
Section 16. Severability
16.1 If any section, sentence, clause or phrase of this
Franchise 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 Franchise.
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Section 17. Assignment
17.1 Heath Techna may not assign or transfer this
Franchise without the written consent of the City Council of the
City, which consent shall not be unreasonably withheld.
Section 18. Notice
18.1 Any notice or information required or permitted to
be given to the parties under this Franchise agreement may be sent
to the following addresses unless otherwise specified:
City of Kent
Director of Public Works
300 West Gowe
Kent, WA 98032
Heath Techna Corp.
Attn: Richard Klug, Vice -President of Finance
Heath Tecna Aerospace Co.
19819 84th Avenue South
Kent, Washington 98032
Section 25. Effective Date
This Ordinance shall take effect thirty (30) days after
its execution; having first been submitted to the Kent City
Attorney for approval; after one introduction by the City Council
at a regular meeting; after having been published at least once in
a newspaper of general circulation in the City of Kent; and
finally, having been granted an approving vote of at least a
majority of the City Council at a regular meeting.
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DAN\KELLEHER, MAYOR
ATTEST:
BRENDA JACOBER
7TY CLERK
APPROVED AS TO FORM:
A. LDBOVICH, CITY
PASSED the _oZ_ day of ri 1993.
APPROVED the day of_, 1993.
PUBLISHED the J�3 day of 1993.
I hereby certify that this is a true copy of
Ordinance No. ,3/0/ , passed by the City Council of the City of
Kent, Washington, and approved by the Mayor of the City of Kent as
hereon indicated.
( SEAL)
HTHTEKNA.NPF
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BRENDA JAC0,8ER,/ CITY CLERK
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EXHIBIT A
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HEATH TECNA AEROSPACE COMPANY
COMMUNICATIONS LINES CROSSING ACROSS SOUTH 200th STREET
BETWEEN PLANT No.1 and PLANT No. 3
Three 4i -inch conduits located in a strip of land 3.0 feet wide and
1.5 feet on either side of the following described lane=
A line Perpendicular to the center line of South 200th Street,
extending 30 feet each side Of center line and being 280.58 feet
West of the -East one quarter"'corfier' of Section 1, ' Township 22
North, Range 4 East, Willamette Meridian, City of Kent, Wash-
ington, containing lee square 'Feet, more or less.
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EXHIBIT g
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HEATH TE( -.NA
Legal Description of Heath Tecna Property
after Lot Line Adjustment
VCAfqT-T-
TEAT PORTION OF TME SOUTF—EAST QUARTER OF THE NORTHEAST QUArtTER OF SEC': = 1,
TOWNSHIP 22 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, IN ICING COUNTY, WASHINGTON,
LYING SOUTH OF TEE SOUT�J— y MARGIN OF SOUTH 196TH: STREET AND EASTERLY OF TEE
FAST MARGIN OF GIST AV-,N`UE SOUTH AS THEY WERE ESTABLISHED BY THAT DEED RECORDED
UNDER RECORDING NUMBER 5345763;
EXCEPT THE SOUTH 2SO FEET OF THE WEST 263.19 FKET THEREOF;
EXCEPT THE SOUTH 30 FEET THEREOF;
EXCEPT THOSE PORTIONS LYING WITHIN PRIMARY STATE HIGHWAY NUMBER 5,-
EXCEPT
;EXCEPT THOSE PORTIONS DEEDED TO TIE CITY OF IUINT BY DEEDS: RECORIDE D QrNDF.R
RECORDING NUMBERS 7812220012, 7905290355 AND 88OS1S0073; AND
EXCEPT THAT PORTION DF.SCRI.EED AS FOLLOWS:
BEGINNING AT A POINT ON TEE WEST MARGIN OF PRIMARY STATE HIGHWAY NDMSS'R 5, SAID
POINT BEING 179.06 FEET SOUTH OF THE NORTH LIME OF SAID SOUTHEAST Q -ARTER OF TEE
NORTHEAST QUARTER OF SECTION 1;
T.`NCE WEST ALONG THE SOUTHERLY MARGIN OF SOUTH 196TH STREET TO A POINT W111CH IS
411.11 FEET EAST OF.TH" EASTERLY MARGIN OF 81ST AVENUE SOUTH;
THENCE SOUTH PARALLEL TO SAID EASTERLY Y-?-RGIN 365 FEET;
THENCE 'EAST PAR.ALLvL TO SAID SOUTHERLY 2r"kRGIN TO TIE WESTERLY 11ARGIN OF SAID
STATE HIGHWAY;
THENCE NORTF- ALONG SAID WESTERLY 2'..ARGIN TO TEE POINT OF BEGINNING.
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EXHIBIT C
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li• 2u!92 13:5 1 FAX 206 872 3.113 HEATH TECKA C uu3
... = t - • y.• -'•rte •r- �.;..•, - - " _} _
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LEGAL DESCRIPTI01T�_� PILA.-LqT �3
_ Parcel A'
rth half of the Northeast quarter of t
That portion of the Nohe
Southeast qua:cv = of Section 1, Tov-nship 22 North, Range 4 East,
:�..: Wimv, in I�Zno County, Washington described as follows:
C Eeginui�g at the Northeast corner of said subdivision:
cry._Thence South along the East Zine of said subdivision 219.82 feet;
C\1 thence North 89°24`44- west 990.05 feet;
parallel. to the East Zine of said subdivision to.
CV -thence North
�" the North line of said subdivision;
C: thence Easterly along said �torth line 990.11 feet,more or less,
M to the point of beginning;
EXCEPT those portions conveyed to King Countg and to the City of
9011b rna 790309113.
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Kent for streets by deeds recorded t..n0King. County Recording
Nos. 749615, 5999070, 7305070013, 790309
parcel. B:
That portioa of the North half of the Northeast quarter of the
Southeast quarter, Section 1, Township 22 Horth, Range 4 East,
W.ri. in gig Comity, Washington described as follows:
s"..o*ae,oa ing at the hortheAst CO
raer of said subdivision:
theAce South-aiong.the .East line of said subdivision 219.82 feet
to the true point of 'beginning.' -
thence North $9124'44"` 'West 990.05 feet;
thence South parallel to,the East. line of said subdivision
224.18 feet;
thence South $9039152, East 990.02 feet'to East- line•nf said .
subdivision;'
thence North slang said Eask line 219,32 feet to the True Pout
of Be ,i.nning:i
EXCEPT those. portions conveyed to King county and the City a£
' Rent for streets by deeds recorded under King County recording----:.
r 'Non. 74955.' 7901290121+, ,a.nd 7901290125 -
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_ r1/1 -. -• '•^^S'�'3= �-s � >t.r. '{.1C••* �. ����r:� . S .►-�� �� Y •— �r•�G�i.''�c.. _ii i,• - • � y�-r..13'-ti..�� `• - �-•