AN ORDINANCE granting King County permission to maintain and operate a D-C Substation in connection with its public transportation system, on Valley Street, east of 1st Avenue North, for an unlimited term; specifying the conditions under which this permit is granted; providing for the acceptance of the permit and conditions; and ratifying and confirming certain prior acts.

WHEREAS, the City of Seattle ("City") and the Municipality of Metropolitan Seattle ("Metro") entered into an agreement on December 1, 1972, that included the transfer or use of certain City-owned public transportation system properties to Metro, including but not limited to equipment and facilities required to transform and deliver electrical energy to direct current at thenexisting or additional points of delivery, as authorized by Ordinance 101714; and

WHEREAS, the City and Metro entered into an agreement on August 1, 1977 (the "First Supplemental Agreement"), to establish a mutually-approved program for the expansion and rehabilitation of Metro electric trolley service within the City, including route #2 on West Queen Anne and route #4 on East Queen Anne, as authorized by Ordinance 106584; and

WHEREAS, by Ordinance 107331, the City granted permission to Metro to construct, maintain, and operate a D-C Substation in Valley Street, east of 1st Avenue North, in connection with its public transportation system; and

WHEREAS, the City and Metro entered into a "Second Supplemental Agreement" on March 6, 1980, that superseded the First Supplemental Agreement, and established a more extensive program of trolley rehabilitation and expansion, including but not limited to rehabilitation of route #2 West Queen Anne, and expansion of route #3 North Queen Anne and route #4 East Queen Anne, all of which electric trolley routes are still in operation in 2012 and depend on the Valley Street D-C Substation to operate in the vicinity of south Queen Anne and the north end of downtown Seattle; and

WHEREAS, in 1994, Metro merged with and became part of the King County; and

WHEREAS, the permission authorized by Ordinance 107331 expired February 28, 2003; and

WHEREAS, King County has submitted an application to the Seattle Department of Transportation Director ("Director") to continue maintaining and operating the DC Substation; and

WHEREAS, the Director recommends that the term permit be approved subject to the terms identified in this ordinance; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Permission. Subject to the terms and conditions of this ordinance, the City of Seattle ("City") grants permission (also referred to in this ordinance as a permit) to King County, and its successors and assigns as approved by the Director of the Seattle Department of Transportation ("Director") according to Section 14 of this ordinance (the party named above and each approved successor and assign is referred to as "Permittee"), to maintain and operate a D-C Substation and appurtenances ("substation") in the median strip between the upper and lower roadways of Valley Street, east of 1st Avenue North. The substation is for the purpose of distributing electrical power to the public transportation system that the Permittee operates and maintains as successor to the Municipality of Metropolitan Seattle.

Section 2. Term. The permission granted to the Permittee to maintain and operate the substation under this Ordinance shall continue for so long as the substation is used to distribute electrical power to the public transportation system, subject to the right of the City to require the removal of the substation or to revise by ordinance any of the terms and conditions of the permission granted by this ordinance.

Section 3. Protection of utilities. The permission granted is subject to the Permittee being responsible to pay for the repair, protection, support, or relocation of any adjacent utilities that may be damaged due to Permittee's construction, repair, reconstruction, maintenance, operation, or removal of the substation.

Section 4. Removal for public use or for cause. The permission granted is subject to use of the street right-ofway or other public place (collectively "public place") by the City and the public for travel, utility purposes, and other public uses or benefits. The City expressly reserves the right to terminate the permission at any time and require the Permittee to remove the substation, or any part thereof or installation on the public place, at the Permittee's sole cost and expense in the event that:

(a) the City Council determines by ordinance that the space occupied by the substation is necessary for any public use or benefit or that the substation interferes with any public use or benefit; or

(b) the Director determines that use of the substation has been abandoned; or

(c) the Director determines that any term or condition of this ordinance has been violated, and the violation has not been corrected by the Permittee by the compliance date after a written request by the City to correct the violation (unless a notice to correct is not required due to an immediate threat to the health or safety of the public).

A City Council determination that the space is needed for, or the substation interferes with, a public use or benefit is conclusive and final without any right of the Permittee to resort to the courts to adjudicate the matter. Notwithstanding the foregoing sentence, the City acknowledges that the substation is a critical element of Permittee's public transportation system upon which many City residents depend, and that removal of the substation could eliminate Permittee's ability to provide electric trolley bus service to south Queen Anne and portions of downtown Seattle at the location described in Section 1.

Section 5. Permittee's obligation to remove and restore. If the permission expires because the substation is no longer used to distribute electrical power to the public transportation system, or if the City terminates the permission, then within 180 days after the expiration or termination of the permission, or prior to any earlier reasonable time stated in an ordinance or order requiring removal of the substation, the Permittee shall, at its own expense, remove the substation and all of the Permittee's equipment and property from the public place and replace and restore all portions of the public place that may have been disturbed for any part of the substation in as good condition for public use as existed prior to construction of the substation and in at least as good condition in all respects as the abutting portions of the public place as required by SDOT right-of-way restoration standards. Failure to remove the substation as required by this section is a violation of Chapter 15.90 of the Seattle Municipal Code (SMC) or successor provision; however, applicability of Chapter 15.90 does not eliminate any remedies available to the City under this ordinance or any other authority. If the Permittee does not timely fulfill its obligations under this section, the City may in its sole discretion remove the substation and restore the public place at the Permittee's sole cost and expense, and collect such expense in any manner provided by law.

Upon the Permittee's completion of removal and restoration in accordance with this section, or upon the City's completion of the removal and restoration and the Permittee's payment to the City for the City's removal and restoration costs, the Director shall then issue a certification that the Permittee has fulfilled its removal and restoration obligations under this ordinance.

Upon prior notice to the Permittee and entry of written findings that it is in the public interest, the Director may, in the Director's sole discretion, conditionally or absolutely excuse the Permittee from compliance with all or any of the Permittee's obligations under this section.

Section 6. Repair or reconstruction. The substation shall remain the exclusive responsibility of the Permittee and the Permittee shall maintain the substation in good and safe condition for the protection of the public. The Permittee shall not reconstruct or redevelop the substation except in strict accordance with plans and specifications approved by the Director.

Section 7. Failure to correct unsafe condition. After written notice to the Permittee and failure of the Permittee to correct an unsafe condition within the time stated in the notice, the Director may order the substation reconstructed, redeveloped, or repaired at the Permittee's cost and expense because of the unsafe condition. If the Director has documented that the substation has become unsafe or creates an unreasonable risk of injury to the public, then after written notice to the Permittee and failure of the Permittee to correct the unsafe condition or risk of injury to the public, the Director may order the substation be closed or removed at the Permittee's expense. If there is an immediate threat to the health or safety of the public, a notice to correct is not required.

Section 8. Continuing obligations. Notwithstanding termination or expiration of the permission granted, or closure or removal of the substation, the Permittee shall remain bound by all of its obligations under this ordinance until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5 of this ordinance. Notwithstanding the issuance of that certification, the Permittee shall continue to be bound by the obligations in Section 9 of this ordinance.

Section 9. Release, hold harmless, indemnification, and duty to defend. The Permittee, by accepting the terms of this ordinance, releases the City, its officials, officers, employees, and agents from any and all claims, actions, suits, liability, loss, costs, expense, attorneys' fees, or damages of every kind and description arising out of or by reason of the substation or this ordinance, including but not limited to claims resulting from injury, damage, or loss to the Permittee or the Permittee's property.

The Permittee agrees to at all times defend, indemnify, and hold harmless the City, its officials, officers, employees, and agents from and against all claims, actions, suits, liability, loss, costs, expense, attorneys' fees, or damages of every kind and description, excepting only damages that may result from the sole negligence of the City that may accrue to, be asserted by, or be suffered by any person or property including, without limitation, damage, death, or injury to members of the public or to the Permittee's officers, agents, employees, contractors, invitees, tenants, tenants' invitees, licensees, or successors and assigns arising out of or by reason of:

(a) the existence, condition, construction, reconstruction, modification, maintenance, operation, use, or removal of the substation or any portion thereof, or the use, occupation, or restoration of the public place or any portion thereof by the Permittee or any other person or entity;

(b) anything that has been done or may at any time be done by the Permittee by reason of this ordinance;

(c) the Permittee failing or refusing to strictly comply with every provision of this ordinance; or

(d) arising out of or by reason of the substation or this ordinance in any other way.

If any suit, action, or claim of the nature described above is filed, instituted, or begun against the City, the Permittee shall upon notice from the City defend the City, with counsel acceptable to the City, at the sole cost and expense of the Permittee, and if a judgment is rendered against the City in any suit or action, the Permittee shall fully satisfy the judgment within 90 days after the action or suit has been finally determined, if determined adversely to the City. If it is determined by a court of competent jurisdiction that Revised Code of Washington (RCW) 4.24.115 applies to this ordinance, then in the event claims or damages are caused by or result from the concurrent negligence of the City, its agents, contractors, or employees, and the Permittee, its agents, contractors, or employees, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Permittee or the Permittee's agents, contractors, or employees.

Section 10. Insurance. For as long as the Permittee exercises any permission granted by this ordinance and until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5, the Permittee shall obtain and maintain in full force and effect, at its own expense, insurance and/or selfinsurance that protects the Permittee and the City from claims and risks of loss from perils that can be insured against under commercial general liability (CGL) insurance policies in conjunction with:

(a) construction, reconstruction, modification, operation, maintenance, use, existence, or removal of the substation or any portions thereof, as well as restoration of any disturbed areas of the public place in connection with removal of the substation;

(b) the Permittee's activity upon or the use or occupation of the public place described in Section 1 of this ordinance; and

(c) claims and risks in connection with activities performed by the Permittee by virtue of the permission granted by this ordinance.

Minimum insurance requirements are CGL insurance based on the Insurance Services Office (ISO) form CG 00 01 or equivalent. The City requires insurance coverage to be placed with an insurer admitted and licensed to conduct business in Washington State or with a surplus lines carrier according to RCW Chapter 48.15. If coverage is placed with any other insurer or is partially or wholly self-insured, such insurer(s) or self-insurance is subject to approval by the City's Risk Manager.

Minimum limits of liability shall be $2,000,000 each occurrence combined single limit bodily injury and property damage, with $4,000,000 annual aggregate. Coverage shall include the "City of Seattle, its elected and appointed officers, officials, employees and agents" as additional insureds for primary and non-contributory limits of liability subject to a Separation of Insureds clause.

Within 60 days after the effective date of this ordinance, the Permittee shall provide to the City, or cause to be provided, certification of insurance coverage including an actual copy of the blanket or designated additional insured policy provision per the ISO CG 20 12 endorsement or equivalent. The insurance coverage certification shall be delivered or sent to the Director or to the Department of Transportation (SDOT) at an address as the Director may specify in writing from time to time. The Permittee shall provide a certified complete copy of the insurance policy to the City promptly upon request.

If the Permittee is self-insured, a letter of certification from the Corporate Risk Manager may be submitted in lieu of the insurance coverage certification required by this ordinance, if approved in writing by the City's Risk Manager. The letter of certification must provide all information required by the City's Risk Manager and document, to the satisfaction of the City's Risk Manager, that selfinsurance equivalent to the insurance requirements of this ordinance is in force. After a self-insurance certification is approved, the City may from time to time subsequently require updated or additional information. The approved self-insured Permittee must provide 30 days' prior notice of any cancellation or material adverse financial condition of its self-insurance program. The City may at any time revoke approval of self-insurance and require the Permittee to obtain and maintain insurance as specified in this ordinance.

In the event that the Permittee assigns or transfers the permission granted by this ordinance, the Permittee shall maintain in effect the insurance required under this section until the Director has approved the assignment or transfer pursuant to Section 14.

Section 11. Contractor insurance. The Permittee shall contractually require that any and all of its contractors performing work on any premises contemplated by this permit name the "City of Seattle, its elected and appointed officers, officials, employees and agents" as additional insureds for primary and non-contributory limits of liability on all CGL, Automobile and Pollution liability insurance and/or selfinsurance. The Permittee shall also include in all contract documents with its contractors a third-party beneficiary provision extending to the City contract indemnities granted to the Permittee.

Section 12. Performance bond. In the event the Permittee seeks to assign or transfer the permission granted by this ordinance, the City's Risk Manager may determine in his sole discretion that a performance bond is necessary to adequately protect the City's interests. In the event of such a determination, the successor entity shall deliver to the Director for filing with the City Clerk, as a condition of approval of the assignment or transfer, a sufficient bond executed by a surety company authorized and qualified to do business in the State of Washington that is in the amount determined by the Director in consultation with the City Risk Manager, and conditioned with a requirement that the Permittee shall comply with every provision of this ordinance and with every order the Director issues under this ordinance. The Permittee shall ensure that the bond remains in effect until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5. An irrevocable letter of credit approved by the City Risk Manager may be substituted for the bond upon approval of the Director. Upon prior notice to the Permittee and entry of written findings that it is in the public interest, the Director may, in the Director's sole discretion, conditionally or absolutely excuse the Permittee from compliance with all or any of the Permittee's obligations under this section.

Section 13. Adjustment of insurance and bond requirements. The Director, in consultation with the City Risk Manager, may adjust minimum liability insurance levels and surety bond requirements during the term of this permission. If the Director and City Risk Manager determine that an adjustment is necessary to fully protect the interests of the City, the Director shall notify the Permittee of the new requirements in writing. The Permittee shall, within 60 days of the date of the notice, provide proof of the adjusted insurance and surety bond levels to the Director.

Section 14. Consent for and conditions of assignment or transfer. The permission granted by this ordinance shall not be assignable or transferable by operation of law; nor shall the Permittee transfer, assign, mortgage, pledge or encumber the same without the Director's consent, which the Director shall not unreasonably refuse. The Director may approve assignment or transfer of the permission granted by this ordinance to a successor entity only if the successor or assignee has accepted in writing all of the terms and conditions of the permission granted by this ordinance and has provided, at the time of the acceptance, the certification of insurance coverage and any bond required under this ordinance, and has paid any fees due under Section 17 of this ordinance. Upon the Director's approval of an assignment or transfer, the rights and obligations conferred on the Permittee by this ordinance shall be conferred on the successors and assigns. Any person or entity seeking approval for an assignment or transfer of the permission granted by this ordinance shall provide the Director with a description of the current and anticipated use of the substation.

Section 15. Inspection fees. The Permittee shall, as provided by SMC Chapter 15.76 (or successor provision), pay the City the amounts charged by the City to inspect the substation during construction, reconstruction, repair, annual safety inspections, and at other times deemed necessary by the City. No inspection or approval by the City shall be construed as a representation, warranty or assurance to the Permittee or any other person as to the safety or soundness of any structure or condition, nor as to compliance with this ordinance or any agreement or standard. Any failure by the City to require correction of any defect or condition shall not in any way limit the responsibility or liability of the Permittee.

Section 16. Inspection reports. The Permittee shall submit to the Director, or to the SDOT at an address specified by the Director, an inspection report that:

(a) describes the physical dimensions and condition of all load-bearing elements;

(b) describes any damages or possible repairs to any element of the substation;

(c) prioritizes all repairs and establishes a timeframe for making repairs; and

(d) is stamped by a professional structural engineer licensed in the State of Washington.

The report meeting the foregoing requirements shall be submitted in the event of a natural disaster or other event that may have damaged the substation, and shall be submitted by the date established by the Director. The Permittee has the duty of inspecting and maintaining the substation, and the responsibility to submit structural inspection reports periodically or as required by the Director does not waive or alter any of the Permittee's other obligations under this ordinance. The receipt of any reports by the Director shall not create any duties on the part of the Director. Any failure by the Director to require a report, or to require action after receipt of any report, shall not waive or limit the obligations of the Permittee.

Section 17. Annual fee. Beginning on March 26, 2011, and annually thereafter, the Permittee shall promptly pay to the City, upon statements or invoices issued by the Director, an annual fee of $2,037, or as adjusted annually thereafter, for the privileges granted by this ordinance.

Adjustments to the annual fee shall be made in accordance with a term permit fee schedule adopted by the City Council and may be made every year. In the absence of a schedule, the Director may only increase or decrease the previous year's fee to reflect any inflationary changes so as to charge the fee in constant dollar terms. This adjustment will be calculated by adjusting the previous year's fee by the percentage change between the two most recent year-end values available for the Consumer Price Index for the Seattle-Tacoma-Bremerton Area, All Urban Consumers, All Products, Not Seasonally Adjusted. Permittee payments shall be made to the City Finance Director for credit to the Transportation Operating Fund.

Section 18. Compliance with other laws. Permittee shall maintain and operate the substation in compliance with all applicable federal, state, County and City laws and regulations. Without limitation, in all matters pertaining to the substation, the Permittee shall comply with the City's laws prohibiting discrimination in employment and contracting including Seattle's Fair Employment Practices Ordinance, Chapter 14.04 and Fair Contracting Practices code, Chapter 14.10 (or successor provisions).

Section 19. Acceptance of terms and conditions. The Permittee shall deliver to the Director its written signed acceptance of the terms of this ordinance within 60 days after the effective date of this ordinance. The Director shall file the written acceptance with the City Clerk. If no such acceptance is received within that 60-day period, the privileges conferred by this ordinance shall be deemed to be declined or abandoned and the permission granted deemed to be lapsed and forfeited, and Permittee shall, at its own expense, remove the substation and all of the Permittee's equipment and property and replace and restore all portions of the public place as provided in Section 5.

Section 20. Section titles. Section titles are for convenient reference only and do not modify or limit the text of a section.

Section 21. Ratify and confirm. Any act taken by the City or the Permittee pursuant to the authority and in compliance with the conditions of this ordinance but prior to the effective date of the ordinance is ratified and confirmed.

Section 22. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________________, 2012, and signed by me in open session in authentication of its passage this

_____ day of ___________________, 2012.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2012.

_________________________________

Michael McGinn, Mayor

Filed by me this ____ day of __________________________, 2012.

____________________________________

Monica Martinez Simmons, City Clerk

(Seal)

Angela Steel SDOT, King County DC Substation ORD May 4, 2012 Version #9A