AN ORDINANCE relating to Seattle Public Utilities; authorizing the Director of Seattle Public Utilities to enter into a license agreement with the Port of Seattle allowing Seattle Public Utilities to make a connection to a storm drain system owned by the Port of Seattle to receive water pumped from the Riverton Heights well field.

WHEREAS, the City of Seattle ("City") owns drinking water wells north of Seattle-Tacoma International Airport ("Airport") at the Highline Well Field in Riverton Heights; and

WHEREAS, Seattle Public Utilities ("SPU") periodically flushes these wells to remove turbidity and make the well water suitable for its water distribution system; and

WHEREAS, SPU's well flushing activities cause water to travel into a storm drain system that runs under the Port's North Employee Parking Lot before being conveyed by a ditch and culvert drainage system adjacent to State Route 518 before entering Lake Reba; and

WHEREAS, SPU desires to minimize potentially elevated turbidity levels in Lake Reba associated with its flushing activities at the Riverton Heights well field; and

WHEREAS, SPU and the Port wish to enter into a license agreement allowing SPU to construct and operate a pipe system on Port property that is designed to: 1) contain the water flushed from the wells at Riverton Heights in a closed pipe system; 2) avoid liability exposure to the Port; 3) reduce costs for SPU ratepayers; and 4) improve water quality in Lake Reba; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Director of Seattle Public Utilities is authorized to enter into a license agreement with the Port of Seattle, substantially in the form of the agreement attached hereto as Attachment 1, which allows the City of Seattle to construct a connection to the Port's storm drain system at the Port's North Employee Parking Lot.

Section 2. As a condition of this new license, the City of Seattle will indemnify, defend, and hold the Port and its affiliates harmless against any and all liabilities caused by SPU's use of the Port's facilities.

Section 3. 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 Seattle 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)

Attachment 1: License Agreement

Ulysses Hillard SPU Riverton Wells ORD September 26, 2011 Version #2

Attachment 1: License Agreement

License Agreement between Seattle Public Utilities and Port of Seattle

Regarding Discharge of Riverton Heights Well Water to the Port of Seattle's stormwater infrastructure at Airport's North Employee Parking Lot

This License Agreement ("License" or "Agreement") is made between the City of Seattle ("City") by and through its Seattle Public Utilities Department ("SPU") and the Port of Seattle ("Port").

Recitals

1. SPU owns drinking water wells north of Seattle-Tacoma International Airport ("Airport") at Highline Well Field in Riverton Heights which SPU uses as an emergency supply of water and for augmentation of water supply when water demand is high during the summertime.

2. SPU currently flushes these wells once a year to remove turbidity so as to make the well water suitable for the potable system.

3. Currently, when SPU flushes these wells, the water travels into a storm drain that runs through the center of the Port's North Employee Parking Lot, empties into the ditch adjacent to SR 518, flows east for a hundred feet, crosses under SR 518, emerges on the south side of SR 518, and then flows west until it enters Lake Reba.

4. Due to the volume of flow (estimated at 700 gallons per minute (gpm)), the flushing of well water into SPU's existing storm drain can cause water to flow onto SR 518, creating a roadway hazard.

5. Due to the elevated turbidity, the flushing of well water into SPU's existing storm drain could cause a water quality concern in Lake Reba.

6. The fact that the route the flushed well water currently follows includes flow along the shoulder of a freeway causes SPU to incur high expenses with each flushing operation.

7. SPU wishes to obtain from the Port a license to construct and operate a new pipe on Port property that will receive discharge from SPU's drinking water wells at Riverton Heights and convey that discharge into the Port's stormwater system during the initial well start-up flushing.

8. The parties wish to enter into a license agreement that would allow SPU to construct and operate a pipe system on Port property that is designed to (1) contain the water flushed from the wells at Riverton Heights in a closed pipe system, (2) handle the volume of flow, (3) avoid liability to the Port, (4) reduce expenses for the City, and (5) improve water quality.

9. The well water that ultimately flows into Lake Reba would be cleaner because the water flowing through the new connection pipe would be detained in the pond on the west side of the North Employee Parking Lot and then be released into its ultimate destination with the benefit of additional settling before discharging into Lake Reba.

10. The Port does not warrant that its facilities are adequate to handle the intended discharges. There are uncertainties regarding the proposed operation such that SPU must strictly adhere to safeguards to protect the Port.

11. This agreement is consistent with the Port's interest in cooperating with other government agencies to promote environmental stewardship and safeguard the quality of the community's water resources as long as the terms of the agreement protect the Port's investment in its stormwater infrastructure and from liabilities associated with such cooperation.

NOW, THEREFORE, in consideration of the terms and conditions set forth below, the parties agree as follows:

Agreement

A. Scope of License Agreement for Connection Pipe and Discharge to the Port's Stormwater Infrastructure

1. The Port hereby grants SPU (1) a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to locate, construct, operate, and maintain, in strict accordance with the plans and specifications approved by the Port as part of SPU's application and the Port's design review process (the "Plans and Specifications"), a 12-inch diameter pipe of approximately 30 linear feet in King County, Washington, as generally located, described, and depicted in the Exhibit Drainage Corridor, Drainage Corridor Description and Storm Drainage Plan drawing, attached hereto as Exhibits A, B and C respectively and made a part hereof ("Pipeline"); and (2) a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to discharge well water from SPU's Highline Well Field in Riverton Heights, through the Pipeline into the Port's stormwater infrastructure system all as located and shown on Exhibits A, B and C.

2. SPU shall take reasonable measures to not disturb any improvements of the Port or the Port's existing lessees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements based on information provided by the Port.

3. SPU shall use the locations generally described in Exhibits A, B, and C solely for construction, operation, and maintenance of the pipeline carrying water from SPU's drinking water wells at Riverton Heights. SPU shall not use the pipeline to carry any other commodity or use the Pipeline for any other purpose.

4. SPU discharge to the Port's stormwater infrastructure system shall not exceed an instantaneous flow rate of 800 gpm. The total flow of SPU discharge to the Ports' stormwater infrastructure system shall not exceed 188,000 gallons per day and 300,000 gallons per year. The maximum turbidity of SPU discharge to the Port's stormwater infrastructure system shall not exceed 100 nephelometric turbidity units (NTUs). The average turbidity of each discharge event shall not exceed 25 NTUs. SPU shall endeavor to design and operate the Pipeline in a manner that will allow discharge to the Ports' stormwater infrastructure system without violation of the water quality standards of the State of Washington in Lake Reba and/or Miller Creek.

Any damage to the Port's infrastructure resulting from the purpose discharge shall be promptly repaired at SPU's expense. The Port does not warrant that its infrastructure is adequate to convey SPU's discharge at the rates specified in this agreement. Any improvements that may be necessary to make the Port's infrastructure capable of handling SPU's discharge shall be the responsibility of SPU and subject to a separate agreement.

5. SPU covenants that it will not discharge or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the pipeline on the Port's property. SPU agrees periodically to furnish the Port with proof, satisfactory to the Port that SPU is in such compliance. Should SPU not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, the Port may, at its option, terminate this License by serving five (5) days' notice of termination upon SPU. Upon termination, SPU shall remove the pipeline and restore the Port's property as herein elsewhere provided.

6. Any contractors or subcontractors performing work on the pipeline or entering the Port property described in Exhibits A, B, and C on behalf of SPU shall be deemed servants and agents of SPU for purposes of this License.

B. Term

This License Agreement shall commence on the Effective Date and continue unless either Party terminates the Agreement pursuant to Section F. The Effective Date shall be the date on which both parties to the Agreement have signed this Agreement, but shall in no case be earlier than the date the Plans and Specifications have been approved by the Port.

C. Maintenance of Pipeline and Isolation Valve to the Port's Stormwater Infrastructure

SPU shall install for the Port's use an isolation valve upstream from the Port's catch basin located below the North Employee Parking Lot. The isolation valve shall be capable of being opened and closed efficiently so as to protect the security of the Port's stormwater infrastructure.

The Port shall operate the isolation valve and that portion of the pipeline on Port property. The isolation valve will be normally kept in the closed position. After notification from SPU, Port maintenance personnel shall open the isolation valve before the scheduled discharge event and close the isolation valve after the discharge event is complete.

Other than routine "exercising" of the isolation valve, which will be performed by the Port, SPU shall be responsible for any and all maintenance and repairs to the isolation valve and pipeline, if needed.

D. Insurance

Exhibit D, a letter of City of Seattle's Self-Insurance Program, is attached to this License Agreement and is to provide verification of the City of Seattle's Liability SelfInsurance Programs for General Liability, including Environmental Liability, Automobile Liability and Worker's Compensation.

SPU must, at its sole cost and expense, procure and maintain during the life of this License a program of commercial insurance, self insurance, or a combination of commercial and self insurance that is acceptable to the Port. SPU's insurance program shall be reviewed by the Port annually and if found not to be acceptable, the Port shall provide written notice to SPU within thirty (30) days identifying any deficiencies in coverage. SPU shall have thirty days (30) to correct any of the deficiencies identified in coverage to include type of coverage and/or limits of coverage.

E. Release and Waiver

1. To the fullest extent permitted by law, SPU shall [and shall cause its contractor to] waive and release the Port and the Port's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, employees and agents (collectively, "releasees") for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs) environmental or otherwise (collectively "liabilities") of any nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related to (in whole or in part):

(a) this license, including, without limitation, its environmental provisions;

(b) any rights or interests granted pursuant to this license;

(c) SPU's occupation and use of the premises;

(d) the environmental condition and status of the premises caused by or contributed by SPU; or

(e) any act or omission of SPU or SPU's officers, agents, invitees, employees, or contractors, or anyone directly or indirectly employed by any of them, or anyone they control or exercise control over, even if such liabilities arise from or are attributed to, in whole or in part, any negligence of any indemnitee. The only liabilities with respect to which SPU's [and its contractor's] release does not apply are liabilities to the extent proximately caused by the gross negligence or willful misconduct of a releasee.

2. Further, to the fullest extent permitted by law, SPU shall and shall cause its contractor to now and forever waive and release any and all claims, regardless whether based on strict liability, negligence or otherwise, that the Port is an "owner", "operator", "arranger", or "transporter" for the purposes of CERCLA or other environmental laws with respect to the water and substances introduced by SPU into the Port's pipeline.

F. Indemnity

To the fullest extent permitted by law, SPU shall indemnify, defend, and hold harmless the Port and Port's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, employees and agents (collectively, "indemnitees") for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs) environmental or otherwise (collectively "liabilities") of any nature, kind or description, proximately caused by SPU's use of the premises pursuant to this license. This indemnity obligation includes claims that the Port is an "owner," "operator," "arranger," or "transporter" under CERCLA or other environmental laws with respect to the water and substances introduced by SPU into the Port's pipeline.

SPU further agrees that SPU's use of the premises as contemplated by this license shall not in any way subject the Port to claims that the Port is other than a common carrier for purposes of environmental laws and expressly agrees to indemnify, defend, and hold the indemnitees harmless for any and all such claims. In no event shall the Port be responsible for any environmental condition of the premises caused by SPU's use of the premises pursuant to this license.

G. Termination

Either party may terminate this License upon 30 days' written notice.

Upon termination of this License, if directed to do any or all of the following by the Port through written notice, SPU shall, at its sole cost and expense, perform any or all of the following:

1. Remove the Pipeline and all appurtenances thereto, across or under the Airport's North Employee Parking Lot property; alternatively, at the sole discretion of the Port, fill and cap or otherwise appropriately decommission the Pipeline in place using a method satisfactory to Port;

2. Report and restore any damage in the immediate vicinity of the Pipeline caused by SPU's use of the Pipeline;

3. Remedy any unsafe conditions in the immediate vicinity of the Pipeline created or aggravated by SPU as mutually agreed upon; and

4. Leave the immediate vicinity of the Pipeline in a substantially similar condition that existed prior to the installation of the Pipeline.

H. Monitoring

Before any discharge event, SPU shall take reasonable steps to determine whether the North Employee Parking Lot pond and conveyance has capacity adequate to accept the volume of intended discharge. SPU shall measure turbidity within five minutes of discharge to the Port's drainage system and at least one other time during the discharge event using US EPA Method 180.1 or equivalent. SPU shall monitor instantaneous and total flow to the Port's drainage system by visual methods. SPU shall immediately stop discharges to the Port's system and notify the Port if discharges exceed those limits specified in Section A.4 or other requirement of this agreement.

I. Conditions for Allowing Discharge into the Port's Stormwater Infrastructure

SPU must ensure the following conditions are met prior to any discharge into the Port's stormwater infrastructure:

1. Provide written notice to the Port representative two weeks in advance of discharge;

2. Unless specifically authorized by the Port, there shall be no discharge during rainy season; only during dry months of April 1-September 30;

3. No discharge if rain is forecast or if rain starts immediately prior to scheduled discharge;

4. No discharge if North Employee Parking Lot pond has a volume of water equal to or greater than one half the pond's total capacity. The total capacity of the pond is estimated to be 12.7 acre-feet;

5. Immediately stop discharge if rain starts; and

6. Water discharging into the Port's stormwater system shall contain less than 0.1 mg/L total chlorine.

J. Port Representative/Notice

The Port Representative for notice purposes shall be:

Chris Milewski, Aviation Environmental Seattle-Tacoma International Airport P.O. Box 68727 Seattle, WA 98168-0727

milewski.c@portseattle.org Office telephone: 206-787-4633 Mobile telephone: 206-605-8333

Notice may be provided by U.S. mail, delivery to address by messenger or courier, or email. If by U.S. mail, it shall be deemed delivered three days from post-marked date.

K. SPU Representative/Notice

The SPU Representative for notice purposes shall be:

Ulysses Hillard, Utility Systems Management Seattle Public Utilities 700 Fifth Avenue, Suite 4900 PO Box 34018 Seattle, WA 98124-4018

ulysses.hillard@seattle.gov Office telephone: 206-386-1518

Notice may be provided by U.S. mail, delivery to address by messenger or courier, or email. If by U.S. mail, it shall be deemed delivered three days from post-marked date.

L. No Warranties

Port's duties and warranties are limited to those expressly stated in this license and shall not include any implied duties or implied warranties, now or in the future. No representations or warranties have been made by Port other than those contained in this license. SPU hereby waives any and all warranties, express or implied, with respect to the premises or which may exist by operation of law or in equity, including, without limitation, any warranty of merchantability, habitability or fitness for a particular purpose.

M. No Covenant of Quiet Enjoyment

Port does not warrant its title to the property nor undertake to defend SPU in the peaceable possession or use thereof. No covenant of quiet enjoyment is made.

N. Default

If default shall be made in any of the covenants or agreements of SPU contained in this document, or in case of any assignment or transfer of this License by operation of law, the Port may, at its option, terminate this License by serving five (5) days' notice in writing upon SPU. Any waiver by the Port of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect the Port's ability to enforce any Section of this License.

O. Liens and Charges

SPU shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by SPU on the Pipeline. The Port is hereby authorized to post any notices or take any other action upon or with respect to the Pipeline that is or may be permitted by law to prevent the attachment of any such liens to the Pipeline; provided, however, that failure of the Port to take any such action shall not relieve SPU of any obligation or liability under this Section or any other Section of this License. SPU shall pay, when due, any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the pipeline by any governmental or quasigovernmental body or any Taxes levied or assessed against the Port or the Pipeline that are attributable to the Pipeline.

P. Survival

Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.

Q. Applicable Law

All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Washington without regard to conflicts of law provisions.

R. Integration/Entire Agreement

This License is the full and complete agreement between the Port and SPU with respect to all matters relating to SPU's License for the Pipeline and permission to discharge to the Port's stormwater infrastructure system, and supersedes any and all other agreements between the parties hereto relating to SPU's use of the Port property and licenses all as described herein.

IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written.

APPROVALS:

EXECUTED, this the _________ day of __________________, 2011.

SEATTLE PUBLIC UTILITIES PORT OF SEATTLE

___________________________ _______________________________

Ray Hoffman

Director

Seattle Public Utilities Port of Seattle

Exhibit A to Attachment 1 (21 KB PDF document)

Exhibit B to Attachment 1 (76 KB PDF document)

Exhibit C to Attachment 1 (655 KB PDF document)

Exhibit D to Attachment 1 (459 KB PDF document)