AN ORDINANCE relating to the Olympic Sculpture Park; authorizing the execution of a Construction and Finance Agreement and an Operation and Maintenance Agreement between the Seattle Department of Parks and Recreation and the Seattle Art Museum, concerning their roles in development, construction, and operation, and maintenance of portions of Alaskan Way Boulevard that will be operated as part of the Olympic Sculpture Park.

WHEREAS, On June 12, 2000, the Seattle Department of Parks and Recreation (DPR) and Seattle Art Museum (SAM) entered into a Design Agreement, beginning a cooperative design effort that resulted in a final design concept for the Olympic Sculpture Park (OSP), including the use of portions of Alaskan Way Boulevard and improvements to Myrtle Edwards Park; and

WHEREAS, DPR and SAM have acknowledged the public benefits from a consistent design philosophy being applied to the OSP and portions of Alaskan Way; and

WHEREAS, the OSP will be free of charge and open to the public; and

WHEREAS, the OSP will create a seamless connection from Belltown to Myrtle Edwards Park; and

WHEREAS, the Construction and Finance Agreement will give SAM the authority to make improvements to Alaskan Way Boulevard and certain areas within Myrtle Edwards Park; and

WHEREAS, the Operations and Maintenance Agreement defines DPR's and SAM's roles in operating and maintaining the public property to Alaskan Way Boulevard and certain areas within Myrtle Edwards Park, which will be improved as part of the OSP project; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Superintendent of Parks and Recreation, or his designee, is authorized to execute an Agreement, substantially in the form of Attachment A, to this ordinance, to delineate the relative roles and responsibilities of the Seattle Art Museum and the Department of Parks and Recreation with respect to construction on the Alaskan Way Boulevard and certain areas within Myrtle Edwards Park, and regarding the dispersal of funds allocated through the Pro Parks Levy program.

Section 2. The Superintendent of Parks and Recreation, or his designee, is authorized to execute an Agreement, substantially in the form of Attachment B, to this ordinance to delineate the relative roles and responsibilities of the Seattle Art Museum and the Department of Parks and Recreation with respect to operation and maintenance of the public property within the Olympic Sculpture Park.

Section 3. Any act consistent with the authority granted by and prior to the effective date of this ordinance is herby ratified and confirmed.

Section 4. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of _________, 2005, and signed by me in open session in authentication of its passage this _____ day of __________, 2005. _________________________________ President __________of the City Council

Approved by me this ____ day of _________, 2005. _________________________________ Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2005. ____________________________________ City Clerk

Attachment A: Construction and Finance Agreement Attachment B: Operations and Maintenance Agreement

10/17/2005 September 6, 2005 version #2a ta

ATTACHMENT A:

CONSTRUCTION AND FINANCE AGREEMENT BETWEEN THE CITY OF SEATTLE AND SEATTLE ART MUSEUM FOR WORK ON PUBLIC PARK PROPERTY ASSOCIATED WITH OLYMPIC SCULPTURE PARK

This Agreement is entered into between The CITY OF SEATTLE, a Washington municipality ("City"), and the SEATTLE ART MUSEUM, a Washington nonprofit corporation ("SAM"), and is consented to by the MUSEUM DEVELOPMENT AUTHORITY OF SEATTLE, a public corporation chartered by the City of Seattle ("MDA"), regarding the construction and financing of certain improvements associated with the Olympic Sculpture Park (OSP) on public park property known as Myrtle Edwards Park and Alaskan Way Boulevard.

RECITALS

A. The City approved a tax levy known as The 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy as proposed by Ordinance 120024 and approved by Seattle voters on November 7, 2000. One of the provisions of the 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy was funding for a waterfront connection from Myrtle Edwards Park to the Belltown Area. The design of the Olympic Sculpture Park together with the Grant of Access realizes that objective by incorporating a public connection from Belltown to Elliott Bay via pedestrian pathways (at grade and above grade) and skybridges over public rights of way.

B. On October 24, 2005, the City of Seattle enacted Ordinance #115429, which granted a Skybridge Permit ("Permit") to SAM to construct and maintain for a period of twenty-five (25) years, and renewable for an additional twenty-five (25) years upon the conditions specified in the aforesaid Permit, two skybridges; one across Elliott Avenue and one across Alaskan Way. As a condition of that Permit, SAM must execute and deliver to the City a Grant of Access, which grants certain rights of public access over and upon the skybridges and pathways within a Public Access Area as defined in the Grant of Access; and

C. In addition to the above referenced legislation, Grant of Access, and this Construction and Finance Agreement, the City and SAM intend to enter into an agreement regarding the operation and maintenance of certain elements of the OSP, the aforementioned skybridges and pathways, and the City-owned Boulevard.

D. The City adopted Ordinance No. 121721 on February 2, 2005 designating Alaskan Way to be Alaskan Way Boulevard (a park boulevard) north of Broad Street and south of the northern edge of Bay Street as a "park boulevard" and transferring jurisdiction for the designated area from Seattle Department of Transportation to the Department of Parks and Recreation (DPR) providing for transportation, trail and utility purposes to continue.

E. The above-described Alaskan Way Boulevard shall hereafter, be referred to as "the Boulevard.

F. The Boulevard, as well as portions of Myrtle Edwards Park are supported by a seawall which is a significant structural element supporting lands to its east.

G. The City and SAM have acknowledged the public benefits to be derived from a consistent design philosophy applied to the Olympic Sculpture Park, the connection to the Boulevard and other improvements including a salmon habitat restoration project at the juncture of the shoreline between the Olympic Sculpture Park and Myrtle Edwards Park by installation of a natural beach, each of which is described in that agreement titled "Design Agreement" executed by the City and SAM in accordance with Ordinance No. 119982 approved June 12, 2000,.

H. Although it will consist of both privately owned and publicly owned property, both the privately owned land and the publicly owned land will be operated by SAM as the Olympic Sculpture Park as

provided in the Skybridge Ordinance, the Operation and Maintenance Agreement and the Grant of Access.

I. SAM has committed to contributing $2 million towards public improvements within the Olympic Sculpture Park as depicted in the 100% Construction Drawings for the OSP.

J. The Museum Development Authority of Seattle, a public corporation chartered by the City of Seattle ("MDA"), is owner of the real property legally described on Exhibit 3, attached to the Grant of Access and incorporated herein ("Parcel D" or "MDA Property"). For general reference only, that parcel is indicated with the letter D on Exhibit 2 to the Grant of Access. MDA acquired the MDA Property from the City subject to use and development restrictions, including the requirement that the MDA Property be used and developed only as a sculpture garden, park or other open space as part of the SAM Olympic Sculpture Park ("OSP"), with public access free of charge in perpetuity. MDA also is lessee of the SAM Property under a lease from SAM for the purpose of conducting certain environmental work, subject to a sublease and operating agreement back to SAM. SAM is developing the OSP on the SAM Property and, pursuant to a ground lease from MDA, the MDA Property.

NOW, THEREFORE, in consideration of the Recitals and the mutual promises and provisions hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

Pursuant to the terms of this Agreement, which is subject to approval by appropriate Ordinance, the delivery of a fully executed Operation and Maintenance Agreement, and conditioned upon delivery by SAM of the Grant of Access called for under the Skybridge Permit and the completion of those improvements to the OSP set forth in Section 5 of this Agreement, including installation of the Broad Street pathway, the City agrees to pay SAM the sum of $2.1 as provided herein.

1. IDENTIFICATION OF PARTIES AND PROPERTY AFFECTED BY THIS AGREEMENT

A. Property. This Agreement pertains to the Olympic Sculpture Park (OSP) consisting of both privately owned and publicly owned lands including portions of Alaskan Way ("the Boulevard"), as described in Ordinance No. 121721, together with portions of Myrtle Edwards Park, all more specifically described in Exhibit A attached hereto and as shown on the Map designated as Exhibit B, also attached.

B. Parties. The parties to this Agreement are the City of Seattle, the Seattle Art Museum, which is developing the Olympic Sculpture Park. The MDA is signing the Consent attached hereto.

2. EXHIBITS TO AGREEMENT A. Exhibit A Property Description B. Exhibit B Site Map C. Exhibit C Plans and Specifications for construction within Alaskan Way and Myrtle Edwards Park as submitted and permitted for construction by Seattle Department of Planning and Development D. Exhibit D Embayment Plan/ Seawall Buttressing Plan E. Exhibit E Skybridge Ordinance 115429 ("the Permit") including form of Grant of Access F. Exhibit G Operation & Maintenance Agreement

3. DEFINITIONS

A. "City" means The City of Seattle.

B. "SAM" means Seattle Art Museum.

C. "OSP" generally means the Olympic Sculpture Park, including both SAM-owned parcels and the city-owed Alaskan Way Boulevard ("the Boulevard").

D. "DPR" means Seattle Department of Parks and Recreation.

E. "SDOT" means Seattle Department of Transportation.

F. "Skybridges" means the two elevated pedestrian and wheelchair accessible walkways which are the subject of the Permit.

G. "Elliott Avenue Skybridge" means the elevated pedestrian walkway above Elliott Avenue.

H. "Alaskan Way Skybridge" means the elevated pedestrian walkway above the Burlington Northern Santa Fe Railway (or lower-case railroad) franchise area connecting Broad Street to the Boulevard. The Alaskan Way Skybridge includes the ramp, stairs and abutment where it connects with Broad Street and the Boulevard

I. "BNSF" means the Burlington Northern Santa Fe Railway franchise area in the Alaskan Way park boulevard.

J. "ProParks Levy" means The 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy.

K. "Embayment" means the beach, which will be installed by SAM pursuant to the terms of this Agreement, at the juncture of the shoreline between the Olympic Sculpture Park and Myrtle Edwards Park.

L. "Boulevard" means that portion of Alaskan Way north of Broad Street and south of the northern edge of Bay Street designated as park Boulevard by Ordinance 121721. The term "the Boulevard" excludes the ramp, stairs, abutment and any other component that are part of the Alaskan Way Skybridge, as defined above

M. "Seawall Buttress" means 'the buttressing for the seawall adjoining that portion of the Boulevard to be constructed pursuant to the terms of this Agreement.

N. "Grant of Access" means an at and above grade pedestrian and wheelchair accessible access area as provided in the Skybridge Ordinance and Grant of Access.

O. "VEE" means the at and above grade structure stretching between Western Avenue and Alaskan Way, upon which is located the pedestrian and wheelchair accessible pathway traversing the OSP.

P. "Connection Work" means the work which is the subject of this Agreement to make the Belltown to Waterfront pedestrian connection.

4. TERM

The term of this Agreement shall be five (5) years and shall terminate upon completion of the construction activities called for under its terms. The termination date may be extended by the City for an additional period not to exceed two (2) years, to allow SAM to complete the work called for herein, unless otherwise modified in writing upon mutual agreement of the parties.

5. PAYMENT

The work to provide the Belltown to Waterfront connection and the Boulevard improvements consists of all of the following as depicted on the 100% Construction Drawings: the paths (including the Broad Street path) and skybridges linking Western Avenue to the Boulevard and the improvements to the Boulevard, to be constructed on both land owned by SAM and on public property, to create the Belltown to Waterfront connection envisioned in the Pro-Parks 2000 Levy; referred to collectively as the "Connection Work".

A. Prerequisites to Payment. Upon completion of the construction by SAM of the Connection Work, the City shall pay SAM an amount not to exceed $2,100,000 for the completed improvements. Payment of the City funds is conditioned upon (a) the execution of and compliance with the material terms of this Agreement, (b) SAM's execution and delivery to the City of the Grant of Access, in the form contained in Exhibit E hereto, (c) the execution of the Operating and Maintenance Agreement attached as Exhibit F hereto; (d) Seattle City Council adoption of ordinances approving each of these Agreements.

B. Pursuant to the terms of this Agreement, SAM represents and warrants to the City that prior to the commencement of construction of the improvements called for herein, SAM shall have secured all of the funds, financing or other firm commitments and shall have obtained all permits necessary to execute all of the work depicted on the 100% construction drawings as described in this Agreement.

C. Upon substantial completion of the Connection Work SAM shall within 30 days, submit to the DPR , a detailed written pay request (or invoice) together with such supporting documentation as DPR shall request, demonstrating to the satisfaction of the City that SAM has incurred the expenses identified therein and has completed the Connection Work. Upon Physical Completion of the Connection Work, SAM shall certify to the City that all of the Connection Work of the project has been completed, all payment requests have been delivered to the City and all of the contractors, subcontractors and material men of the project have been paid and all taxes, wages and benefits have been paid or discharged. In the event that the pay request is not complete or is lacking in necessary supporting documentation, DPR shall return the same to SAM identifying the deficiencies in writing and requesting that SAM resubmit the pay request. If the pay request is deemed by DPR to be sufficient, DPR shall inspect the Connection

Work, and either accept or reject the Connection Work. In the event that DPR rejects the Connection Work, it shall notify SAM in writing of any deficiency and SAM shall undertake to remedy the deficiency before re-submitting the pay request. The City will make every effort to review and reimburse SAM promptly upon of receipt of a fully supported pay request. DPR approval and or payment of any payment request or of any series or all such payment requests shall not relieve SAM or its contractors or subcontractors of any obligation under this Agreement.

6. PUBLIC WORKS

A. All project components to be constructed or installed on public property shall be constructed as Public Works, except to the extent any work may be exempted by law. Public Works are defined in, and subject to, the laws of the State of Washington and the Seattle Municipal Code. SAM shall cooperate with the City's Department of Executive Administration (DEA) Contract Services to prepare or direct the preparation of all bid packages and manage the bid process. SAM shall be responsible for the generation and management of all documentation necessary to the administration of the project as a Public Work and shall submit the same for approval.

B. Any and all bids, documentation and processes shall be subject to review and approval by the City's Department of Executive Services Administration (DEA), Contracting Services Division.

C. Prior to commencement of construction of any portion of the work described in this Agreement that are to be constructed or installed on public property, SAM shall furnish in a form and amount acceptable to the City such surety bonds and proof of insurance as described below in Section 16 of this Agreement ("Insurance and Bonds").

D. DEA Contracting Services together with project management through DPR shall administer all contract payments made by the City.

7. RIGHT OF ENTRY FOR CONSTRUCTION PURPOSES

This Agreement shall constitute the City's permission to SAM to enter upon and construct the improvements as shown on the attached Exhibits B and C, and to enter Alaskan Way to construct the improvements relating to the new streetcar trolley tracks, station and related facilities. All such work shall be constructed in accordance with the above mentioned "Exhibits" and subject to the conditions noted below. Provided, however, this right of entry and consent to construction shall not relieve SAM of the obligation to obtain any building or construction permit, shoreline permit, or other permit, license or permission otherwise required for the construction of the improvements called for herein.

8. FINAL PLAN REVIEW AND COMMENT

Prior to commencing any construction work, SAM shall provide DPR 100% Construction Drawings (CDs) for final review and comment to assure that final Plans and Specifications conform to City Standards as noted below and to assure that they conform to the agreed upon design. The form and format (including both paper and electronic versions) of the CDs shall be as directed by DPR and SAM shall bear all expenses associated therewith. Within 10 working days, DPR shall either approve the same or return them for correction. Upon approval, SAM shall submit the approved 100% Construction Drawings to DEA, Contracting Services, for advertising any contract for public bid, to the extent bidding is required. SAM will assign to the City a non-exclusive right, along with SAM, to use the drawings and designs to build the improvements within the Boulevard and the Skybridges, subject to SAM's architects approval. The review and comment supplied by DPR shall not relieve SAM of the obligation to obtain any necessary permits or relieve it of the obligation to conform to applicable design and building codes.

9. CONSTRUCTION PHASE

A. SAM shall not commence construction within the Boulevard or the Alaskan Way Skybridge, until it has been given written Notice to Proceed by DPR. DPR will not issue the Notice to Proceed until all of the conditions of this Agreement have been met and all permits necessary for the construction of the work within Alaskan Way and for the Alaskan Way Skybridge have been issued.

B. In administering any construction contract relating to the Boulevard and the Alaskan Way Skybridge, SAM shall adhere to the following City processes:

1). Reject any work that does not conform to the Contract Documents submitted to DPR. Reject and halt any work that is deemed to be hazardous, in violation of code, or otherwise involve a health or safety issue that jeopardizes a worker or the public at large.

2). Prepare Modification Proposals and Change Orders for approval by DPR. A Modification Proposal is a written proposal originated by SAM, and is required in each instance where SAM intends to alter the appearance, usage or durability, product or feature of the agreed design of any aspect of the work whether or not the same will result in an increase in cost to the City and if so the full amount of such increase, exclusive of taxes. A Change Order is a written directive originated by the City directing SAM to execute additional work and specifying the amount to be allowed therefore, exclusive of taxes. Neither Modification Proposals nor Change Orders shall be deemed to have any effect unless and until they are signed by both DPR and SAM.

3). At the conclusion of the work and prior to the City's Final Acceptance SAM shall furnish DPR with two (2) original complete sets of: Mylar drawings ("record" drawings), reflecting the final "as built" condition of the Project. When originals are submitted, they shall be on City-approved Mylar. The "record" drawings shall also be provided to DPR in electronic format (Auto CAD 2000 or later version) on compact discs as vector diagrams and delivered with Mylar drawings. Black background prints are not acceptable. The electronic media shall be compatible with City of Seattle CAD Line Weight and Symbols and additionally SAM shall furnish one CD with all files in PDF format. SAM will assign to the City a non-exclusive right, along with SAM, to use the drawings and designs to build the improvements within the Boulevard and the Skybridges, subject to SAM's architects approval.

4). SAM shall review for accuracy and provide to DPR, contractor copies of all maintenance manuals, which may include operating manuals, equipment brochures, paint schedules and material brochures, to DPR, bound in loose leaf binders, appropriately labeled, indexed and tabbed. SAM shall develop and provide, at physical completion, and shall upon completion, furnish the Management Plan as provided in the Operation and Maintenance Agreement.

10. PLACEMENT OF ARTWORK

A. For any work contracted for by SAM after the date of this Agreement that will be located within the Boulevard, the Elliott Avenue Skybridge, the Alaskan Way Skybridge, the Embayment, or Seawall buttress, SAM shall not contract for, nor shall it place any artwork including any works of visual art including any painting, mural, drawing, print, sculpture, mosaic or still photograph, as the same are defined in the Visual Artists Rights Act (VARA) 17 U.S.C. section 101, as now enacted or hereafter modified, , without first having either (i) determined that VARA will allow removal or relocation of the artwork or (ii) obtained from the artist a written waiver and agreement in a form approved by the City, waiving any right to the permanent emplacement of said artwork, and which written waiver and agreement grants to SAM and to the City the right of, removal or relocation of said work. In contracting for any maps, visitor guides or directories, SAM shall require that the contract therefore specifically exclude the same from the defined coverage's afforded artwork by VARA.

B. The existing agreements for the creation and placement of the fountain entitled, Father and Son, by artist Louise Bourgeois, at the entry plaza with the Boulevard, allow SAM to relocate the work, subject to consultation with the artist and concurrence with the oversight committee. For any other work acquired or contracted for by SAM before the date of this Agreement, SAM will not place any work covered by VARA on the Boulevard, the Elliott Avenue Skybridge, the Alaskan Way Skybridge, the Embayment, or Seawall buttress that cannot be removed or relocated pursuant to VARA or pursuant to the terms of any agreement or waiver with the artist.

C. SAM will indemnify, defend and hold harmless the City from any claims, actions, suits, liability, loss, costs, expenses or damages of every kind and description arising under VARA for any work placed by or with the permission of SAM on the Boulevard, the Elliott Avenue Skybridge, the Alaskan Way Skybridge, the Embayment, or Seawall buttress.

THIS NEXT SECTION 11 NOW COMBINED WITH SECTION 5

11. EQUAL OPPORTUNITY AND OUTREACH

As it pertains to any portions of the work executed on publicly owned land,

A. As it pertains to activity governed by this Agreement, SAM shall not discriminate against any employee or applicant for employment because of race, religion, creed, age, color, sex, marital status, sexual orientation, gender identity, political ideology, ancestry, national origin, or the presence of any sensory, mental or physical handicap unless based upon a bona fide occupational qualification. SAM shall take affirmative action to ensure that applicants are employed, and the employees are treated during employment, without regard to their creed, religion, race, age, color, sex, national origin, marital status, political ideology, ancestry, sexual orientation, gender identity, or the presence of any sensory, mental or physical handicap. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation and selection for training, including apprenticeship. SAM shall post in conspicuous places, available to employees and applicants for employment, notices as provided by the City of Seattle setting forth the provisions of this nondiscrimination clause.

B. SAM shall encourage the use of women and minority employees and apprentices on this project and encourage outreach efforts in employment opportunities. Outreach efforts may include use of targeted solicitation lists, advertisements in publications directed to underrepresented communities, providing student internships or apprentice opportunities, noting SAM's Equal Employment Opportunity (EEO) policy in solicitations, emphasizing EEO and outreach policies within SAM and using the services of available minority community and public organizations to perform outreach

12. NONDISCRIMINATION IN EMPLOYEE BENEFITS

To the extent SMC Ch. 20.45 is applicable to this Agreement on any portions of the work to be executed on publicly owned land; SAM shall have the following obligations:

A. Compliance With SMC Ch. 20.45: SAM, as it pertains to any construction activity governed by this Agreement, shall comply with the requirements of SMC Ch. 20.45 and Equal Benefits Program Rules implementing such requirements, under which the SAM is obligated to provide the same or equivalent benefits ("equal benefits") to its employees that are involved in the construction activity governed by this Agreement with domestic partners as the SAM provides to its employees with spouses. At the City's request, the SAM shall provide complete information and verification of the SAM's compliance with SMC Ch. 20.45. To the extent SMC Ch. 20.45 is applicable to this Agreement, then failure to cooperate with such a request shall constitute a material breach of this Agreement, after delivering a written notice and expiration of the time for under Section 25 (Default) below. (For further information about SMC Ch. 20.45 and the Equal Benefits Program Rules call (206) 684-0430 or review information at http://cityofseattle.net/contract/equalbenefits.)

B. Remedies for Violations of SMC Ch. 20.45: : If and to the extent SMC Ch. 20.45 is applicable to this Agreement, then any violation of this Section 13 shall be a material breach of this Agreement for which the City, after delivering a written notice and expiration of the time for under Section 25 (Default) below, may:

1). Require SAM to pay actual damages for each day that SAM is in violation of SMC Ch. 20.45 during the term of the Agreement; or

2). Terminate the Agreement; or

3). Impose such other remedies as specifically provided for in SMC Ch. 20.45 and the Equal Benefits Program Rules promulgated there under.

13. OTHER LEGAL REQUIREMENTS

A. General Requirement: SAM, at no expense to City shall comply with all applicable laws of the United States and the State of Washington, the Charter and ordinances of City; and rules, regulations, orders, and directives of their administrative agencies and the officers thereof. Without limiting the generality of this paragraph, SAM shall specifically comply with the following requirements of this section.

B. Licenses and Similar Authorizations: SAM at no expense to City, shall secure and maintain in full force and effect during the term of this Agreement all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof.

C. Use of Recycled Content Paper: SAM shall use, whenever commercially reasonable and practicable, recycled content paper on all documents submitted to City in accordance with SMC 20.60.218.

D. Americans With Disabilities Act: SAM shall comply with all applicable provisions of the Americans With Disabilities Act of 1990 (ADA) in performing its obligations under this Agreement. Failure to comply with the provisions of the ADA shall be a default subject to the notice and cure provisions of Section 25 below.

E. Fair Contracting Practices Ordinance: SAM shall comply with the Fair Contracting Practices Ordinance of the City of Seattle (Ordinance 119601), as amended. Conduct made unlawful by that ordinance constitutes a breach of contract. Engaging in an unfair contracting practice may also result in the imposition of a civil fine or forfeiture under the Seattle Criminal Code as well as various civil remedies.

14. INDEMNIFICATION

A. SAM, by entering into this Agreement, hereby releases the City from any and all claims resulting from damage or loss to its own property and does covenant and agree for itself, its successors and assigns, The City of Seattle, to at all times indemnify, defend and save harmless The City of Seattle from all claims, actions, suits, liability, loss, costs, expenses or damages of every kind and description (excepting only such damages that may result from the sole negligence of the City), which may accrue to, or be suffered by, any person or persons and/or property or properties, including without limitation, damage or injury to SAM, its officers, agents, employees, contractors, invitees, tenants and tenants' invitees, licensees or its successors and assigns, by reason of the maintenance operation or use of improvements or any portion thereof made pursuant to this or any other agreement between the parties hereto regarding the OSP.

B. In any action against the City of Seattle, by any employee of SAM, its contractor, subcontractors, sub-subcontractors, agents, or anyone directly or indirectly employed by any of them, the indemnification obligation of this Section shall not be limited by a limit on the amount or type of damages, compensation, or benefits payable by or for SAM, its contractor or any subcontractor under RCW Title 51, the Industrial Insurance Act, or any other employee benefit acts. Likewise, any City indemnification in the event of concurrent negligence shall not be limited by RCW Title 51. In addition, SAM and the City each waives immunity as to the City of Seattle only or SAM only, as applicable, in accordance with RCW Title 51 and shall require that in any construction contract, that it shall require its contractor to waive such immunity.

C. If it is determined by a court of competent jurisdiction, that RCW 4.24.115 applies to this ordinance or that other concurrent negligence has occurred, then in the event claims or damages are caused by or result from the concurrent negligence of:

1). The City, its agents, contractors or employees; or 2). SAM, its agents, contractors, or employees.

Then each party shall indemnify the other to extent of that party's negligence.

15. INSURANCE AND BONDS

A. INSURANCE. The following minimum insurance requirements shall apply to this Agreement.

1). Coverage's and Limits of Liability

a). SAM Liability Insurance. SAM, at no expense to the City, shall maintain continuously throughout the Term of this Agreement Commercial General Liability (CGL) and Automobile Liability insurance with a limit of liability of not less than $10,000,000 each occurrence of combined single limit bodily injury and property damage for claims occurring on, in or about the OSP property.

b). SAM Property Insurance. During the course of construction, SAM shall maintain all builders risk property insurance on the improvements within the Boulevard with a limit of liability of not less than the sum of the total construction contract values, the total design consultant contract values and sales tax. SAM shall cause its property insurer(s) to provide an insurer's waiver of subrogation in favor of the City.

2). Consultant and Contractor Insurance.

a). SAM shall require that all design team members, construction management consultants, program management consultants and environmental consultants on the project with whom it contracts that render professional services on the OSP project maintain professional liability insurance with a minimum limit of liability of $1,000,000 each claim or any greater limit that SAM deems prudent.

b). During the course of construction, SAM shall cause all contractors to maintain CGL and Automobile Liability and Umbrella/Excess insurance as required with a limit of liability of not less than $5,000,000 each occurrence of combined single limit bodily injury and property damage for claims occurring on, in, or about the OSP property. CGL insurance shall include Premises/Operations, Products/Completed Operations, Contractual Liability, Independent Contractors and Stop Gap/Employers Liability. SAM shall, in addition, incorporate subparagraph B. herein ("Terms and Conditions") in all contractor agreements.

c). During the course of construction, SAM shall cause all contractors to maintain Worker's Compensation insurance in accordance with the provisions of Title 51 of the Revised Code of Washington (RCW) and contractors shall be responsible for ensuring that workers compensation insurance is in force for any subcontractor. Additionally, if the scope of work requires working in, on or around a navigable waterway, the contractor and any subcontractor, if legally required to do so, shall maintain United States Longshore and Harbor Workers Act (USL&H) coverage and Jones Act in compliance with Federal Statutes. If the contractor is qualified as a self-insurer in accordance with chapter 51 RCW, it shall so certify to the SAM and to the City.

3). Terms and Conditions

a). As respects SAM and contractor liability insurance, the City shall be an additional insured for primary and noncontributory limits of liability as documented by a copy of an additional insured endorsement or a copy of blanket additional insured policy wording.

b). Limits of liability referenced herein are minimum limits only and shall not be construed as limiting neither the liability of SAM or any SAM contractor nor the liability of any insurer of SAM or any SAM contractor.

c). Insurers shall have a minimum AVII A.M. Best's rating unless procured under the provisions of chapter 48.15 RCW or otherwise approved by the City.

d). Insurers shall provide 45 day written notice of cancellation to the City in accordance with chapter 48.18.290 RCW, except 30 days for insurance policies procured under the provisions of chapter 48.15 RCW and 10 days for non-payment of premium.

e). Current certification of insurance, including a copy of an additional insured endorsement or a copy of blanket additional insured policy wording, shall be maintained on file with the City at the address specified in Section 15. ("Notices") of this Agreement.

B. BONDS

Prior to the commencement of any work under the provisions of this Agreement, SAM shall furnish the following:

1). Payment and performance bonds for 100% of the estimated construction cost of the work to be performed for the Alaskan Way Skybridge, including all Change Orders and state sales tax, in a form acceptable to the City. No payment or performance bond is required if the Contract Amount is $25,000 or less and Contractor agrees that the City may, in lieu of the bond, retain 50% of the Contract Amount for the period allowed by RCW 39.08.010.

C. ADDITIONAL BOND SECURITY

In addition to the foregoing, and upon notice from the City, SAM shall require any contractor to promptly furnish additional security required to protect the City and persons supplying labor or materials required by the Contract Documents if:

1). The City has a reasonable objection to the surety; or

2). Any surety fails to furnish reports on its financial condition if requested by the City.

16. ENVIRONMENTAL INDEMNITY

The parties acknowledge the existing Environment Agreement between the City and SAM dated December 7, 1999 ("Environmental Agreement"). No change of rights, obligations, or responsibilities under the existing Environmental Agreement shall occur as a result of this Agreement, except as expressly provided in this section. SAM shall be responsible for any and all costs that arise from or are related to soil removal, if required, and recapping of soil, if required, to the extent required to complete SAM's construction of the OSP. Such costs include, but are not limited to, disposal of contaminated soil or groundwater that is removed during construction replacement of material that is capping contaminated soil and is disturbed during construction mitigation measures required by permitting authorities, and worker safety measures required for construction on a contaminated site. The Consent Decree means the "Prospective Purchaser Consent Decree Re: The Former Unocal Seattle Marketing Terminal Property, Seattle, WA, entered under King County Superior Court No. 99-2-50226-4 SEA on December 7, 1999. The Consent Decree as stipulated above will be held in place until such time the project is complete, at which time the restrictive covenants will remain in perpetuity.

17. EQUALITY IN CONTRACTING:

SAM shall comply with the requirements of the City's "Equality in Contracting Ordinance" (SMC 20.42.010 et seq). In addition to the other requirement of that act, prior to advertising to bid any portion of the Connection Work executed on publicly owned property, SAM and the Director of DPR shall adopt a plan, developed in consultation with the Director, to afford Women and Minority Businesses the maximum practicable opportunity to directly and meaningfully participate on City Contracts. The plan shall include specific measures the Contract awarding authority will undertake to increase the participation of Women and Minority Businesses. Each Contract awarding authority shall make efforts to comply with any goals established in the plan for that Contract awarding authority under these provisions for public works, consultant services and procuring goods or services. The Contract awarding authority may also establish aspiration goals for the participation of Women and Minority Businesses in a particular City Contract on a case-by-case basis.

18. GOVERNING LAW

Except as provided in the preceding sentence, the City and SAM retain all rights and obligations as set forth in the Environmental Agreement. This Agreement shall be governed by the laws of the State of Washington. Venue of any action brought by one party against the other under this Agreement shall be in King County Superior Court.

19. NOTICES

All notices required to be given under this Agreement shall be in writing and either delivered personally or sent by United States Certified Mail, postage prepaid, return receipt requested, to the appropriate addresses listed below or at such other address as shall be provided by written notice. Notice shall be deemed communicated to the parties 3 business days from the time of mailing if mailed as provided in this section. For convenience purposes only, and not to satisfy the requirement to give written notice, copies of notices also may be given by other means.

If to SAM: Seattle Art Museum P O BOX 22000 Seattle, WA 98122 Telephone: 206 654-3100 FAX: 206 654-3135 Attn: Director

If to City: City of Seattle Department of Parks and Recreation 100 Dexter Avenue N. Seattle, WA 98109 Attn: Superintendent of Parks and Recreation

20. CONTRACTUAL RELATIONSHIP

The relationship of SAM to the City by reason of this Agreement shall be that of an independent contractor. This Agreement does not authorize SAM to act as the agent or legal representative of the City for any purpose whatsoever. SAM is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City or to bind the City in any manner or thing whatsoever.

21. NO CONFLICT OF INTEREST

SAM confirms that SAM does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the consultant selection, negotiation, drafting, signing, administration, or evaluating SAM's performance. As used in this section, the term "SAM" shall include any employee of SAM who was, is, or will be involved in the negotiation, drafting, signing, administration, or performance of the Agreement. As used in this section, the term "close family relationship" refers to the following: spouse or domestic partner; any dependent parent, parentin-law, child, son-in-law, or daughter-in-law; or any parent, parentin-law, sibling, uncle, aunt, cousin, niece or nephew residing in the household of a City officer or employee described above.

22. ERRORS AND OMISSIONS; CORRECTIONS

SAM shall be responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other services furnished by or on the behalf of SAM under this Agreement SAM, without additional compensation, shall correct or revise any errors or omissions in the designs, drawings, specifications, and/or other work immediately upon notification by the City at a level commensurate with the professional quality, technical accuracy and coordination maintained on similar projects in the State of Washington. The obligation provided for in this section with respect to any acts or omissions during the term of this Agreement shall survive any termination or expiration of this Agreement.

23. INTENTIONALLY OMITTED

24. DEFAULT, CURE, REMEDIES, DISPUTE RESOLUTION

A. Default and Cure. Upon being given written notice of failure to perform or comply with a term or condition of this Agreement, the notified party shall promptly undertake such reasonable steps as shall be necessary to cure the specified failure. If that party fails to promptly undertake reasonable steps to perform or comply, or fails to cure the specified failure within 60 days after written notice is given, that party shall be deemed to be in default of this Agreement. Provided, however, that in the event that the parties agree that cure cannot reasonably occur within such 60-day period, then the Parties shall agree upon a reasonable period of time for the defaulting party to affect a cure. If at the end of that additional period of time cure has not been made, that party shall be deemed in default of this Agreement. Failure to cure after the applicable time period shall be an "Event of Default." If the parties are participating in dispute resolution under Section 25(D), then the time period for cure shall not commence until completion of the dispute resolution.

B. Receiver. The appointment of a receiver to take possession of all or substantially all of the assets of SAM or other action taken or suffered by SAM under any bankruptcy, reorganization, or other statute of similar nature, if such receiver or action has not been released, discharged, dismissed, or vacated within 60 days, shall constitute a breach of this Agreement, and the breaching party shall be in default of this Agreement.

C. Remedies. If there is an uncured Event of Default of this Agreement, then the non-defaulting party shall have all rights and remedies at law or in equity. If the uncured Event of Default relates to a fundamental obligation under this Agreement, then the non-defaulting party shall have the right to terminate this Agreement. Any proposed termination due to an uncured Event of

Default by SAM shall require compliance with Ordinance No. 118477 (Initiative 42). Upon any termination by the City for an uncured SAM Event of Default, the City in its discretion may retain the park improvements as constructed within the Boulevard and Alaskan Way Skybridge, but not any artwork, for the use of the public, or may require SAM to demolish said improvements and restore the site to its condition at the time of the execution of this Agreement. Sam shall remove all art works from public property within 60 days of the termination of the Agreement and shall indemnify the City against any and all losses related to such art works during the removal period and shall, in addition to the obligations arising under the indemnity provisions of this Agreement, indemnify, defend save and hold the City harmless from any claim, defense or other legal action arising under the Visual Artists Rights Act (VARA) 17 U.S.C. section 101, as now enacted or hereafter modified.

D. Dispute Resolution. In the event that any dispute or misunderstanding arising under this Agreement concerning SAM's or the City's performance cannot be resolved through amicable negotiations, between SAM's Project Manager and the City's Project Manager, the matter shall be referred to the Superintendent, Seattle Parks & Recreation Department and SAM's senior executive(s). If such officials do not agree upon a decision, the parties shall then submit the matter to a non-binding alternate dispute resolution process.

DELETED SECTION 26 TO ELIMINATE REDUNDANCY

25. PUBLIC SAFETY

During construction within the Boulevard, SAM, its contractor or agent shall provide such security measures as deemed appropriate to protect public safety, including, but not limited to, vehicle or pedestrian barricades, fencing, flaggers or other traffic controls, as necessary.

26. PUBLIC ACCESS DURING CONSTRUCTION

A. SAM shall ensure safe and continuous public access over the Boulevard to all trail users including, but not limited to pedestrians, bicyclists and others at all times during the construction of the improvements described herein, but subject to temporary closure in coordination with DPR, by SAM when prudent for safety during construction activities. Adequate, safe detours throughout the Boulevard and Myrtle Edwards Park, or temporary closures, will be provided as circumstances merit. SAM will provide project signage and public notice along all trails at least one (1) month prior to the start of any construction activity. Signs shall be erected facing the traveled portions of the Boulevard providing information concerning the work and the use of the Boulevard. Signs will contain information regarding any notices of detour or other relevant information. Signs shall be no smaller than 24 by 36 inches, weather resistant, constructed of 1/2 inch MDO (plywood) painted white with black lettering.

B. During construction, SAM shall also ensure safe public access over the Boulevard to "Special Events," including but not limited to the Fourth of July celebration, City approved festivals and such other events that may be approved by the City's Special Events Committee.

27. LOCKS, CITY MAINTENANCE ACCESS, AND EMERGENCY ACCESS

SAM shall provide keys to gates and other barriers that may be installed throughout the Boulevard portion of the OSP to the DPR Engineer for the purpose of providing easy access to Myrtle Edwards Park and other adjacent properties for maintenance purposes and for any inspection or testing that may be required. Further, SAM shall provide Master Keys to Seattle Police and Fire Departments to allow emergency access during hours that the OSP may be closed to public access.

28. HAZARDOUS MATERIALS STORAGE AND USE

SAM shall not store any hazardous materials such as, but not limited to, pesticides, herbicides, paints, thinners, rodenticides, gasoline or other fuels on, or in, any area accessible to the public. No hazardous materials shall be stored on the Alaskan Way portion of the OSP. Any and all uses of hazardous materials within the Boulevard shall be consistent with Seattle Parks and Recreation Department's Best Management Practices.

29. EMERGENCIES

SAM shall respond to emergencies by contacting the appropriate emergency service providers such as Police, Fire, etc. The City shall provide SAM with appropriate contact names and telephone numbers for response to emergencies involving damage to City property, reports of incidents of criminal activity or other emergencies occurring during normal working hours. Incidents occurring after normal working hours (5:00 p.m. through 8:00 a.m.) affecting City property, except the Skybridges, should be reported to the DPR Duty Officer at (206) 915-6249 or (206) 982-4583. Incidents related to the Skybridges should be reported to Seattle Department of Transportation at 684-0391 between the hours of 8:30 a.m. and 4:30 p.m., and to 684-ROAD (7623) after hours, weekends and holidays. Incidents involving hazardous materials or other environmental conditions posing a threat to human life or health should immediately be reported by telephone to the 911 dispatcher.

30. STANDARDS, SPECIFICATIONS AND PLANS

All construction related activities undertaken pursuant to this Agreement will be consistent with the approved 100% Construction Drawings.

31. PUBLIC INVOLVEMENT

During construction, SAM shall provide effective and ongoing public notice of events related to the construction project contemplated in this Agreement.

32. UTILITIES

The Boulevard and Myrtle Edwards Park are underlain or otherwise burdened with various public utilities including but not limited to electric utility lines, gas lines, storm drainage, combined sewer outflows, sewers and possibly others. SAM, its contractors and sub-contractors shall be solely responsible for the protection of underground utilities from damage caused by SAM's construction activities and shall comply with all applicable laws and rules relating to the protection of underground utilities, including without limitation RCW 19.122.010, et. seq. SAM agrees to have its contractors and subcontractors take such steps as are necessary to protect the public's safety and use of the utilities during and after the time of construction. In the event that any underground utilities are damaged by SAM's construction activities, SAM shall be responsible for the cost of any repair. To the extent that utilities are required to be relocated to accommodate the construction project contemplated in this Agreement, SAM shall bear full responsibility for all expenses and liabilities related to said relocations. Further, SAM shall require its contractors, subcontractors, employees and others engaged in excavation at the site to call "dial a dig" (1800-424-5555) at least 24 hours prior to any required excavation. Provided, however, that reliance on a locate service shall not relieve SAM and its contractors and subcontractors of liability for any damage caused to any such utilities.

33. INSPECTION

A. City will undertake such quality assurance inspections as it deems necessary to confirm compliance with this agreement.

B. SAM will be responsible for assuring free and regular access to all City inspectors responsible for assuring the quality of all improvements and compliance with all applicable regulations, codes, ordinances or other effective instruments of law. SAM will assure that the Plans and Specifications attached hereto as Exhibit C are implemented and inspected consistent with City Inspection. Further SAM will be responsible for any and all materials-testing and laboratory work necessary to ensure the quality and safety of the improvements as installed and all such testing and analysis shall be carried out consistent with applicable City standards for such testing and analysis.

34. PLANT SELECTION, INSTALLATION, AND ESTABLISHMENT

Notwithstanding the Plans and Specifications attached as Exhibit C, SAM shall also ensure that the installation of all landscaping within the Boulevard will be accomplished consistent with the following: All plants will be selected from healthy stock, free of diseases and defects; all plants will be appropriately sized at planting to realize maximum coverage and proper plant health in the minimum amount of time reasonable for the species; soil will be appropriate to the species selected and amended accordingly; and irrigation will be adequate and appropriate to the species and planting objectives defined in the landscaping plans. Any and all contracts entered into by SAM for planting within Alaskan Way shall include a three (3) year plant establishment warranty. SAM's plant maintenance obligations after acceptance of the Connection Work by the City are set forth in the Operations and Maintenance Agreement.

35. AUDIT

Upon request, SAM shall permit the City, and any other governmental agency involved in the funding of the project ("Agency"), to inspect and audit all pertinent books and records of SAM, any SAM contractor, or any other person or entity that performed work in connection with or related to the OSP, at any and all times deemed necessary by the City or Agency, including up to six years after the final payment or release of withheld amounts has been made under this Agreement. Such inspection and audit shall occur in King County, Washington or other such reasonable location as the City or Agency selects. SAM shall supply the City with, or shall permit the City and/or Agency to make, a copy of any books and records and any portion thereof. SAM shall ensure that such inspection, audit and copying right of the City and Agency is a condition of any subcontract, agreement or other arrangement under which any other person or entity is permitted to perform work under this Agreement.

36. PROJECT COMPLETION

Upon completion of construction of the Boulevard and the Alaskan Way Skybridge, SAM will notify the City's project manager at DPR in writing, and DPR shall make its final inspection. If there are deficiencies in either the work or other performance required of SAM under this Agreement, DPR shall prepare and deliver to SAM, "punch lists" defining such items as it may deem incomplete or unsatisfactory, whereupon SAM shall undertake to remedy all noted deficiencies, whereupon it shall re-notify DPR that the work is completed. At such time as all of the Connection Work and other performance required of SAM under this Agreement is determined by DPR to be completed, the City shall prepare and deliver a written notice of completion to SAM.

37. MISCELLANEOUS PROVISIONS

A. Amendments: No modification of this Agreement shall be effective unless in writing and signed by an authorized representative of each of the parties hereto.

B. Binding Agreement: This Agreement shall not be binding until signed by both parties. The provisions, covenants and conditions in this Agreement shall bind the parties, their legal heirs, representatives, successors, and assigns.

C. Applicable Law/Venue: This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington. The venue of any action brought hereunder shall be in the Superior Court for King County.

D. Remedies Cumulative: Rights under this Agreement are cumulative and nonexclusive of any other remedy at law or in equity.

E. Captions: The titles of sections or other divisions of this Agreement are for convenience only and do not define or limit the contents.

F. Severability: If any term or provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

G. Waiver: No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Neither the acceptance by the City of any performance by the Consultant after the time the same shall have become due nor payment to the Consultant for any portion of the Connection Work shall constitute a waiver by the City of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by the City, in writing.

H. Entire Agreement: This document, along with any exhibits and attachments, constitutes the entire agreement between the parties with respect to the financing and construction of the OSP Park improvements; separate agreements have been prepared related to Skybridges, and Maintenance and Operations. No verbal agreement or conversation between any officer, agent, associate or employee of the City and any officer, agency, employee or associate of the Consultant prior to the execution of this Agreement shall affect or modify any of the terms or obligations contained in this Agreement.

I. Negotiated Agreement: The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.

J. Time of Essence; Force Majeure: Time is of the essence of this Agreement. Any delay, stoppage, or prevention of a party's performance ("Delay") under this Agreement due to Force Majeure shall excuse the performance of the party affected for a period of time equal to the Delay. However, the parties shall take reasonable steps to minimize the length of Delay. "Force Majeure" shall mean a Delay attributable to any strike or other labor or industrial disturbance, civil disturbance, inability to secure customers, materials, supplies, or labor through ordinary sources, any changes in applicable laws or the interpretation thereof, or any lightening, earthquake, fire, or other cause beyond the reasonable control of the party for whom performance is required or its contractors or representatives.

K. Third Party Beneficiaries: There are no third-party beneficiaries to this Agreement

IN WITNESS WHEREOF, in consideration of the terms, conditions, and covenants contained herein, or attached and incorporated and made a part hereof, the parties have executed this Agreement by having their representative's affix their signatures below.

Dated: ________________________, 2005

CITY: THE CITY OF SEATTLE By: _______________________ Name: Greg Nickels Title: Mayor, signing by authority of Ordinance No. ____________ Date: _____________________

SAM: SEATTLE ART MUSEUM, A Washington nonprofit corporation By: _____________________________ Name: ___________________________ Title: Chairperson of Board of Trustees Date: _________________________

CONSENT BY MUSEUM DEVELOPMENT AUTHORITY

The MDA is signing this Consent as the fee title owner of the MDA Property (Parcel D) and as lessee of that certain lease for the SAM Property (Parcels A and B), as described in Recital J, for the sole purpose of consenting to the terms and conditions of this Agreement between the City and SAM. In addition to SAM's rights under the ground lease for the MDA Property, the MDA hereby consents to SAM's entry upon, construction of and operation of the improvements upon the MDA Property and the SAM Property. The MDA hereby consents to SAM's acting on its behalf in all matters related to the execution and implementation of the terms of this Agreement. The MDA shall have no liability or obligations under this Agreement to SAM or to the City, except for MDA's agreement to execute the Grant of Access.

MUSEUM DEVELOPMENT AUTHORITY OF SEATTLE, a public corporation chartered by the City of Seattle

By:_______________________ Print Name:____________ Print Title:___________

October 31, 2005 ta

ATTACHMENT B:

OPERATION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF SEATTLE SEATTLE ART MUSEUM AND MUSEUM DEVELOPMENT AUTHORITY

This Agreement is entered into between The CITY OF SEATTLE, a Washington municipality ("City"), and the SEATTLE ART MUSEUM, a Washington nonprofit corporation ("SAM"), and is consented to by the MUSEUM DEVELOPMENT AUTHORITY OF SEATTLE, a public corporation chartered by the City of Seattle ("MDA"), regarding the operation and maintenance of both the Alaskan Way Boulevard lying adjacent to the City's Myrtle Edwards Park and SAM's planned Olympic Sculpture Park.

RECITALS

A. The City approved a tax levy known as The 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy as proposed by Ordinance 120024 and approved by Seattle voters on November 7, 2000. One of the provisions of the 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy was funding for a waterfront connection from Myrtle Edwards Park to the Belltown Area. The design of the Olympic Sculpture Park together with the Grant of Access realizes that objective by incorporating a public connection from Belltown to Elliott Bay via pedestrian pathways (at grade and above grade) and skybridges over public rights of way.

B. On October 24, 2005, the City of Seattle enacted Ordinance 115429, which granted a Skybridge Permit ("Permit") to SAM to construct and maintain for a period of twenty-five (25) years, and renewable for an additional twenty-five (25) years upon the conditions specified in the aforesaid Permit, two skybridges; one across Elliott Avenue and one across Alaskan Way. As a condition of that Permit, SAM must execute and deliver to the City a Grant of Access, which grants certain rights of public access over and upon the skybridges and pathways within a Public Access Area as defined in the Grant of Access; and

C. This agreement is intended to govern the operation and maintenance of City-owned property adjacent to and within the Olympic Sculpture Park which is described in that agreement entitled "Design Agreement" executed by the City and SAM in accordance with Ordinance No. 119982 approved June 12, 2000.

D. The City adopted Ordinance No. 121721 on February 2, 2005, designating Alaskan Way to be Alaskan Way Boulevard (a park boulevard) north of Broad Street and south of the northern edge of Bay Street and transferring jurisdiction for the designated area from Seattle Department of Transportation to the Department of Parks and Recreation (DPR) providing for transportation, trail and utility purposes to continue.

E. The above-described Alaskan Way Boulevard shall hereafter be referred to as "the Boulevard."

F. The Boulevard is supported by a seawall which is a significant structural element supporting lands to its east.

G. The City and SAM have acknowledged the public benefits from a consistent design philosophy being applied to the Olympic Sculpture Park and the portion of the Boulevard. The improvements to the Boulevard and the proposed elevated pedestrian walkway are the subject of separate Construction and Finance Agreement and Skybridge Permits, respectively, all as approved by the City Council.

H. Although most of the Olympic Sculpture Park will be privately owned and operated by SAM, it will generally be open daily to the public free of charge, except on the 5 calendar days per year on which SAM shall be entitled to close the SAM owned portions of the OSP for private events. The use of the OSP shall be subject to rules of conduct as set forth below. The Alaskan Way Skybridge and Boulevard will have the appearance of being incorporated into the OSP. While SAM shall set the hours for the OSP as provided below, the Boulevard will be open to the public at the same times as the adjacent Myrtle Edwards Park.

I. As a condition to the City passing the Skybridge Ordinance 115429, entering into the Construction and Finance Agreement and this Operation and Maintenance Agreement, SAM will grant certain public access to the City of Seattle as provided in the Skybridge Ordinance Grant of Public Access.

J. In addition to the pathways and skybridges described above, and as depicted in the 100% Construction Drawings for the OSP, SAM will also construct a salmon habitat restoration project at the juncture of the shoreline between the Olympic Sculpture Park and Myrtle Edwards Park by installation of a natural beach.

K. As depicted in the 100% Construction Drawings for the OSP, SAM will also construct buttressing for the seawall and salmon restoration adjoining the Boulevard at the time of development of the OSP (Seawall Buttressing). The parties wish to provide for the maintenance and operation of the OSP, the Boulevard, the Seawall Buttress and Embayment and Alaskan Way Skybridge in this agreement.

L. SAM has committed to contributing $2 million towards public improvements within the Olympic Sculpture Park as depicted in the 100% Construction Drawings for the OSP.

M. The Museum Development Authority of Seattle, a public corporation chartered by the City of Seattle ("MDA"), is owner of the real property legally described on Exhibit 3, attached to the Grant of Access and incorporated herein ("Parcel D" or "MDA Property"). For general reference only, that parcel is indicated with the letter D on Exhibit 2 to the Grant of Access. MDA acquired the MDA Property from the City subject to use and development restrictions, including the requirement that the MDA Property be used and developed only as a sculpture garden, park or other open space as part of the SAM Olympic Sculpture Park ("OSP"), with public access free of charge in perpetuity. MDA also is lessee of the SAM Property under a lease from SAM for the purpose of conducting certain environmental work, subject to a sublease and operating agreement back to SAM. SAM is developing the OSP on the SAM Property and, pursuant to a ground lease from MDA, the MDA Property.

NOW, THEREFORE, in consideration of the Recitals and the mutual promises and provisions hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

1. IDENTIFICATION OF PARTIES AND PROPERTY AFFECTED BY THIS AGREEMENT

A. Property. This Agreement pertains to the Olympic Sculpture Park (OSP), the Boulevard as described in Ordinance No. 121721 and portions of Myrtle Edwards Park, all more specifically described in Exhibit A attached hereto and as shown on the Map designated as Exhibit B, also attached.

B. Parties. The parties to this Agreement are the City of Seattle, the Seattle Art Museum, which is developing the Olympic Sculpture Park. The MDA is signing the Consent attached hereto.

2. EXHIBITS TO AGREEMENT

Exhibits attached to and made a part of this Agreement include: A. Exhibit A Property description and survey B. Exhibit B Site Map C. Exhibit C Plans and Specifications for construction within Alaskan Way and Myrtle Edwards Park as submitted and permitted for construction by Seattle Department of Planning and Development. D. Exhibit D Embayment Plan/ Seawall Buttressing Plan E. Exhibit E Ordinance No. 121721, passed January 24, 2005 F. Exhibit F Skybridge Ordinance No. 115429 passed October 24, 2005 G. Exhibit G Grant of Access (Attachment A to Ord 115429) with attachments H. Exhibit H Construction and Finance Agreement

3. TERM.

The initial term of this Agreement shall be twenty-five (25) years from the date of execution, unless otherwise modified in writing upon mutual agreement of the parties. At the end of the initial term, SAM may elect to extend this Agreement for an is for a term of twenty-five (25) years, commencing when construction to the OSP shall have been completed, the Grant of Access shall have been delivered by SAM to the City, and the OSP shall ready to open to the public, and terminating at 11:59 p.m. on the last day of the twentyfifth year thereafter; provided, however, that upon written application of SAM at least thirty (30) days before the expiration of the term, the Superintendent may renew the Permit for one additional twenty-five (25) year term, for a total term of fifty (50) years, , and provided SAM is not then in default. Provided, however, that this Agreement shall not be renewed or extended if the Skybridge Permit granted under City of Seattle Ordinance 115429, is not renewed or is terminated.

4. DEFINITIONS

A. "City" means The City of Seattle.

B. "SAM" means Seattle Art Museum.

C. "OSP" means the Olympic Sculpture Park, both SAM-owned parcels,

SAM-leased parcels and Alaskan Way Boulevard.

D. "DPR" means Seattle Department of Parks and Recreation.

E. "SDOT" means Seattle Department of Transportation.

F. "Skybridges" means the two elevated pedestrian and non-motorized vehicle walkways in the Olympic Sculpture Park, one over Elliott Avenue, connecting SAM-owned land parcels and one over the Burlington Northern Santa Fe Railroad franchise area, connecting the SAM-owned parcel to the Boulevard.

G. "Elliott Avenue Skybridge" means the elevated pedestrian walkway above Elliott Avenue.

H. "Alaskan Way Skybridge" means the elevated pedestrian walkway above the Burlington Northern Santa Fe Railway franchise area and the Boulevard. The Alaskan Way Skybridge includes the ramp, stairs and abutment where it connects with the Boulevard.

I. "BNSF" means the Burlington Northern Santa Fe Railway franchise area in Alaskan Way.

J. "ProParks Levy" means The 2000 Neighborhood Parks, Green Spaces, Trails, and Zoo Levy.

K. "Embayment" means the natural beach, installed by SAM, at the juncture of the shoreline between the Olympic Sculpture Park and Myrtle Edwards Park.

L. "The Boulevard" means that portion of Alaskan Way north of Broad Street and south of the northern edge of Bay Street designated as a park Boulevard by Ordinance No. 121721 (or, west of the BNSF franchise area). The term "the Boulevard" excludes the ramp, stairs, abutment and any other component that are part of the Alaskan Way Skybridge, as defined above.

M. "Seawall Buttress" means buttressing for the seawall adjoining that portion of Alaskan Way north of Broad Street and south of the northern edge of Bay Street.

N. "Grant of Access" means the at and above grade pedestrian and wheelchair accessible access area as provided in the Grant of Access.

O. "Permit" means the Skybridge Permit granted under Seattle City Ordinance 115429.

5. PARK OPERATIONS

A. Overall Operation and Programs: SAM will operate the OSP consistent with park and open space purposes in a clean, safe and inviting condition for the public. SAM will curate and manage artistic programs throughout the OSP, subject to part (D) below. SAM recognizes that the Boulevard will retain its status as a public park and will manage it in a way that is consistent with that status.

B. Hours of Operation and Public Access: The Boulevard will be open at the same times as Myrtle Edwards Park, subject to temporary closure for repairs or maintenance, security or other similar circumstances. The City will coordinate with SAM regarding vehicular access or other special access across the Boulevard by the City, vendors or other persons involved in conducting Special Events (as defined in subsection (H) below). The Boulevard shall not be closed for private or public events, but access over the Boulevard may be modified during Special Events by mutual written agreement of the DPR and SAM.

1). Except for the five (5) calendar days per year on which SAM may close the SAM owned portions of the OSP, as provided below, the OSP (including the Skybridges) shall be open daily to the public and shall at all such times be free of charge. SAM (a) will determine the hours of operation, and as provided in the Grant of Access, the Public Access Area shall be open at least during the period beginning at 9:00 AM and ending at 5:00 PM local time seven days a week and during all additional hours as the OSP is open to the public, but at all times subject to compliance with the rules of conduct.

2) SAM may limit access to SAM owned portions of the OSP and Skybridges for SAM events up to a maximum of five (5) days per year, (provided that the same shall be on an approved schedule as provided in Section 5(F) below), each event to be no longer than one day in duration. On the five days, SAM shall close the Alaskan Way Skybridge at the point where it touches down on the Boulevard and shall erect appropriate signage indicating that the Skybridge and OSP is closed to the public and directing the public toward other exits from the Boulevard. On the five days, SAM may charge an admission fee for entrance.

3). Public access throughout the OSP will be from marked entrances along street frontages. Walls and/or security fencing will separate the Boulevard from the railroad tracks.

4). The City, King County and other governmental agencies will have 24-hour emergency access, as well as access for maintenance vehicles, to Myrtle Edwards Park across the Boulevard. The Boulevard will be available for pedestrian , bicycle and wheelchair use, viewing, seating, and for all other purposes accommodated in a public boulevard.

B. Rules and Hours of Operation: SAM shall adopt, subject to review by DPR, reasonable rules and regulations governing conduct within the Boulevard. The rules governing public conduct on the Boulevard shall be the same as those applicable to any other City park as defined within Chapter 18.12, The Park Code, Seattle Municipal Code. SAM shall have the right to enforce rules and regulations for the OSP, including SAM's right but not obligation to enforce rules and regulations on the Boulevard, in addition to the City's enforcement.

C. Art Curation: SAM shall exclusively control and decide the content, selection, display, timing, arrangement, and all other aspects of all artwork and sculptures within the entire OSP. The location of art work in the Park Boulevard must provide for access for maintenance and utility vehicles. Should any inquiries, disputes or complaints arise regarding: a) the content; b)selection; c) display; d) timing; e) arrangement; and f) all other aspects of all artwork and sculptures, including educational, temporary and performance-based work (collectively referred to as "SAM's art curation", it shall be the sole responsibility of SAM to respond and redress and SAM shall defend, indemnify, save and hold harmless, the City and its officials and employees from any claim for monetary damage or other relief that shall arise from or be related to SAM's art curation.

D. VARA and Placement of Artwork Upon and Within the Boulevard:

1.) or any work contracted for by SAM after the date of this Agreement that will be located within the Boulevard or upon the Elliott Avenue Skybridge or Alaskan Way Skybridge, SAM shall not contract for, nor shall it place or permit the placement of any artwork including any works of visual art including any painting, mural, drawing, print, sculpture, mosaic or still photograph, as the same are defined in the Visual Artists Rights Act (VARA) 17 U.S.C. section 101, as now enacted or hereafter modified, without first having either (i) determined that VARA will allow removal or relocation of the artwork or (ii) obtained from the artist a written waiver and agreement in a form approved by the City, waiving any right to the permanent emplacement of said artwork upon or within the Boulevard or the Elliott Avenue Skybridge or the Alaskan Way Skybridge, and which grants to SAM and to the City the right of removal or relocation of said work.

2). The existing agreements for the creation and placement of the fountain entitled, Father and Son, by artist Louise Bourgeois, at the entry plaza with the Boulevard, allow SAM to relocate the work, subject to consultation with the artist and concurrence with the oversight committee. For any other work acquired or contracted for by SAM before the date of this Agreement, SAM will not place any work covered by VARA on the Boulevard, the Elliott Avenue Skybridge, the Alaskan Way Skybridge, the Embayment, or Seawall Buttress that cannot be removed or relocated pursuant to VARA or pursuant to the terms of any agreement or waiver with the artist.

3). SAM will indemnify, defend and hold harmless the City from any claims, actions, suits, liability, loss, costs, expenses or damages of every kind and description arising under VARA for any work placed by or with the permission of SAM on the Boulevard, the Elliott Avenue Skybridge, the Alaskan Way Skybridge, the Embayment, or Seawall Buttress.

E. Fees and Concessions: SAM may charge admission fees for use of the pavilion building, garage or other structures such as temporary buildings, tents or others as may be erected from time to time (not including bridges) within the OSP, provided the same shall not encroach on the 11 foot pedestrian and wheelchair public access set forth in the Grant of Access; except that SAM shall not charge for admission to, or for use of, Park Boulevard. SAM shall have the exclusive right to operate and retain revenues from any concessions, gift shop, Special Events, services or group admissions within OSP, including Park Boulevard and the Skybridges.

F. Annual Report and Calendar: SAM shall produce and deliver an "Annual Report and Calendar" to DPR each calendar year no later than March 1. The Annual Report and Calendar shall include, but not be limited to, the following:

1). A statement attesting to the status of outstanding permits, operating agreements, warranties or other matters pertaining to improvements or activities occurring or having occurred during the prior 12 months for the Park Boulevard.

2). Descriptions of any and all proposed operational or maintenance changes proposed to be instituted within the forthcoming 12 months including but not limited to changes in hours, SAM private events not to exceed 5 calendar days per year, security arrangements, fees, new concessionaires or any other changes which may create or change obligations of the City or differ from the agreement herein.

G. Emergencies: SAM shall respond to incidents involving injury to

any person or damage to the subject property by contacting the appropriate emergency service providers such as Police, Fire, etc. as necessary. The City shall provide SAM appropriate contact names and telephone numbers for response to emergencies involving damage to City property, reports of incidents of criminal activity or other emergencies. In addition to reporting to emergency services, SAM shall also report all such incidents to DPR within 24 hours of the occurrence. Incidents involving hazardous materials or other environmental conditions posing a threat to human life or health should be immediately reported by telephone to the 911 dispatcher.

H. Special Events: "Special Events" shall include the Fourth of July celebration, Hemp Fest, and any other festivals, holidays or events sponsored or permitted by the City for Myrtle Edwards Park. The City will require event sponsors utilizing Myrtle Edwards Park, to adequately protect sensitive vegetation, artwork and other improvements in the Boulevard, Skybridges and Embayment Areas. Furthermore, the City will require a trash and debris removal plan. Additionally, SAM may undertake special security precautions for artwork, landscaping or other improvements in the Boulevard and the Skybridges during Special Events such as but not limited to temporary fencing.

6. MAINTENANCE:

SAM and the City shall have the following maintenance responsibilities, respectively. These responsibilities cover the Boulevard, the Embayment, and the Seawall Buttressing (maintenance and repair of the sky bridges is covered in the Skybridge Permit, and this Agreement does not cover the OSP portions owned by SAM).

A. Custodial Responsibilities: SAM shall perform all grounds custodial work throughout the Boulevard, including but not limited to litter pick up, garbage collection and disposal, cleaning of hard surfaces, sweeping of trails, keeping drainage structures clean and free of debris and disposing of materials collected in such activities; and performing all trail and sidewalk maintenance.

B. Turf Maintenance: SAM shall maintain all turf within the Boulevard including but not limited to grass mowing, lawn irrigating, trimming, edging, and fertilizing and all other turf cultural practices.

C. Planting Bed and Tree Maintenance: SAM shall maintain all planting beds and trees within the Boulevard including but not limited to weeding, pruning, fertilizing and irrigating to at least a standard consistent with the DPR publication "Landscape, Horticulture and Urban Forestry Best Management Practices" published in September 2004 and periodically revised and updated.

D. Utility Services: SAM shall be responsible for all utility services and utility costs associated with maintaining the Boulevard, including but not limited to, electricity, gas, water, sewage, waste water and such other utilities as may be necessary. The City and SAM shall install, at SAM's expense, separate meters or methods to identify those utility costs to be paid by SAM. SAM shall be responsible for notifying affected utility providers of their (SAM's) responsibility for all utility accounts affecting the site. The City shall have no responsibility for utilities to serve any portion of OSP.

E. Irrigation: SAM shall perform all normal maintenance of the irrigation system within the Boulevard, such as winter shut down, replacement of heads and risers and all other general maintenance and repairs necessary to keep the system operationally functional and in good order. SAM shall also be responsible within the Boulevard for the maintenance of the irrigation controls, training of staff regarding use and repair of irrigation equipment, and operating any and all computer systems (including telephone lines if any) controlling the irrigation systems. Any and all changes to computer software programs controlling the irrigation system shall be reviewed and approved by the DPR prior to installation. Such approval shall be reasonably granted and approved in writing.

F. Graffiti Removal: SAM shall be responsible for all graffiti removal within the Boulevard. All graffiti shall be removed within 24 hours to the extent reasonably possible.

G. Trail and Pathway Maintenance: SAM shall be responsible for all regular trail and pathway maintenance within the Boulevard, including but not limited to, patches, repairs and seal coats or overlays. The timing and necessity of repaving or other structural repairs to differential settlement, cracks, potholes and dips in trails or pathways greater than .5 inches in thickness and greater than 1

square foot, will be jointly determined by SAM and DPR and will be scheduled to limit disruptions to public use within the Boulevard.

H. Accessibility: To the extent applicable, SAM will comply with the Americans with Disabilities Act.

I. Signs: SAM shall be responsible for maintenance and replacement of all signs within the Boulevard including, but not limited to, direction signs, regulation notices, descriptive signs associated with art work and any and all other signs that are necessary for the orderly operation of the site. Trail and pathway signs throughout the Boulevard will be consistent in design, size and appearance with trail and pathway signs within OSP. SAM will replace the sign at the entrance to Myrtle Edwards Park.

J. Hazardous Material Storage and Use: SAM shall not store any hazardous materials such as, but not limited to, pesticides, herbicides, paints, thinners, rodenticides, gasoline or other fuels, on or in any area accessible to the public. No hazardous materials shall be stored on the Boulevard. Any and all uses of hazardous materials within the Boulevard shall be consistent with DPR's Best Management Practices.

K. Water Bills: SAM shall be responsible for all water bills incurred within the Boulevard. In the event that the water source for this area is within Myrtle Edwards Park, SAM shall be responsible for installing sub-meters to measure the usage for Alaskan Way. Upon receipt of any invoices for said sub-meters, City shall promptly forward them and SAM shall promptly pay them. City shall be responsible for all water bills incurred for Myrtle Edwards Park including the Embayment area.

7. CONTRACT MAINTENANCE

All construction or repair work, including maintenance performed under contract within the Boulevard shall be conducted as a "public work" as defined in RCW 39.04 and SAM shall adhere to all applicable State and City of Seattle Public Works laws including those imposed under RCW 39.12.020, except to the extent any work may be exempted by law. The City will consult with SAM on the appropriate means by which to procure and contract for such work and SAM shall not advertise for or undertake any such public work without City approval. All work completed pursuant to this section shall be inspected and approved by DPR prior to being deemed complete.

8. MANAGEMENT PLAN

Upon the opening of the Boulevard as part of OSP, SAM shall produce and deliver to the City four copies of a written Management Plan outlining the proposed maintenance activities including custodial activity and proposed replacements of turf, pavement, signage or other facility components. The Management Plan shall be updated by SAM when in the opinion of the City it is reasonably necessary to do so. SAM will submit to the City any proposed significant changes to its Management Plan. The City shall review the Management Plan or any revised Management Plan, thirty (30) days of receipt and request revisions or acknowledge acceptance. If the City does not submit comments within that thirty (30) day period, it shall be deemed to have accepted the plan.

9. SEAWALL BUTTRESS

The City shall maintain the Seawall Buttress constructed by SAM as agreed to in the separate OSP Construction and Finance Agreement. The City shall undertake annual inspections of the Seawall Buttress and such additional inspections as conditions may warrant. A copy of any reports of said inspections shall be submitted to SAM for review and comment and the City and SAM may discuss any planned repairs. For a period of three (3) years after installation, SAM shall guarantee installation on the Seawall Buttress, with a warranty on all materials, save for a catastrophic collapse due to an act of god.

10. SHORELINE EMBAYMENT

A. During the plant establishment period, but no longer than three (3) years after plant installation, SAM shall be responsible for routine maintenance of the upland vegetation and intertidal plantings related to Embayment located in Myrtle Edwards Park, and thereafter the City shall maintain and replace such plantings. All other maintenance within the confines of Myrtle Edwards Park shall be the responsibility of the City including but not limited to "beach replenishment" as needed.

B. The parties acknowledge that the particular plant locations, types and sizes were designed and selected, and funded by several agencies, to foster salmon enhancement. Consequently, SAM (during plant establishment) and the City (after plant establishment) shall maintain and replace any dead or diseased plants with the same type and size and in the same location, unless mutually approved by SAM and DPR.

11. LOCKS, CITY MAINTENANCE ACCESS, AND EMERGENCY ACCESS

SAM shall provide keys to gates and other barriers that may be installed throughout the Boulevard to the Parks Engineer for the purpose of providing easy access to Myrtle Edwards Park and other adjacent properties for maintenance purposes. Further, SAM shall provide Master Keys to Seattle Police and Fire Departments to allow emergency access during hours that the OSP may be closed to public access.

12. EQUAL OPPORTUNITY AND OUTREACH

A. SAM shall not discriminate against any employee or applicant for employment because of race, religion, creed, age, color, sex, marital status, sexual orientation, gender identity, political ideology, ancestry, national origin, or the presence of any sensory, mental or physical handicap unless based upon a bona fide occupational qualification. SAM shall take affirmative action to ensure that applicants are employed, and the employees are treated during employment, without regard to their creed, religion, race, age, color, sex, national origin, marital status, political ideology, ancestry, sexual orientation, gender identity, or the presence of any sensory, mental or physical handicap. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation and selection for training, including apprenticeship. SAM shall post in conspicuous places, available to employees and applicants for employment, notices as provided by the City of Seattle setting forth the provisions of this nondiscrimination clause.

B. SAM shall encourage the use of women and minority employees and apprentices on this project and encourage outreach efforts in employment opportunities. Outreach efforts may include use of targeted solicitation lists, advertisements in publications directed to underrepresented communities, providing student internships or apprentice opportunities, noting SAM's Equal Employment Opportunity (EEO) policy in solicitations, emphasizing EEO and outreach policies within SAM and using the services of available minority community and public organizations to perform outreach.

13. NONDISCRIMINATION IN EMPLOYEE BENEFITS

A. Compliance With SMC Ch. 20.45: To the extent SMC Ch. 20.45 is applicable to this Agreement; SAM shall have the following obligations. SAM, as it pertains only to any activity governed by this Agreement, shall comply with the requirements of SMC Ch. 20.45 and Equal Benefits Program Rules implementing such requirements, under which SAM is obligated to provide the same or equivalent benefits ("equal benefits") to its employees that are directly involved in the activity governed by this Agreement with domestic partners as SAM provides to its employees with spouses. At the City's request, SAM shall provide complete information and verification of SAM's compliance with SMC Ch. 20.45. (For further information about SMC Ch. 20.45 and the Equal Benefits Program Rules call (206) 684-0430 or review information at http://cityofseattle.net/contract/equalbenefits/.)

B. Remedies for Violations of SMC Ch. 20.45: If and to the extent SMC Ch. 20.45 is applicable to this Agreement, then any violation of this Section 13 shall be a material breach of this Agreement for which the City, after delivering a written notice and expiration of the time for under Section 19 (Default) below, may:

1). Require SAM to pay actual damages for each day that SAM is in violation of SMC Ch. 20.45 during the term of the Agreement; or

2). Terminate the Agreement; or

3). Impose such other remedies as specifically provided for in SMC Ch. 20.45 and the Equal Benefits Program Rules promulgated thereunder.

14. EQUALITY IN CONTRACTING

SAM shall comply with the requirements of the City's "Equality in Contracting Ordinance" (SMC 20.42.010 et seq). In addition to the other requirements of that act, prior to advertising to bid any portion of the Work, SAM and the Director of DPR shall adopt a plan, developed in consultation with the Director, to afford Women and Minority Businesses the maximum practicable opportunity to directly and meaningfully participate on City Contracts. The plan shall include specific measures the Contract awarding authority will undertake to increase the participation of Women and Minority Businesses. Each Contract awarding authority shall make efforts to comply with any goals established in the plan for that Contract awarding authority under these provisions for public works, consultant services and procuring goods or services. The Contract awarding authority may also establish aspirational goals for the participation of Women and Minority Businesses in a particular City Contract on a case-by-case basis.

15. OTHER LEGAL REQUIREMENTS

A. General Requirement: SAM at no expense to the City shall comply with all applicable laws of the United States and the State of Washington, the Charter and ordinances of City; and rules, regulations, orders, and directives of their administrative agencies and the officers thereof. Without limiting the generality of this paragraph, SAM shall specifically comply with the following requirements of this section.

B. Licenses and Similar Authorizations: SAM at no expense to the City, shall secure and maintain in full force and effect during the term of this Agreement all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof.

C. Use of Recycled Content Paper: SAM shall use, whenever commercially reasonable and practicable, recycled content paper on all documents submitted to City, in accordance with SMC 20.60.218.

D. Americans With Disabilities Act: SAM shall comply with all applicable provisions of the Americans with Disabilities Act of 1990 (ADA) in performing its obligations under this Agreement. Failure to comply with the provisions of the ADA shall be default subject to the notice and cure provisions of Section 18 below. TX: E. Fair Contracting Practices Ordinance: SAM shall comply with the Fair Contracting Practices Ordinance of the City of Seattle (Ordinance 119601), as amended. Conduct made unlawful by that ordinance constitutes a breach of contract after notice and expiration of the cure period in Section 18. Engaging in an unfair contracting practice may also result in the imposition of a civil fine or forfeiture under the Seattle Criminal Code as well as various civil remedies.

16. INDEMNIFICATION

A. SAM, by entering into this Agreement, hereby releases the City from any and all claims resulting from damage or loss to its own property and does covenant and agree for itself, its successors and assigns, The City of Seattle, to at all times indemnify, defend and save harmless The City of Seattle from all claims, actions, suits, liability, loss, costs, expenses or damages of every kind and description (excepting only such damages that may result from the sole negligence of the City), which may accrue to, or be suffered by, any person or persons and/or property or properties, including without limitation, damage or injury to SAM, its officers, agents, employees, contractors, invitees, tenants and tenants' invitees, licensees or its successors and assigns, by reason of the maintenance operation or use of improvements or any portion thereof made pursuant to this or any other agreement between the parties hereto regarding the OSP.

B. In any action against the City of Seattle, by any employee of SAM, its contractor, subcontractors, sub-subcontractors, agents, or anyone directly or indirectly employed by any of them, the indemnification obligation of this Section shall not be limited by a limit on the amount or type of damages, compensation, or benefits payable by or for SAM, its contractor or any subcontractor under RCW Title 51, the Industrial Insurance Act, or any other employee benefit acts. Likewise, any City indemnification in the event of concurrent negligence shall not be limited by RCW Title 51. In addition, SAM and the City each waives immunity as to the City of Seattle only or SAM only, as applicable, in accordance with RCW Title 51 and shall require that in any construction contract, that it shall require its contractor to waive such immunity.

C. If it is determined by a court of competent jurisdiction, that RCW 4.24.115 applies to this ordinance or that other concurrent negligence has occurred, then in the event claims or damages are caused by or result from the concurrent negligence of:

1). The City, its agents, contractors or employees; or

2). SAM, its agents, contractors, or employees.

Then each party shall indemnify the other to extent of that party's negligence.

17. INSURANCE

A. Coverage's and Limits of Liability:

1). SAM Liability Insurance. SAM, at no expense to the City, shall maintain continuously throughout the Term of this Agreement Commercial General Liability (CGL) and Automobile Liability insurance with a limit of liability of not less than $10,000,000 each occurrence combined single limit bodily injury and property damage for claims occurring on, in or about the OSP property.

2). SAM Property Insurance. SAM shall maintain all risks property insurance on the improvements within the Boulevard with a limit of liability of not less than the replacement cost of the property. SAM shall cause its property insurer(s) to provide an insurer's waiver of subrogation in favor of the City.

3). Contractor Insurance.

a). During the course of any construction, SAM shall cause all contractors to maintain CGL and Automobile Liability and Umbrella/Excess insurance as required with a limit of liability of not less than $5,000,000 each occurrence combined single limit bodily injury and property damage for claims occurring on, in, or about the OSP property. CGL insurance shall include Premises/Operations, Products/Completed Operations, Contractual Liability, Independent Contractors and Stop Gap/Employers Liability. SAM shall, in addition, incorporate subparagraph B. herein ("Terms and Conditions") in all contractor agreements.

b). During the course of construction, SAM shall cause all

contractors to maintain Worker's Compensation insurance in accordance with the provisions of Title 51 of the Revised Code of Washington (RCW) and contractors shall be responsible for ensuring that workers compensation insurance is in force for any subcontractor. Additionally, if the scope of work requires working in, on, or around a navigable waterway, the contractor and any subcontractor, if legally required to do so, shall maintain United States Longshore and Harbor Workers Act (USL&H) coverage and Jones Act in compliance with Federal Statutes. If the contractor is qualified as a self-insurer in accordance with chapter 51 RCW, it shall so certify to the City.

4) Terms and Conditions:

a). As respects SAM and contractor liability insurance, the City shall be an additional insured for primary and noncontributory limits of liability as documented by a copy of an additional insured endorsement or a copy of blanket additional insured policy wording.

b). Limits of liability referenced herein are minimum limits only and shall not be construed as limiting either the liability of SAM or any SAM contractor nor the liability of any insurer of SAM or any SAM contractor.

c). Insurers shall have a minimum AVII A.M. Best's rating unless procured under the provisions of chapter 48.15 RCW or otherwise approved by the City.

d). Insurers shall provide 45 day written notice of cancellation to the City in accordance with chapter 48.18.290 RCW, except 30 days for insurance policies procured under the provisions of chapter 48.15 RCW and 10 days for non-payment of premium.

e). Current certification of insurance, including a copy of an additional insured endorsement or a copy of blanket additional insured policy wording, shall be maintained on file with the City at the address specified in Section 5. ("Notices") of this Agreement.

5) Changes: Beginning on the fifth anniversary of this Agreement and annually thereafter, the City shall evaluate the appropriate coverages and limits of liability and may require a change in insurance coverages and limits. In the event of a dispute over such change, the parties shall utilize dispute resolution under Section 18c below.

18. DEFAULT, CURE, REMEDIES, DISPUTE RESOLUTION

A. Default and Cure. Upon being given written notice of failure to perform or comply with a term or condition of this Agreement, the notified party shall promptly undertake such reasonable steps as shall be necessary to cure the specified failure. If that party fails to promptly undertake reasonable steps to perform or comply, or fails to cure the specified failure within 60 days after written notice is given, that party shall be deemed to be in default of this Agreement. Provided, however, that in the event that the parties agree that cure cannot reasonably occur within such 60-day period, then the Parties shall agree upon a reasonable period of time for the defaulting party to affect a cure. If at the end of that additional period of time cure has not been made, that party shall be deemed in default of this Agreement. Failure to cure after the applicable time period shall be an "Event of Default." If the parties are participating in dispute resolution under Section 18(D), then the time period for cure shall not commence until completion of the dispute resolution.

B. Receiver: The appointment of a receiver to take possession of all or substantially all of the assets of SAM or other action taken or suffered by SAM under any bankruptcy, reorganization, or other statute of similar nature, if such receiver or action has not been released, discharged, dismissed, or vacated within 60 days, shall constitute a breach of this Agreement, and the breaching party shall be in default of this Agreement.

C. Remedies: If there is an uncured Event of Default of this Agreement, then the non-defaulting party shall have all rights and remedies at law or in equity. If the uncured Event of Default relates to a fundamental obligation under this Agreement, then the non-defaulting party shall have the right to terminate this Agreement. Any proposed termination due to an uncured Event of Default by SAM shall require compliance with Ordinance No. 118477 (Initiative 42). Upon any termination by the City for an uncured SAM Event of Default, the City in its discretion may retain the park improvements as constructed within the Boulevard and Alaskan Way Skybridge, but not any artwork, for the use of the public, or may require SAM to demolish said improvements and restore the site to its condition at the time of the execution of this Agreement. Sam shall remove all art works from public property within 60 days of the termination of the Agreement and shall indemnify the City against any and all losses related to such art works during the removal period and shall, in addition to the obligations arising under the indemnity provisions of this Agreement, indemnify, defend save and hold the City harmless from any claim, defense or other legal action arising under the Visual Artists Rights Act (VARA) 17 U.S.C. section 101, as now enacted or hereafter modified.

D. Dispute Resolution: In the event that any dispute or misunderstanding arising under this Agreement concerning SAM's or the City's performance cannot be resolved through amicable negotiations, between SAM's Project Manager and the City's Project Manager, the matter shall be referred to the Superintendent, Seattle Parks & Recreation Department and SAM's senior executive(s). If such officials do not agree upon a decision, the parties shall then submit the matter to a non-binding alternate dispute resolution process.

E. No Implied Waiver. No failure by either party to insist upon strict performance of any obligation of the other party or the failure to exercise any right or remedy arising out of a breach, irrespective of the length of time which such failure continues (except in cases where this agreement expressly limits the time for exercising the rights and remedies arising out of a breach), shall constitute a waiver of such breach or a waiver of that party's right to demand strict compliance of such term. No waiver of any default or the performance of any provision shall affect any other default or performance. A written waiver of default or the performance of a provision shall not be deemed to be a waiver of subsequent default or performance.

20. ASSIGNMENT; SUBCONTRACTING

Neither party shall assign, transfer, or encumber its interest in this Agreement without the prior written approval of the other party which approval shall not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, SAM shall have the right to enter into contracts or other arrangements with other persons or entities for operation and maintenance of OSP or to contract for any other service required or allowed to be performed by SAM under this agreement.

21. NOTICES

All notices required to be given under this Agreement shall be in writing and either delivered personally or sent by United States Certified Mail, postage prepaid, return receipt requested, to the appropriate addresses listed below or at such other address as shall be provided by written notice. Notice shall be deemed communicated to the parties 3 business days from the time of mailing if mailed as provided in this section. For convenience purposes only, and not to satisfy the requirement to give written notice, copies of notices also may be given by other means.

If to SAM: Seattle Art Museum P O BOX 22000 Seattle, WA 98122 Telephone: 206 654-3100 FAX: 206 654-3135 Attn: Director

If to City: City of Seattle Department of Parks and Recreation 100 Dexter Avenue N. Seattle, WA 98109 Attn: Superintendent of Parks and Recreation

22. ENVIRONMENTAL INDEMNITY

The parties acknowledge the existing Environment Agreement between the City and SAM dated December 7, 1999 ("Environmental Agreement"). No change of rights, obligations, or responsibilities under the existing Environmental Agreement shall occur as a result of this Agreement, except as expressly provided in this section. SAM shall be responsible for any and all costs that arise from or are related to soil removal, if required, and recapping of soil, if required, to the extent required to complete SAM's construction of the OSP. Such costs include, but are not limited to, disposal of contaminated soil or groundwater that is removed during construction replacement of material that is capping contaminated soil and is disturbed during construction mitigation measures required by permitting authorities, and worker safety measures required for construction on a contaminated site. The Consent Decree means the "Prospective Purchaser Consent Decree Re: The Former Unocal Seattle Marketing Terminal Property, Seattle, WA, entered under King County Superior Court No. 99-2-50226-4 SEA on December 7, 1999. The Consent Decree as stipulated above will be held in place until such time the project is complete, at which time the restrictive covenants will remain in perpetuity.

23. GOVERNING LAW

Except as provided in the preceding sentence, the City and SAM retain all rights and obligations as set forth in the Environmental Agreement. This Agreement shall be governed by the laws of the State of Washington. Venue of any action brought by one party against the other under this Agreement shall be in King County Superior Court.

24. SUCCESSORS AND ASSIGNS

The terms and conditions in this Agreement shall bind and inure to the benefit of the City and SAM, and except as otherwise provided herein, their successors and assigns.

25. NO THIRD-PARTY BENEFICIARIES

There are no third-party beneficiaries to this Agreement.

26. RELATIONSHIP OF PARTIES

Nothing in the Agreement shall be construed to create a partnership, joint venture, or relationship of employment or agency between the parties. The services to be rendered by SAM pursuant to this Agreement are as an independent contractor only.

27. INTEGRATION; AMENDMENT

This Agreement, together with its referenced Exhibits, contains all the agreements of the parties hereto relating to the subject matter addressed, and cannot be amended or modified except by written instrument approved by the Seattle City Council and by SAM. Notwithstanding the foregoing, DPR approval of future improvements is not deemed an amendment and does not require City Council approval.

28. TIME OF ESSENCE; FORCE MAJEURE

Time is of the essence of this Agreement. Any delay, stoppage, or prevention of a party's performance ("Delay") under this Agreement due to Force Majeure shall excuse the performance of the party affected for a period of time equal to the Delay. However, the parties shall take reasonable steps to minimize the length of Delay. "Force Majeure" shall mean a Delay attributable to any strike or other labor or industrial disturbance, civil disturbance, inability to secure customers, materials, supplies, or labor through ordinary sources, any changes in applicable laws or the interpretation thereof, or any lightening, earthquake, fire, or other cause beyond the reasonable control of the party for whom performance is required or its contractors or representatives.

29. NON-LIABILITY OF CITY OFFICIALS, EMPLOYEES, AND AGENTS

No elected or appointed board, commission, member, officer, employee or other agent of the City shall be personally liable to SAM, its successors, or assigns, in the event of any default or breach by the City or for any amount which may become due to SAM, its successors, and assigns, under this Agreement, or for any obligation of the City under this Agreement.

30. SURVIVAL OF INDEMNITIES

The indemnities under this Agreement shall survive termination or expiration for a period of 3 years after termination or expiration of this Agreement, and no action based on any indemnity under this Agreement may be commenced thereafter.

31. ATTORNEYS' FEES

If legal proceedings are initiated to enforce any term of this Agreement, then the substantially prevailing party shall be entitled to recover, as an element of its cost of suit and not as damages, reasonable attorneys' fees and costs to be fixed by the court, including those incurred on appeal.

32. CONSTRUCTION

The titles of sections, captions or other divisions of this Agreement, are solely for the convenience of the parties and do not define or limit its contents or meaning. This Agreement is a negotiated instrument and shall not be construed as if it had been prepared by one of the parties but rather as if both parties had prepared it.

33. AUTHORITY

Each party represents to the other that the person signing this agreement on its behalf is authorized to do so and that each party has taken all such actions that are required of that party in order to enter into a binding agreement.

34. EXHIBITS

The exhibits attached hereto are incorporated herein by this reference.

35. COUNTERPARTS

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall be taken together to constitute one and the same agreement.

Dated: ________________________, 2005

CITY: THE CITY OF SEATTLE By: _______________________ Name: Greg Nickels Title: Mayor, signing by authority of Ordinance No. ____________ Date: _____________________

SAM: SEATTLE ART MUSEUM, A Washington nonprofit corporation By: _____________________________ Name: ___________________________ Title: Chairperson of Board of Trustees Date: ___________________________

CONSENT BY MUSEUM DEVELOPMENT AUTHORITY

The MDA is signing this Consent as the fee title owner of the MDA Property (Parcel D) and as lessee of that certain lease for the SAM Property (Parcels A and B), as described in Recital J, for the sole purpose of consenting to the terms and conditions of this Agreement between the City and SAM. In addition to SAM's rights under the ground lease for the MDA Property, the MDA hereby consents to SAM's entry upon, construction of and operation of the improvements upon the MDA Property and the SAM Property. The MDA hereby consents to SAM's acting on its behalf in all matters related to the execution and implementation of the terms of this Agreement. The MDA shall have no liability or obligations under this Agreement to SAM or to the City, except for MDA's agreement to execute the Grant of Access.

MUSEUM DEVELOPMENT AUTHORITY OF SEATTLE, a public corporation chartered by the City of Seattle By:____________________ Print Name:____________ Print Title:___________

October 31, 2005 ta