ORDINANCE .

AN ORDINANCE granting the Plaza 600 Building L.L.C. permission to maintain and operate a vehicular and pedestrian tunnel under and across the 6th 7th Avenues Alley, north of Stewart Street, for a ten (10) year term, renewable for two successive ten-year terms, specifying the conditions under which this permit is granted, providing for acceptance of the permit and conditions, and superseding Ordinance 97096.

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Subject to terms and conditions of this ordinance, permission is hereby granted to the Plaza 600 Building L.L.C., its successors and assigns ("Permittee") to maintain and operate a vehicular and pedestrian tunnel under and across the 6th 7th Avenues Alley, north of Stewart Street. Said tunnel shall be used as a passageway for vehicles and pedestrians in connection with the operation of Permittee'e business or any facilities used in connection therewith.

Section 2. The permission herein granted to the Permittee, its successors and assigns shall be for a term of ten (10) years, commencing November 1, 1998 and terminating at 11:59 p.m. on the last day of the tenth year; provided, however, that upon written application of the Permittee at least thirty (30) days before expiration of the term, the City Council may, by resolution, renew the permit for two (2) successive ten (10) year terms, provided further that the total term of the permission as originally granted and thus extended shall not exceed thirty (30) years, subject to the right of The City of Seattle ("City") by ordinance to then revise any of the terms and conditions contained herein.

Section 3. The permit granted hereby is subject to primary and secondary use by the public for travel and utility purposes, and the City expressly reserves the right to require the Permittee to remove the tunnel at Permittee's sole cost and expense in the event that:

(a) the City Council determines, by ordinance, that the space occupied by the tunnel is necessary for any primary or secondary public use or benefit, or that the tunnel

interferes with any primary or secondary public use or benefit; or

(b) The Director of Transportation ("Director") determines that any term or condition of this ordinance has been violated, and such violation is not corrected by the Permittee within thirty (30) days of written notification from the City.

A City Council determination that the space is necessary for a primary or secondary public use or benefit shall be conclusive and final.

Section 4. In the event that the permit is not renewed, or the permission hereby granted extends to its termination in thirty (30) years, or the City orders removal of the tunnel pursuant to the terms of this ordinance, then within ninety (90) days after such expiration, termination or order of removal, or prior to the date stated in an "Order to Remove", as the case may be, the Permittee shall remove the tunnel and shall place all portions of the alley that may have been disturbed for any part of the tunnel, in as good condition for public use as it was prior to construction, and in at least as good condition in all respects as the abutting portions thereof. Whereupon the Director shall issue a certificate discharging the Permittee from responsibility under this ordinance for occurrences after the date of such discharge.

Section 5. The Permittee shall not commence reconstruction, relocation, readjustment or repair of the tunnel except under the supervision of, and in strict accordance with plans and specifications approved by the Director. The Director in his/her judgment may order such reconstruction, relocation, readjustment or repair of the tunnel at the Permittee's own cost and expense because of the deterioration or unsafe condition of the tunnel, grade separations, or the installation, construction, reconstruction, maintenance, operation or repair of any and all municipally owned public utilities.

Section 6. After notice to the Permittee, and failure of the Permittee to correct said unsafe or risk prone condition within the time stated in such notice, the Director may order the tunnel closed if the Director deems that it has become unsafe or creates a risk of injury to the public. In a

situation in which there is an immediate threat to the health or safety of the public, notice is not required.

Section 7. Not withstanding termination or expiration of the permission granted, or closure or removal of the tunnel the Permittee shall remain bound by its obligation under this ordinance until:

the tunnel and all its equipment and property are removed from the alley;

the area is cleared and restored in a manner and to a condition satisfactory to the Director; and

the Director certifies that the Permittee has discharged its obligation herein.

Provided, that upon prior notice to the Permittee and entry of written findings that such is in the public interest, the Director may, in his/her sole discretion, excuse the Permittee, conditionally or absolutely, from compliance with all or any of the Permittee's obligations to remove the tunnel and its property and restore disturbed areas.

Section 8. The tunnel shall remain the exclusive responsibility of the Permittee. The Permittee, by acceptance of this ordinance and the permission hereby granted, does release 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, with The City of Seattle, to at all times protect and save harmless The City of Seattle from all claims, actions, suits, liability, loss, costs, expense 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 the Permittee, 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 said tunnel, or any portion thereof, or by reason of anything that has been done, or may at any time be done, by the Permittee, its

successors or assigns, by reason of this ordinance, or by reason of the Permittee, its successors or assigns, failing or refusing to strictly comply with each and every provision of this ordinance; and if any such suit, action or claim be filed, instituted or begun against the City, the Permittee its

successors or assigns, shall, upon notice thereof from the City, defend the same at its sole cost and expense, and in case judgment shall be rendered against the City in any suit or action, the Permittee, its successors or assigns, shall fully satisfy said judgment within ninety (90) days after such action or suit shall have been finally determined, if determined adversely to the City. Provided that if it is determined by a court of competent jurisdiction that RCW 4.24.115 applies to this ordinance, then in the event claims or damages are caused by or result from the concurrent negligence of:

(a) the City, its agents, contractors or employees;

(b) the Permittee, its agents, contractors, employees or its successors or assigns, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Permittee or the Permittee's agents, contractors, employees or its successors or assigns.

Section 9. For as long as the Permittee, its successors and assigns, shall exercise any permission granted by this ordinance and until the tunnel is entirely removed from its location as described in Section 1 or until discharged by order of the Director of Seattle Transportation as provided in Section 7 of this ordinance, the Permittee shall obtain and maintain in full force and effect, at its own expense, insurance policies which protect the City from any all claims and risks in conjunction with:

(a) reconstruction, operation, maintenance, use or existence of the tunnel permitted by this ordinance and of any and all portions of the tunnel;

(b) the Permittee's activity upon or the use or occupation of the area described in Section 1 of this ordinance, as well as;

(c) any and all claims and risks in conjunction with and activity performed by the Permittee by virtue of the permission granted by this ordinance.

Minimum insurance requirements shall be an occurrence form policy of commercial general liability, placed with a company admitted and licensed to conduct business in Washington State. Minimum

policy limits shall be $2,000,000 per occurrence, $4,000,000 annual aggregate. Coverage shall specifically name the tunnel exposure. Coverage shall add by endorsement The City of Seattle, its elected and appointed officers, officials, employees and agents as additional insured. Coverage

shall contain a Separation of Insureds Clause indicating essentially that " except with respect to the limits of insurance, and any rights or duties specifically assigned in this coverage part to the first named insured, this insurance applies as if each named insured were the only named insured, and separately to each insured against whom claim is made or suit is brought". Evidence of current coverage shall be submitted to the City in the form of a copy of the full insurance policy with all endorsements attached thereto, and is a condition to the validity of this permit.

Whenever in the judgment of the Risk Manager of The City of Seattle, such insurance filed pursuant to the provisions hereof shall be deemed insufficient to fully protect The City of Seattle, the

Permittee shall, upon demand by the Risk Manager, furnish additional insurance in such amount as may be specified by the Risk Manager.

Section 10. The Permittee shall require that any and all of its contractors performing construction work on the premises as contemplated by this permit, name The City of Seattle as an additional insured on all policies of public liability insurance, and shall include in all contract documents a provision extending construction indemnities and warranties granted to Plaza 600 Building L.L.C.

Section 11. Within sixty (60) days after the effective date of this ordinance the Permittee shall deliver to the Director of Transportation for filing with the City Clerk a good and sufficient bond in the sum of Twenty-Five Thousand Dollars ($25, 000.00) executed by a surety company authorized and qualified to do business in the State of Washington conditioned that the Permittee will comply with each and every provision of this ordinance and with each and every order of the Director pursuant thereto; provided, that if the Mayor of the City of Seattle in his/her judgment

shall deem any bond or bonds filed to be insufficient and demand a new or additional bond, the Permittee shall furnish a new or additional bond in such amount as the Mayor may specify to be

necessary to fully protect the City. Said bond shall remain in effect until such time as the tunnel

is entirely removed from its location as described in Section 1, or until discharged by order of the Director as provided in Section 7 of this ordinance.

Section 12. The Permittee, its successors and assigns shall not assign, transfer, mortgage, pledge or encumber any privileges conferred by this ordinance without the consent of the City Council by resolution. If permission is granted, the assignee or transferee shall be bound by all terms and conditions of this ordinance. The permission conferred by this ordinance shall not be assignable or transferable by operation of law.

Section 13. The Permittee, its successors and assigns, shall pay to The City of Seattle such amounts as may be justly chargeable by said City as costs of inspection of said tunnel during reconstruction, repair, annual structural inspections, and at other times deemed necessary to ensure the safety of the tunnel, under the direction of the Director of Transportation and in addition shall promptly pay to the City in advance upon statements rendered by the Director of Transportation an annual fee for the privileges granted and exercised hereunder of Two Thousand Eight Hundred Seven Dollars ($2,807.00) for each of the first five years of the permit. The fee will then be evaluated by the City and a new fee will be established by resolution of the City Council for each succeeding five years of the permit. All payments shall be made to the City Finance Director for credit to the General Fund.

Section 14. The Permittee shall deliver its written acceptance of the permission conferred by this ordinance and its terms and conditions to the Director of Transportation within sixty (60) days after the effective date of this ordinance. The acceptance shall be filed with the City Clerk. If no such acceptance is received by then, the privileges provided by this ordinance shall be deemed

declined or abandoned; and the permission extended, contingent upon its acceptance, deemed lapsed and forfeited.

Section 15. 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 of the City of Seattle this ______ day of ______________, 1999, and signed by me in open session in authentication of its passage this ______ day of _________________, 1999.

____________________________________

President __________ of the City Council

Approved by me this _________ day of ________________________________ 1998.

____________________________________

Mayor

Filed by me this _____________ day of ________________________________ 1998.

___________________________________

City Clerk

(Seal)

RHA:rha

09/04/98