ORDINANCE _________________

AN ORDINANCE authorizing the Superintendent of Parks and Recreation to sign an Air Space Lease with the Washington State Department of Transportation for improvement and use of lands of the State of Washington between East Galer Street and Shelby Avenue for "I-5 Open Space Area" as described in the Neighborhood Parks, Green Spaces, Trails, and Zoo Levy.

WHEREAS, the Eastlake Neighborhood Plan identified the I-5 Open Space area as a potential open space asset; and

WHEREAS, the Transportation Element of the City's Comprehensive Plan defines portions of the I-5 Open Space Area as a potential Urban Trail; and

WHEREAS, the Neighborhood Parks, Green Spaces, Trails, and Zoo Levy (2000 Parks Levy) authorized $1,825,000 for development of open space improvements consistent with the objectives of the Neighborhood Plan and elements of the City's Comprehensive Plan related to Trails at this site; and

WHEREAS, the City of Seattle intends to make substantial improvements to the I-5 Open Space Area and it is in the best interests of the City to secure the improvement investment with a long-term lease of the premises; and

WHEREAS, the City and the State have negotiated an Air Space Lease securing the site until such time as the State elects to improve the freeway through its proposed "I-5 Concrete Pavement Rehabilitation Project" with an option to extend for a second term; and

WHEREAS, the execution of the Air Space Lease must be accomplished prior to the construction of the City's proposed improvements; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Superintendent of Parks and Recreation is hereby authorized to sign an Air Space Lease substantially in the form of Attachment 1 to this ordinance affecting real property described as:

That portion of SR 5, Seattle Freeway lying between East Galer Street and East Newton Street, and below the elevated surface of SR 5, situate in Seattle, King County, Washington, in Section 20, Township 25 North, Range 4 East, W.M. described as follows:

Commencing at the south 1/4 corner of said Section 20-25-4, thence N 88 degrees 52'19" W along the south line of said section, a distance of 334.51 feet to the intersection with the easterly margin of Franklin Avenue East as platted in Doyle's Addition (v3,p122). Thence N 12 degrees 14'00" E along said easterly margin of Franklin Avenue East a distance of 442.83 feet to an intersection with the westerly limit of SR 5 at highway station 2304+94.63 Left 150.00 feet. Said point being the True Point of Beginning.

Thence following the westerly limit of SR 5 along the following courses.

Thence continuing N 12 degrees 14'00" E along the easterly margin of Franklin Avenue East, said line being common to the westerly limit of SR 5, a distance of 122.81 feet to the northwesterly corner of Block 2 of said Doyle's Addition at highway station 2306+17.07, Left 159.39 feet.

Thence N 18 degrees 46'24" E a distance of 63.04 feet to the southwest corner of Block 6 Hilton's Addition (v3,p157) at highway station 2306+80.07, Left 156.96 feet.

Thence N 15 degrees 02'11" E a distance of 316.73 feet to the northwest corner of said Block 6, at highway station 2310+04.92, Left 159.71 feet.

Thence N 3 degrees 25'29" E a distance of 60.05 feet to a point on the south line of Block 1 Hilton's Addition, said point being 2.45 feet easterly of the southwest corner of said Block 1, at highway station 2310+66.32, Left 170.00 feet and said point being the beginning of a non tangent curve to the left.

Thence northerly along said curve to the left, having a radial bearing of N 77 degrees 05'21" W, a radius of 4414 feet, a central angle of 2 degrees 50'20", an arc distance of 218.70 feet to a point on the south line of Lot 10, said Block 1, Hilton's Addition at highway station 2312+93.41, Left 170.00 feet.

Thence S 77 degrees 08'01" W along said south line of Lot 10 a distance of 16.29 feet to a non-tangent point of curvature to the left at highway station 2312+86.79, Left 185.00 feet.

Thence northerly along said curve to the left, having a radial bearing of N 79 degrees 50'43" W, a radius of 4399 feet, a central angle of 2 degrees 58'14", an arc distance of 228.07 feet to a point on the south line of Lot 7, Block 1, Lake Union Heights Addition (v13, pg70) at highway station 2315+24.45, Left 185.00 feet.

Thence N 88 degrees 56'15" W along said southerly line of Lot 6 a distance of 15.09 feet to a non-tangent point of curvature to the left at highway station 2315+22.77, Left 200.00 feet.

Thence northerly along said curve to the left, having a radial bearing of N 82 degrees 47'42" W, a radius of 4384 feet, a central angle of 1 degrees 50'59", an arc distance of 141.53 feet to the centerline of Franklin Place East as platted in Lake Union Heights (v13,p70), at highway station 2316+70.76, Left 200.00 feet.

Thence leaving the westerly limit of SR 5 along the following courses.

Thence N 36 degrees 29'04" E along said centerline of Franklin Place East a distance of 73.00 feet to a point at highway station 2317+35.54, Left 161.82.

Thence S 38 degrees 51'46" E a distance of 83.00 feet to a point at highway station 2316+74.57, Left 105.07 feet.

Thence N 36 degrees 29'04" E a distance of 40.67 feet to the southerly edge of the southerly existing concrete walk of Lakeview Blvd East, at highway station 2317+10.01, Left 83.88 feet.

Thence S 34 degrees 27'03" E along said southerly edge a distance of 261.00 feet to the beginning of a curve to the right, at highway station 2315+11.74, Right 85.85 feet.

Thence east and south along said curve to the right having a radial bearing of S 55 degrees 32'57" W, a radius of 250.00 feet, a central angle of 35 degrees 29'40" an arc distance of 154.87 feet to an intersection with the easterly limit of SR 5 at station 2313+76.94, Right 150.00 feet. Said point being a non-tangent point of compound curvature.

Thence following the easterly limits of SR 5 the following courses.

Thence southerly along a curve to the right having a radial bearing of N 80 degrees 58'20" W, a radius of 4734 feet, a central angle of 5 degrees 59'29", an arc distance of 495.04 feet to a point on the northerly edge of the existing SR 5 off ramp at East Garfield Street as platted in Almond Addition Replat (v7, p15), at highway station 2308+97.59, Right 150.00 feet. Said point being a non-tangent point of reverse curvature.

Thence leaving the easterly limits of SR 5 through the following courses.

Thence westerly and southerly along a curve to the left, following the northerly and westerly edge of said existing SR 5 off ramp, having a radial bearing of S 29 degrees 30'38" E, a radius of 154.15 feet, a central angle of 43 degrees 53'22", an arc distance of 118.08 feet to a point of tangency at highway station 2307+94.37, Right 105.39 feet.

Thence S 16 degrees 36'00"W a distance of 310.00 feet to a point at highway station 2304+84.85, Right 105.00 feet.

Thence N 73 degrees 24'00"W a distance of 255.00 feet to a point on the westerly limit of SR 5 at highway station 2304+84.85, Left 150.00 feet,

Thence N 16 degrees 36'00" E along said westerly limit of SR 5 a distance of 9.78 feet to an intersection with the easterly margin of Franklin Avenue East at highway station 2304+94.63, Left 150.00 feet

and the True Point of Beginning.

Containing 342,039.0 sq ft 7.85 acres

Section 2. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and confirmed.

Section 3. 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 _________, 2004, and signed by me in open session in authentication of its passage this _____ day of __________, 2004.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2004.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2004.

____________________________________

City Clerk

(Seal)

Attachment 1: Air Space Lease

Terry Dunning

DPR I5 Lease ORD

11/02/04

version #1

Attachment 1 to DPR I5 Lease Ordinance

Revised 8/02

RES 420

AA 1-11623

IC: 1-17-06970

Fed. Aid No. ()

SR 5, Seattle Freeway: East Galer St. to Shelby St.

A I R S P A C E L E A S E

THIS IS A LEASE made and entered into between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, ("WSDOT"), and the CITY OF SEATTLE, ("CITY") a municipal corporation, acting through its Department of Parks and Recreation;

WHEREAS, the land and premises to be leased were purchased in fee by WSDOT, for highway rights of way, with State Motor Vehicle Funds and Federal Aid highway funds, and are not presently needed exclusively for highway purposes; and

WHEREAS, the CITY desires to use the premises to be leased to construct, operate and maintain hillclimbs, bicycle and mountain bike trails, landscaping and an off leash area (Permitted Uses) as an interim use for which economic rent in the amount of $2,500 (Two Thousand Five Hundred and 00/100ths dollars) per month is due, until the land and premises to be leased are needed for a highway purpose; and

WHEREAS, the CITY's assumption of WSDOT's maintenance of the property, the CITY's Permitted Uses of the property will discourage vagrancy and provide increased security, and the CITY's assumption of WSDOT's obligations to remove litter, graffiti, and vagrant camps serve a highway purpose that is equivalent in value to the economic rent; and

WHEREAS, WSDOT is granted authority to lease property under RCW 47.12.120; and

WHEREAS, the CITY has authority to lease property pursuant to Article 1, Section 1 of "The Charter of The City of Seattle" as adopted at the General Election of March 12, 1946 and as amended.

NOW THEREFORE in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREED THAT:

1. LEASED PREMISES. WSDOT does hereby lease to the CITY, and the CITY does hereby lease from WSDOT, the premises ("Leased Premises" or "Premises") located in the SW1/4 of the SE1/4 and the NW1/4 of the SE1/4 in Section 20, Township 25 North, Range 4 East, W.M. In King County Washington, and known to be a portion of the highway right of way of SR 5, Seattle Freeway: East Galer St. to Shelby St. Sheets 1 and 2 of 4 sheets, and as further shown hachured on Exhibit A attached hereto and by this reference incorporated herein.

The Leased Premises consists of 7.5 acres of land, more or less.

2. TERM. The term of this lease ("Lease") shall COMMENCE ON THE DATE OF EXECUTION OF THIS LEASE BY WSDOT ("Commencement Date") and terminate thirty (30) days prior to the advertisement for bids for the construction on the I-5 Concrete Pavement Rehabilitation Project.

3. RENEWAL. This Lease may be renewed by CITY for (1) additional Ten (10) year period ("Renewal Period"); Provided that; (A.) CITY is not in default and has not been in default during the term of this Lease; (B.) there is no other public need for the Leased Premises; (C.) CITY's continued use under this Lease does not impair the safety or operation of WSDOT 's highway or facility, as solely determined by WSDOT; and (D.) the terms and conditions of this Lease conform to then existing state policies or practices, laws, regulations and contracts, or provided CITY is willing to amend this Lease to bring it into compliance with such policies, practices, laws, regulations, and contracts. The Renewal Period shall be on the same terms and conditions as set forth herein, except as modified by any changes in policies, practices, laws, regulations or contracts and as reflected in a written amendment signed by both parties. CITY shall give notice of its intent to renew this Lease for the Renewal Period at least ninety (90) days, but not more than six (6) months, prior to the expiration of this Lease, or any extension thereof.

4. CONSIDERATION.

A. The CITY's assumption of WSDOT's maintenance of the Leased Premises, the CITY's discouragement of vagrancy and increased security of the Leased Premises, and the CITY's assumption of WSDOT's obligations to remove litter, graffiti, and vagrant camps are hereby deemed a highway benefit and/or serving a highway purpose and is equivalent in value to the economic rent of the Leased Premises of $2,500.00 (Two Thousand Five Hundred and 00/100ths dollars) per month.

B. In the event of a change in the CITYs authorized use of the Premises, which use, in WSDOT's determination, does not provide a highway benefit and/or serve a highway purpose, the parties agree to amend this Lease to require monetary rent retroactively to the change in use. Fair market rent will be determined by an appraiser agreed upon by WSDOT and CITY.

C. In the event the Lease is modified to require rent payment, WSDOT's acceptance of late payment charges and/or any portion of the overdue payment shall in no event constitute an accord and satisfaction, compromise of such payment, or a waiver of CITY's default with respect to such overdue payment, nor prevent WSDOT from exercising any other rights and remedies granted in this Lease.

5. TERMINATION BY WSDOT.

A. WSDOT may terminate this Lease, without penalty or further liability as follows:

(1) Upon not less than thirty (30) days prior written notice to CITY, if CITY defaults, and fails to cure such default within that thirty (30) day period, or such longer period, as may be reasonably determined by WSDOT, if CITY is diligently working to cure the default;

(2) Upon not less than thirty (30) days prior written notice to CITY, if CITY does not begin construction of the improvements, as described in Section 11, "Use of Leased Premises" herein, or as shown on Exhibit B, within One Hundred and Twenty (120) days from the Commencement Date of this Lease, and complete the work within Three Hundred and Sixty Five (365) days of the beginning of said construction. WSDOT and CITY may mutually agree in writing to extend the above periods to accommodate conditions out of the control of either party, such as, but not limited to, weather, availability of equipment, and availability of utilities.

(3) Immediately, upon written notice, if WSDOT is required by court order, by legislative action, or by a governmental agency having jurisdiction to take some action, which would effectively prohibit CITY's use of the Leased Premises;

(4) Immediately, upon written notice, if a receiver is appointed to take possession of CITY's assets, CITY makes a general assignment for the benefit of creditors, or CITY becomes insolvent or takes or suffers action under the Bankruptcy Act;

(5) Upon not less than ninety (90) days prior written notice, unless an emergency exists, as determined by WSDOT, then immediately, if WSDOT determines that it is in the best interest of WSDOT to terminate this Lease; or

(6) Upon not less than thirty (30) days prior written notice if the Leased Premises has been abandoned, in the STATE's sole judgment, for a continuous period of ninety (90) days.

B. It is hereby acknowledged and agreed that the highway use of the Leased Premises is paramount to any other use, including CITY's interim use of the Leased Premises for a public recreational area.

C. Waiver or acceptance of any default of the terms of this Lease by WSDOT shall not operate as a release of CITY's responsibility for any prior or subsequent default.

D. If CITY defaults on any provision in this Lease, three (3) times within a twelve (12) month period, the third default shall be deemed "non-curable" and this Lease may be terminated by WSDOT on not less than thirty (30) days prior written notice.

6. TERMINATION BY CITY. CITY may terminate this Lease without penalty or further liability as follows:

A. Upon not less than ninety (90) days prior written notice for any reason;

B. Upon not less than thirty (30) days prior written notice, if WSDOT defaults and fails to cure such default within that thirty (30) day period, or such longer period, as may be reasonably determined by CITY, if WSDOT is diligently working to cure the default;

C. Immediately, upon written notice, if in CITY's judgment the Leased Premises is destroyed or damaged so as to substantially and adversely affect CITY's authorized use of the Leased Premises; or

D. Immediately, upon written notice to WSDOT, if the CITY adopts a budget that does not provide sufficient funds to meet the obligations set forth herein, at which point the CITY will not interfere with WSDOT's ability to dispose of the improvements.

7. NONAPPLICABILITY OF RELOCATION ASSISTANCE. CITY acknowledges that this Lease does not at any time entitle CITY to assistance under the Uniform Relocation and Real Property Acquisition Policy (Ch. 8.26 RCW).

8. ENCUMBRANCES. CITY shall not encumber the Leased Premises.

9. SUBSEQUENT USE FOR TRANSPORTATION PURPOSES.

A. CITY and WSDOT hereby affirm that the Leased Premises is part of the highway right of way of Interstate 5, and will remain so even after CITY is permitted to improve and use the Leased Premises for a public recreational area on an interim basis only, and that upon expiration or termination of this Lease for any reason, and the subsequent use of the Leased Premises for transportation or other purposes, such use will not be considered the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge within the meaning of 23 U.S.C. 138 and 49 U.S.C. 303.

B. Within thirty (30) days of occupancy, CITY, at its expense, shall erect and maintain a permanent sign at each access point to the Leased Premises approved by WSDOT stating as follows:

"This public recreational area is located on highway right of way under an Agreement between City of Seattle, acting through its Department of Parks and Recreation and the Washington State Department of Transportation. USE AT YOUR OWN RISK OBJECTS MAY FALL FROM THE OVERHEAD HIGHWAY STRUCTURE."

10. USE OF LEASED PREMISES.

A. No use other than the construction, operation, and maintenance of the Permitted Uses as set forth in Exhibit B are permitted without the prior written approval of WSDOT. CITY expressly agrees that it will not charge others to use the Leased Premises. No motorized vehicles will be allowed on the Leased Premises except for CITY's maintenance vehicles and emergency vehicles responding to an emergency on the Leased Premises. In using the Leased Premises, CITY shall comply with all applicable policies and regulations, including, but not limited to RCW 47.42 et seq. and WAC 468-66 et seq., heretofore adopted or hereafter promulgated by WSDOT or Homeland Security relative to the location, operation, and maintenance of improvements located on the Leased Premises.

B. Access to the Leased Premises shall be as shown on Exhibit A. Direct access to ramps or traveled lanes of limited access highways is not permitted. All grading and construction plans and any changes thereof are subject to approval by WSDOT. The CITY shall not commit or allow to be committed any waste upon the Leased Premises nor allow any public or private nuisance. The CITY shall construct bollards or otherwise secure vehicle access points to prevent unauthorized vehicles under the highway structure. The CITY will promptly provide the WSDOT Maintenance Supervisor, 425-739-3730, 10833 Northup Way NE, Bellevue, WA 98004, 10 (ten) keys or codes to any locking devices used at said access points.

C. CITY will not allow third parties to use the public recreational area for vehicular access to private property or improvements. The parties hereto acknowledge that the Leased Premises are unfenced public property and as such, incidental use may be made of the Leased Premises by neighbors and/or their invitees for pedestrian access to adjacent properties. WSDOT and CITY acknowledge that this incidental use does not create any third party rights. The CITY will defend any action brought by a third party asserting such rights.

D. In using the Leased Premises, it is expressly agreed that CITY shall (1.) comply with all applicable federal, state and local laws, ordinances, and regulations, including environmental requirements that are in force or which may hereafter be in force, and (2.) secure all necessary permits and licenses for the uses of the Leased Premises authorized in this Lease.

E. The CITY hereby acknowledges and agrees that the highway use of the Leased Premises is paramount to any other use, including the CITY's interim use of the Leased Premises.

11. SIGNS, DISPLAY LIGHTS, ADVERTISING MATERIALS. Signs, display lights, or advertising media/materials are not permitted unless they comply with Ch. 47.42 RCW and Ch. 468-66 WAC and are completely detailed on a separate plan sheet which requires specific prior written approval by WSDOT.

12. FENCES. Except as provided elsewhere herein, any WSDOT-owned fences in place at the time of execution of this Lease or relocated to separate the Leased Premises from the traveled roadway on limited access highways will be maintained by WSDOT for the duration of the Lease. Nothing is to be attached to WSDOT's fence without WSDOT's prior written approval. If any fence is damaged as a result of CITY's activities, CITY will immediately repair such damage at its cost and to WSDOT's satisfaction.

13. CONDITION OF THE PROPERTY. WSDOT and CITY acknowledge that they have jointly examined the Leased Premises and CITY accepts said Leased Premises in its present condition as of the Commencement Date of this Lease.

14. MAINTENANCE. The CITY agrees to maintain the Premises in accordance with WSDOT standards set forth in the WSDOT Maintenance Manual, and any amendments thereto, which by this reference are incorporated herein. Maintenance shall include, but not be limited to, all upkeep, cleaning and repair of the Permitted Uses and any access roads, walkways, lot-related signage, landscaping, illumination, litter receptacles, and such other fixtures and appurtenances which may be installed on the Premises. Maintenance shall also include snow and ice removal from the Premises and the improvements.

15. ENVIRONMENTAL REQUIREMENTS.

A. CITY and WSDOT represent, warrant and agree that they will conduct their activities on and off the Leased Premises in compliance with all applicable environmental laws. As used in this Lease, Environmental Laws means all federal, state and local environmental laws, rules, regulations, ordinances, judicial or administrative decrees, orders, decisions, authorizations or permits, including, but not limited to, the Resource Conservation and Recovery Act, 42 U.S.C. section 6901, et. seq., the Clean Air Act, 42 U.S.C. section 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. section 1251, et seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11001, et seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. section 2601, et seq., the Oil Pollution Liability and Compensation Act, 33 U.S.C. section 2701, et seq., and Washington or any other comparable local, state, or federal statute or ordinance pertaining to the environment or natural resources and all regulations pertaining thereto, including all amendments and/or revisions to said laws and regulations.

B. Toxic or hazardous substances are not allowed on the Leased Premises without the express written permission of WSDOT and under such terms and conditions as may be specified by the STATE. For the purposes of this Lease, "Hazardous Substances," shall include all those substances identified as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601, et seq., and the Washington Model Toxics Control Act, RCW 70.105D et seq., including all amendments and/or revisions to said laws and regulations, and shall include gasoline and other petroleum products. CITY is hereby authorized to bring onto the Leased Premises gasoline and petroleum products necessary to carryout the maintenance and operation requirements set forth in this Lease. In the event such permission is granted, the disposal of such materials must be done in a legal manner by CITY.

C. CITY agrees to cooperate in any environmental investigations conducted by WSDOT staff or independent third parties where there is evidence of contamination on the Leased Premises, or where WSDOT is directed to conduct such audit by an agency or agencies having jurisdiction. CITY will reimburse WSDOT for the cost of such investigations, where the need for said investigation is determined to be caused by CITY's operations. CITY will provide WSDOT with notice of any inspections of the Leased Premises, notices of violations, and orders to clean up contamination. CITY will permit WSDOT to participate in all settlement or abatement discussions. In the event that CITY fails to take remedial measures as duly directed by a state, federal, or local regulatory agency within ninety (90) days of such notice, WSDOT may elect to perform such work, and CITY covenants and agrees to reimburse WSDOT for all direct and indirect costs associated with WSDOT's work where said contamination is determined to have resulted from CITY's use of the Leased Premises. CITY further agrees that the use of the Leased Premises shall be such that no hazardous or objectionable smoke, fumes, vapors, odors, or discharge of any kind shall rise above the grade of the right of way.

D. For the purposes of this Lease, "Costs" shall include, but not be limited to, all response costs, disposal fees, investigatory costs, monitoring costs, civil or criminal penalties, and attorney fees and other litigation costs incurred in complying with state or federal environmental laws, which shall include, but not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601, et seq.; the Clean Water Act, 33 U.S.C. section 1251; the Clean Air Act, 42 U.S.C. section 7401; the Resource Conservation and Recovery Act, 42 U.S.C. section 6901; and the Washington Model Toxics Control Act, Ch. 70.105D RCW, et seq., including all amendments and/or revisions to said laws and regulations.

E. CITY agrees to defend, indemnify and hold harmless WSDOT from and against any and all claims, causes of action, demands and liability including, but not limited to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees associated with the removal or remediation of any Hazardous Substances that have been released, or otherwise come to be located on the Leased Premises, including those that may have migrated from the Leased Premises through water or soil to other properties, including without limitation, the adjacent WSDOT property, and which are caused by or result from CITY's activities on the Leased Premises. CITY further agrees to retain, defend, indemnify and hold harmless WSDOT from any and all liability arising from the offsite disposal, handling, treatment, storage, or transportation of any such Hazardous Substances removed from said Leased Premises. This obligation shall not include such claims, actions, demands and liability as shown above, which may be caused by the sole negligence of WSDOT or its authorized agents or employees; provided, that if the claims, actions, demands or liability are caused by or result from the concurrent negligence of (a) WSDOT, its agents or employees and (b) CITY, its assigns, subtenants, agents, contractors, licensees, invitees, or employees, this indemnity provision shall be valid and enforceable only to the extent of the negligence of CITY or its assigns, subtenants, agents, contractors, licensees, invitees or employees.

F. WSDOT agrees to defend, indemnify, and hold harmless the CITY from and against any and all claims, causes of action, demands and liability including, but not limited to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees associated with the removal or remediation of any Hazardous Substances that have been released, or otherwise come to be located on the Leased Premises, including those that may have migrated from the Leased Premises through water or soil to other properties, which are caused by or result from WSDOT's activities on the Leased Premises. WSDOT further agrees to retain, defend, indemnify, and hold harmless the CITY from any and all liability arising from the offsite disposal, handling, treatment, storage or transportation of any such Hazardous Substances removed from the Leased Premises. This obligation shall not include such claims, actions, demands and liability as shown above, which may be caused by the sole negligence of the CITY or its assigns, subtenants, agents, contractors, licensees, invitees, or employees; provided, that if the claims, actions, demands or liability are caused by or result from the concurrent negligence of (a) WSDOT, its authorized agents or employees and (b) CITY, its assigns, subtenants, agents, contractors, licensees, invitees, or employees, this indemnity provision shall be valid and enforceable only to the extent of the negligence of WSDOT or its authorized agents or employees.

G. The provisions of this section shall survive the termination or expiration of this Lease.

16. WSDOT'S RESERVATION OF RIGHT TO MAINTAIN AND GRANT UTILITY FRANCHISES AND PERMITS.

A. WSDOT reserves the right for utility franchise and permit holders to enter upon the Leased Premises to maintain, repair and enhance existing facilities and install new utilities and, for itself, to grant utility franchises and/or permits across the Leased Premises. Such installation will be accomplished in such a manner as to minimize any disruption to CITY. WSDOT will use its best efforts to provide the CITY with plans of said installation no less than ten (10) working days prior to the anticipated commencement of construction. The franchise/permit holder will be required to restore paving, landscaping, grading, or other improvements damaged by the installation. WSDOT also reserves the right to withdraw portions of the Leased Premises for uses such as, but not limited to, telecommunications transmission sites, which WSDOT determines to be reasonably compatible with CITY's authorized use of Leased Premises. In the event such withdrawals occur, the City and WSDOT shall promptly modify or amend those elements, if any, of this Lease to reflect the changed conditions of the Leased Premises.

B. CITY shall not disturb markers installed by a franchise/permit holder and will contact and provide notice to any franchise/permit holder and all owners of underground facilities prior to any excavation. CITY shall contact WSDOT and call the Underground Utility Locating Service, or its successor organization, as part of its efforts to ascertain any and all owners of underground utility facilities and to locate the utility. CITY shall not damage legally installed underground utilities. CITY shall comply with all applicable provisions of Chapter 19.122 RCW relating to underground facilities.

17. USE OF RIGHT OF WAY UNDER OR ADJACENT TO STRUCTURE.

A. CITY agrees to provide protection against vehicular hits or other likely causes of damage arising from CITY's use of the Leased Premises to all retaining walls and to piers exposed to such potential damage under any elevated highway structure existing on the Leased Premises. Such wall and pier protection shall be provided to the satisfaction of WSDOT prior to occupancy.

B. CITY shall not weld any metal object to any metal member of any metal structure, nor drill or rivet into nor otherwise fasten anything to any pier or beam on any concrete, metal, or wood structure without WSDOT's specific written approval of detailed drawings for such welding, riveting, drilling, or fastening.

C. CITY shall at its own expense, and upon prior written approval from WSDOT, make any provisions it deems necessary to protect users of the proposed facility from any hazards resulting from use and operation of the highway.

D. City shall close access to the Premises upon notification by WSDOT, at such times and for such durations as determined by WSDOT, when work is being performed on the overhead bridge structure.

18. TAXES, ASSESSMENTS, AND UTILITIES. CITY agrees to pay all assessments that benefit the Leased Premises and/or which may hereafter become a lien on the interest of CITY in accordance with RCW 79.44.010. CITY also agrees to pay all taxes that may hereafter be levied or imposed upon the interest of CITY or by reason of this Lease. CITY is responsible for and agrees to pay the cost of utilities, including, but not limited to, surcharges, fuel adjustments, rate adjustments and taxes that serve the Leased Premises.

19. LIENS.

A. Nothing in this Lease shall be deemed to make CITY the agent of WSDOT for purposes of construction, repair, alteration, or installation of structures, improvements, equipment, or facilities on the Leased Premises. CITY acknowledges that WSDOT may not, and shall not, be subject to claims or liens for labor or materials in connection with such activities by CITY.

B. CITY shall at all times indemnify and hold harmless WSDOT from all claims for labor or materials in connection with construction, repair, alteration, or installation of the CITY's structures, improvements, equipment, or facilities on or within the Leased Premises, and from the cost of defending against such claims, including attorney fees.

C. In the event a lien is filed upon the Leased Premises due to an act or omission of CITY, its agents, contractors or employees, CITY shall:

1. Record a valid Release of Lien;

2. Deposit sufficient cash with WSDOT to cover the amount of the claim on the lien in question and authorize payment to the extent of said deposit to any subsequent judgment holder that may arise as a matter of public record from litigation with regard to lienholder claim; or

3. Procure and record a bond which releases the Leased Premises from the claim of the lien and from any action brought to foreclose the lien.

D. Should CITY fail to accomplish 1, 2, or 3, above, within fifteen (15) days after the filing of such a lien, the Lease shall be in default.

20. WSDOT'S RIGHT OF ENTRY AND INSPECTION.

A. WSDOT, for itself, its agents and contractors, and for the Federal Highway Administration, reserves the right to enter upon the Leased Premises at any time without notice to CITY for the purpose of inspection, maintenance, construction, or reconstruction of the highway facility or any element thereof, or to perform environmental audits as provided for elsewhere in this Lease. Any loss of the use of the Leased Premises by CITY due to WSDOT's exercise of such right will not be compensated, and WSDOT shall in no way be responsible for any incidental or consequential damages due to such loss of use, if any, by CITY.

B. WSDOT and FHWA may from time-to-time go upon the Leased Premises for the purpose of inspecting any, construction, or maintenance work being done by CITY. This right shall not impose any obligation upon WSDOT to make inspections to ascertain safety of CITY's improvements or the condition of the Leased Premises.

C. Entry upon the Leased Premises for any other purpose by WSDOT and FHWA shall be conducted with reasonable notice to CITY and during the hours of 8:00 a.m. to 5:00 p.m.

21. INSURANCE.

A. CITY warrants that it is self-insured, and agrees to provide acceptable evidence of its self-insured status to WSDOT. CITY's insurance policy must provide liability coverage for the Leased Premises, including public liability coverage for bodily injury, property damage, and personal injury of not less than Two Million and no/100 Dollars ($2,000,000.00) combined single limit per occurrence, with a general aggregate amount of not less than Four Million and no/100 Dollars ($4,000,000.00) per policy period. CITY shall increase the policy limits at its sole cost, when and if WSDOT deems it necessary due to CITY's use of the Leased Premises.

B. CITY assumes all obligations for premium payment, and in the event of nonpayment, CITY is obligated to reimburse WSDOT the cost of maintaining the insurance coverage and any legal fees incurred in enforcing such reimbursement should CITY fail to pay the policy premiums.

C. Coverage, if obtained by CITY in compliance with this section, shall not be deemed as having relieved CITY of any liability in excess of such coverage.

D. In the event CITY, after commencement of this Lease, elects to terminate its self-insured status and secure commercial liability coverage, CITY will promptly notify WSDOT, and provide a certificate of insurance from an insurer licensed to conduct business in the State of Washington, in the amounts and types as set forth in Section 21.A. above. Further, CITY shall provide a certificate of insurance within Ten (10) days of receiving a written notice from WSDOT for an increase in the coverage amounts.

22. HOLD HARMLESS/INDEMNIFICATION.

A. CITY, its successors and assigns, will protect, save, and hold harmless WSDOT, its authorized agents and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omissions of the CITY, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in connection with any acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Leased Premises. CITY further agrees to defend WSDOT, its agents or employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced, arising out of, or in connection with acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Leased Premises. This obligation shall not include such claims, actions, costs, damages, or expenses which may be caused by the sole negligence of WSDOT or its authorized agents or employees; provided, that if the claims or damages are caused by or result from the concurrent negligence of (a) WSDOT, its agents or employees and (b) CITY, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of CITY or its assigns, subtenants, agents, contractors, licensees, invitees, employees.

B. To the extent authorized by law, WSDOT, its successors and assigns will protect, save, and hold harmless the CITY, its authorized agents and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omissions of WSDOT, its agents or employees, arising out of or in connection with any acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Leased Premises. WSDOT further agrees to defend the CITY, its authorized agents or employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced, arising out of, or in connection with acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Leased Premises. This obligation shall not include such claims, actions, costs, damages, or expenses which may be caused by the sole negligence of the CITY or its authorized agents or employees; provided, that if the claims or damages are caused by or result from the concurrent negligence of (a) WSDOT, its authorized agents or employees and (b) the CITY, its authorized agents or employees, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of WSDOT or its authorized agents or employees.

C. The CITY specifically assumes potential liability for actions brought by the CITY's own employees against WSDOT and, solely for the purpose of this indemnification and defense, the CITY specifically waives any immunity under the state industrial insurance law, Title 51 RCW. This waiver has been mutually negotiated by the parties.

D. WSDOT specifically assumes potential liability for actions brought by the WSDOT's own employees against the CITY and, solely for the purpose of this indemnification and defense, WSDOT specifically waives any immunity under the state industrial insurance law, Title 51 RCW. This waiver has been mutually negotiated by the parties.

E. The CITY expressly assumes all liability for all claims, actions, costs, damages, or expenses of any nature whatsoever to the Leased Premises, improvements thereon, and users of the CITY's public use area by reason of the operation of the highway facility located above the Leased Premises, except that liability shall not extend to claims or actions arising from conditions or events resulting from WSDOT or WSDOT's contractors or employees failure to maintain or operate the highway consistent with normal standards of maintenance or operation for highway facilities nor shall such liability extend to the incidents arising from the actions of third parties having contractual obligations with WSDOT.

F. The indemnification provisions contained in this section shall survive the termination or expiration of this Lease.

23. PERSONAL PROPERTY. WSDOT shall not be liable in any manner for, or on account of, any loss or damage sustained to any property of whatsoever kind stored, kept, or maintained on or about the Leased Premises, except for such claims or losses that may be caused by WSDOT or its authorized agents or employees. Upon termination or expiration of this Lease, WSDOT or its agent may remove all personal property of CITY remaining on the Leased Premises at CITY's expense and dispose of it in any manner WSDOT deems appropriate. CITY agrees to reimburse WSDOT for the costs of such removal and disposal within thirty (30) days of the date of WSDOT's invoice.

24. ADDITIONAL CONSTRUCTION PROHIBITED. No new construction by CITY, other than as provided elsewhere herein, is permitted for the duration of this Lease, except as may be approved in advance and in writing by WSDOT.

25. WSDOT'S APPROVAL OF DESIGN AND CONSTRUCTION. CITY covenants that any regrading or improvements to be constructed on the Leased Premises will not at any time during or after construction either damage, threaten to damage, or otherwise adversely affect any part or element of the highway facility or the operation thereof. WSDOT shall be furnished with two sets of complete plans, details, and specifications and any revisions thereto for grading and all improvements proposed to be placed on the Leased Premises. No work shall be done without the prior written approval of such plans by WSDOT. All construction work shall be done in conformity with the plans and specifications as approved. WSDOT may take any action necessary, including directing that work be temporarily stopped or that additional work be done, to ensure compliance with the plans and specifications, protection of all parts and elements of the highway facility, and compliance with WSDOT's construction and safety standards. The improvements shall be designed and constructed in a manner that will permit access to the highway facility for the purpose of inspection, maintenance, and construction by WSDOT. WSDOT hereby approves the construction plans as set forth in Exhibit B.

26. "AS-BUILT" PLANS. Within ninety (90) days following CITY's completion of underground utilities and/or buildings or other construction, CITY shall furnish WSDOT a complete set of reproducible "As-Built" plans. If said plans are not received within ninety (90) days, this will be considered a default, and this Lease may be terminated pursuant to Section 5 herein.

27. NONDISCRIMINATION. CITY, for itself, its successors and assigns, as part of the consideration hereof, does hereby agree to comply with all applicable civil rights and antidiscrimination requirements, including, but not limited to, Chapter 49.60 RCW.

28. ASSIGNMENT. Neither this Lease nor any rights created by it may be assigned, sublet, or transferred. In the event that CITY allows others to use any portion of the Leased Premises, whether by written or oral agreement without WSDOT's prior written approval, WSDOT, in addition to or in lieu of terminating this Lease for default, and in addition to any damages it may experience, may demand a share of any revenue generated by such unauthorized use. WSDOT shall set the amount of said share, and its decision shall be final and binding. WSDOT may demand such share at any time during the term of this Lease. CITY shall pay said share to WSDOT within thirty (30) days of demand. CITY agrees to pay said share retroactively to the date the unauthorized third party's use of the Leased Premises commenced. Furthermore, such unauthorized assignment shall not relieve CITY hereunder from all of its obligations under this Lease, including but not limited to, payment of rent, if applicable, and maintenance of insurance.

29. PERFORMANCE BY WSDOT. If CITY defaults in the performance or observation of any covenant or agreement contained in this Lease, WSDOT, without notice if deemed by WSDOT that an emergency exists, or if no emergency exists, with thirty (30) days prior written notice, may direct CITY to stop work and may itself perform or cause to be performed such covenant or agreement and may enter upon the Leased Premises for such purpose. Such emergency shall include, but not be limited to, endangerment of life, the highway facility or failure of CITY to obtain in a timely manner the specified insurance coverage. CITY shall reimburse WSDOT the entire cost and expense of such performance by WSDOT within thirty (30) days of the date of WSDOT's invoice. Any act or thing done by WSDOT under the provisions of this section shall not be construed as a waiver of any agreement or condition herein contained or the performance thereof.

30. DISPOSITION OF IMPROVEMENTS. Upon termination of this Lease under any provision hereof, CITY agrees, if so directed by WSDOT, to obliterate the public recreational area, remove all improvements and personal property on the Leased Premises at CITY's expense, in a manner prescribed by WSDOT. In the event CITY fails to remove said improvements and/or personal property upon termination, WSDOT may remove and dispose of said improvements, as it deems appropriate and at CITY's expense. CITY shall reimburse WSDOT for all expenses incurred in such removal and disposal within thirty (30) days of the date of WSDOT's invoice for such costs.

31. WSDOT ACCESS TO REMOVE IMPROVEMENTS. In the event CITY fails to remove improvements or restore the Leased Premises to WSDOT's satisfaction, then if necessary or desirable in WSDOT's judgment for reasons of safety or economy, WSDOT or its agents shall have the right to cross any lands owned or otherwise controlled by CITY for the purpose of accomplishing said removal or restoration subject to applicable Street Use or other permitting requirements, which will not be unreasonably withheld, conditioned or delayed.

32. RESTORATION OF SITE. Prior to termination of this Lease, CITY agrees, if so directed by WSDOT, to restore the Leased Premises to its condition prior to CITY's occupancy, reasonable wear and tear excepted. This work is to be done at CITY's expense to the satisfaction of WSDOT.

33. VACATION OF LEASED PREMISES. Upon termination of this Lease, CITY shall cease its operations on and/or use of the Leased Premises. In the event CITY fails to vacate the Leased Premises on the date of termination, CITY shall be liable for any and all costs to WSDOT arising from such failure.

34. BINDING CONTRACT. This Lease shall not become binding upon WSDOT unless and until executed for WSDOT by the Secretary of Transportation or his duly authorized representative.

35. ATTORNEYS' FEES. In the event of any controversy, claim, or dispute arising out of this Lease, each party shall be solely responsible for the payment of its own legal expenses, including but not limited to, attorney's fees and costs.

36. MODIFICATIONS. This Lease contains all the agreements and conditions made between the parties hereto pertaining to the use of the Leased Premises herein described and may not be modified orally or in any other manner other than by a written agreement signed by all parties hereto. No failure on the part of a party to enforce any covenant or provision herein contained, nor any waiver of any right hereunder, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of that party to enforce the same in the event of any subsequent breach or default.

37. INTERPRETATION. This Lease shall be governed by and interpreted in accordance with the laws of the State of Washington. The titles to paragraphs, sections, or other parts of this Lease are for convenience only and shall have no effect on the construction or interpretation of any part hereof.

38. SEVERABILITY. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

39. VENUE. CITY agrees that the venue of any action or suit concerning this Lease shall be in the Thurston County Superior Court and all actions or suits thereon shall be brought therein, unless applicable law requires otherwise.

40. TOTALITY OF AGREEMENT. It is understood that no guarantees, representations, promises, or statements expressed or implied have been made by either party except to the extent that the same are expressed in this Lease.

41. NOTICES. Wherever in this Lease written notices are to be given or made, they will be served, personally delivered or sent by certified or overnight mail addressed to the parties at the addresses listed below unless a different address has been designated in writing and delivered to the other party. The parties agree to accept service of process at said addresses.

STATE: DEPARTMENT OF TRANSPORTATION

Attn.: Assistant Director, Property Management Program

310 Maple Park Avenue SE

P. O. Box 4-7338

Olympia, WA 98504-7338

TENANT: CITY OF SEATTLE

DEPARTMENT OF PARKS AND RECREATION

Attn: Manager, Property and Acquisition Services

800 Maynard Avenue South, 3rd Floor

Seattle, Washington 98134-1336

Signatures:

CITY OF SEATTLE STATE OF WASHINGTON

DEPARTMENT OF PARKS DEPARTMENT OF TRANSPORTATION

and RECREATION

By ___________________________________ By _________________________________

Gerald L. Gallinger

Title __________________________________ Director, Real Estate Services

Date: _________________________________ Date: _______________________________

APPROVED AS TO FORM

By:

Assistant Attorney General

____________________________, 2004

STATE AGENCY ACKNOWLEDGMENT

STATE OF WASHINGTON )

) ss

COUNTY OF )

On this ___________________ day of ____________________________, 2004 before me personally appeared Gerald L. Gallinger, to me known to be the duly appointed Director, Real Estate Services, and that he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said State of Washington, for the uses and purposes therein set forth, and on oath states that he was authorized to execute said instrument.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the __________ day of _________________________, 2004.

__________________________________________

(Signature)

__________________________________________

(Print or type name)

Notary Public in and for the State of Washington

residing at _________________________________

My commission expires ______________________

CORPORATE ACKNOWLEDGMENT

STATE OF WASHINGTON )

) ss

COUNTY OF )

On this ________________ day of ___________________________, 2004 before me personally appeared ________________________ to me known to be the _______________________ of the corporation that executed the foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument.

GIVEN under my hand and official seal the day and year last above written.

__________________________________________

(Signature)

__________________________________________

(Print or type name)

Notary Public in and for the State of Washington

residing at _________________________________

My commission expires ______________________

AA 1-11481

IC 1-17-06633

Name: City of Seattle, Department of Parks and Recreation

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