AN ORDINANCE relating to an agreement between the City Light Department and the Fleets and Facilities Department for use, maintenance, and habitat creation, restoration and enhancement at real property on the Duwamish River, authorizing the agreement and imposing a restrictive covenant against the real property.

WHEREAS, the City of Seattle is working cooperatively with the United States Army Corps of Engineers ("Corps") to resolve the permitting of property development activities by the City's Fleets and Facilities Department ("FFD") at the City of Seattle Joint Training Facility site at 9401 Myers Way South in Seattle, which resolution will include onsite and off-site environmental restoration and enhancement; and

WHEREAS, FFD has identified certain property currently under the jurisdiction of and used by Seattle City Light ("City Light"), located in the Hamm Creek watershed south of the Duwamish Substation enclosure on the Duwamish River at 10050 West Marginal Place South in Tukwila and unincorporated King County, as well suited for a project to create and restore intertidal habitat to support out-migrating juvenile salmon, to enhance shallow water habitat, and to increase upland connectivity and upland wildlife habitat value; and

WHEREAS, City Light has determined that the habitat project is compatible with City Light's continued use of property for electrical utility purposes; and

WHEREAS, the Corps has reviewed the attached Agreement for Property Use and Maintenance, and the Agreement is necessary to make possible resolution of matters pending between FFD and the Corps; and

WHEREAS, the City Council will consider a separate ordinance to authorize execution and implementation of a settlement agreement between the City of Seattle and the Corps and to impose a restrictive covenant against a wetland creation area on the Joint Training Facility property; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. City Light and FFD are hereby authorized to enter into, and to implement all the terms of, an Agreement for Property Use and Maintenance (the "Agreement"), substantially in the form attached to this ordinance as Attachment A, with any modification deemed reasonably acceptable to both the Superintendent of City Light and the Director of FFD, relating to the real property described in the Exhibit A to the Agreement (the "Property").

Section 2. The City Council finds and declares that development of the habitat project described in the Agreement is compatible with City Light's continued use of the Property for electrical utility purposes.

Section 3. The Superintendent of City Light, or his designee, and the Director of FFD, or her designee, are hereby authorized on behalf of the City of Seattle to cause the Agreement to be recorded against the titles to each of the parcels comprising the Property. The Agreement provides that it shall be considered a real property covenant that runs with the land.

Section 4. The City of Seattle 2007 Proposed Budget includes the sum of One Hundred Thousand Dollars ($100,000.00) to compensate for the appraised value of the restrictions placed on City Light's use of the Property by the Agreement, which sum is to be paid by FFD to City Light before execution of the Agreement for Property Use and Maintenance.

Section 5. Any act pursuant to the authority of this ordinance, and taken between its passage and effective date, is hereby ratified and confirmed.

Section 6. 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 _________, 20__, and signed by me in open session in authentication of its passage this _____ day of __________, 20__.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 20__.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 20__.

____________________________________

City Clerk

(Seal)

Attachment 1: Agreement for Property Use and Maintenance

TRW:trw

October 12, 2006

FFD SCL Use and Maintenance Agreement ORD v3.doc

Ver. #3a

1 Agreement for Property Use and Maintenance

This Agreement for Property Use and Maintenance ("Agreement"), is made between The City of Seattle, City Light Department ("City Light"), and The City of Seattle, Fleets and Facilities Department ("FFD"), effective as of the ___ day of _______, 2006. The City of Seattle is a Washington municipal corporation.

RECITALS

A. The City owns real property located in King County, State of Washington, which is legally described on Exhibit "A" which is attached hereto and incorporated herein by this reference (the "Project Area").

B. FFD wishes to carry out a mitigation project known as the Joint Training Facility Off-Site Mitigation Project according to plans approved by the United States Army Corps of Engineers (the "Project") on the Project Area for purposes of habitat creation, restoration and enhancement in accordance with the terms of a settlement agreement entered into between the U.S. Army Corps of Engineers and FFD. The Project design incorporates estuarine wetland and upland wildlife habitat restoration through construction of a small cove on the west shore of the Duwamish River, adjacent riverbank restoration, and upland native vegetation. The Project is designed to create intertidal habitat to support out-migrating juvenile salmon, including a new area of brackish intertidal marsh and mudflat habitat and other shallow water habitat enhancements. The Project will also increase upland connectivity and upland wildlife habitat value. Elements of the design are removal of some existing rip rap along the shoreline, laying back some banks, installing large woody debris at the shoreline, removing invasive and non-native plants, and installing native vegetation to provide shade, organic matter input, and habitat for bird and small mammals.

C. It is the intent of the parties herein to create a permanent agreement for the use and maintenance of the Project Area for the Project but reserving to City Light the remaining property uses and access.

D. The Project Area, located south of City Light's Duwamish Substation, was acquired and is used for electric utility purposes. Five power transmission towers and associated overhead high voltage lines are located on the Project Area. City Light has determined that the uses of, and restrictions on, the Project Area described in this Agreement are compatible with the continued use of the property for electric utility purposes.

AGREEMENT

The parties hereby agree as follows:

1) Agreement to Use the Project Area for the Project. City Light, for and in consideration of the sum of ONE HUNDRED THOUSAND and no/100 Dollars ($100,000.00) and other valuable consideration, receipt of which is hereby acknowledged, and FFD hereby agree to the terms and conditions set forth below, which shall give a perpetual right to FFD, and its successors and assigns, in, on, and across the Project Area , to construct, operate, maintain, repair, replace and monitor shoreline and upland habitat features, plantings, and any other improvements on the Project Area for fish and wildlife habitat improvements and other environmental benefits; including but not limited to the placement of and removal of materials or structures in the bed or banks that influence stream velocity or channel form; together with any necessary access for construction, operation, repair or replacement, maintenance, monitoring and other functions necessary to effectuate the Project in the Project Area, using contractors, agents and representatives of FFD's choice; allowing however to City Light, and its successors and assigns, the rights and privileges set forth in Section 3 below. Notwithstanding the generality of the foregoing, it is expressly understood that FFD shall use the Project Area only for the Project, which FFD shall construct, operate, maintain, repair and replace at FFD's sole cost and expense, substantially in accordance with the provisions of the aforementioned Settlement Agreement between the United States Army Corps of Engineers ("Corps") and FFD, and the Mitigation Plan, including any amendments, and with the approval of City Light to any Mitigation Plan amendment relating to the Project Area, which approval shall not be unreasonably withheld. A copy of the Settlement Agreement and the Mitigation Plan, identified as City of Seattle Joint Training Facility Wetland Mitigation Plan, as well as all amendments thereto, will be located and available for review and copying at Seattle Fleets and Facilities Department, Real Estate Services, 700 5th Avenue, Suite 5200, PO Box 94689, Seattle, WA 981244689. It is also understood by the parties that the Project will be subject to the terms, conditions and provisions required as a result of state and local permitting processes.

2) Prohibited Uses of Project Area by City Light and FFD. With the exception of all actions allowed by the provisions, terms and conditions of this Agreement, the parties agree not to alter the Project Area so as to cause adverse environmental impact to, or reduce the environmental benefit of, the Project, without the prior agreement of the Corps and the parties. The following activities and uses by City Light and FFD are expressly prohibited in the Project Area: (a) planting of trees or shrubs that obstruct the view through the perimeter fence from inside the Duwamish Substation (except for ground cover in the 12 foot copper ground grid area if it does not exceed one foot in height above a plane at the base of the fence, and vegetation planted in an area 12 22 feet from the fenceline if it does not exceed 4 feet in height above a plane at the base of the fence); (b) use of fertilizers, pesticides, herbicides or other chemicals; (c) planting of vegetation that is not indigenous to the Pacific Northwest; (d) any diversion or modification of any drainage feature (natural or manmade) within the Project Area that is not substantially in accordance with the Plan, without the approval of the Corps and the parties; (e) storing, releasing, discharging or depositing of any hazardous, dangerous or toxic waste or substance as now or hereafter defined by applicable law or regulation; (f) burning (or any use of fire), discharging of firearms, composting activities or storing of vehicles of any kind; (h) any use in violation of any applicable law or regulation, including, without limitation, dumping or littering. For the purposes of this Agreement, the parties can and should contact the Corps through the Chief of the Regulatory Branch, United States Army Corps of Engineers, Seattle District, P.O. Box 3755, Seattle, Washington 981244-3755, using Corps File Reference No. 200500505.

3) City Light's Use of the Project Area. City Light, and its successors and assigns, shall have the right to use the Project Area for any use (1) that is consistent with the Mitigation Plan referenced in Section 1 above and that is not expressly prohibited in this Agreement or (2) that is expressly stated in this Agreement. Without limiting the generality of the foregoing, City Light, and its successors and assigns, expressly is allowed to operate, maintain, construct and reconstruct: (a) existing Duwamish Substation perimeter fencing and associated ground grid, duct banks, overhead and underground power transmission and distribution facilities; (b) future Duwamish Substation perimeter fencing and associated ground grid and duct banks at the locations indicated on Exhibit "B" ( the "Survey Map") which is attached hereto and incorporated herein by this reference; and (c) future overhead and underground power transmission and distribution facilities located in "upland area" indicated on the Survey Map; in, on, over and under the Project Area. City Light shall have the right to limb, prune, trim, top, cut or remove by physical, mechanical or other nonprohibited means vegetation that exists in the Project Area within 30 feet of the lowest power lines, interferes with City Light's power transmission or distribution facilities, inhibits City Light access to its towers, or obstructs the view through the perimeter fence from inside the Duwamish Substation (except for ground cover in the 12 foot copper ground grid area if it does not exceed one foot in height above a plane at the base of the fence, and vegetation planted in an area 12 22 feet from the fenceline if it does not exceed 4 feet in height above a plane at the base of the fence), if FFD does not undertake these activities upon notification by City Light as provided in this Agreement. Without limiting the generality of the foregoing, the following City Light activities are expressly allowed in the Project Area. The timeframes and locations stated below and in Exhibit B for these activities are likely but not precise; as provided in Section 4 below, FFD will replace or repair plant damage within a reasonable time.

3.1 Install new fence in approximately the same location as the existing fence along south and east sides of substation, to meet security requirements, likely by the end of 2008. Construction access to the Project Area is allowed.

3.2 Install subsurface copper ground grid within approximately 12 feet of fence line, likely by the end of 2007. Construction access to the Project Area is allowed.

3.3 Install new underground duct bank (trench to contain electrical facilities) in one of the two locations identified in the survey, likely within the next 6-10 years. Construction access to the Project Area is allowed, and temporary construction zones are expected to be located on either side of the duct bank in the areas indicated in the Survey Map.

3.4 Maintain facilities, requiring truck access on upland area to towers and transmission lines as needed, but expected to be approximately three times each 10-15 years. City Light personnel will also walk the Project Area as necessary to operate the electric utility, but will attempt to minimize disruption to the environmental restoration.

3.5 Manage vegetation on five-year plan, which may be foregone if FFD's site maintenance plan fully meets City Light's objective of protecting towers and transmission lines.

3.6 For emergency purposes, City Light may access its transmission and distribution lines, duct bank, fences, grid, towers and facilities as deemed necessary.

4) FFD's Use and Maintenance of the Project Area.

4.1 Implementation. FFD, and its successors and assigns, is hereby allowed to construct the Project and plant vegetation substantially in accordance with the Mitigation Plan. Unless otherwise agreed by the parties, if initial Project construction is not substantially completed within five (5) years from the date of this Agreement, FFD shall be deemed to have abandoned the Project, all rights, privileges and authority granted herein shall terminate, and City Light shall reimburse FFD ONE HUNDRED THOUSAND Dollars ($100,000.00) less any costs incurred by City Light to restore the Project Area to its condition on the date of this Agreement. For the purposes of this section, "substantially completed" shall mean having accomplished the significant initial phase of grading, planting, shoreline modifications and directly related scopes of work from the Plan, exclusive of monitoring.

4.2 Maintenance. FFD shall maintain, in good condition consistent with the purpose of the Project and with the Mitigation Plan, all vegetation, grading features and habitat structures constructed or placed by or for FFD within the Project Area. If as a result of the Project, vegetation in the Project Area exists within 30 feet of the lowest power lines, interferes with City Light's power transmission and distribution facilities, inhibits City Light access to its towers, or obstructs the view through the perimeter fence from inside the Duwamish Substation (except for ground cover in the 12 foot copper ground grid area if it does not exceed one foot in height above a plane at the base of the fence, and vegetation planted in an area 12 22 feet from the fenceline if it does not exceed 4 feet in height above a plane at the base of the fence), City Light shall have the right to remove by nonprohibited means or cut such vegetation only to the extent necessary to remove the interference or obstruction, after giving notice to FFD as provided in this Agreement and at the expense of FFD. If in the course of operating, maintaining, constructing or reconstructing existing and future Duwamish Substation facilities throughout the Project Area consistent with this Agreement, City Light, or its successors and assigns, damages or removes any plants, City Light shall give notice to FFD as provided in this Agreement, and FFD shall replace or repair such plant damage within a reasonable time. City Light shall not be liable for damage to the vegetation as a result of City Light's actions that are consistent with this Agreement.

4.3 Notice. In the exercise of its rights and except in the case of an emergency, City Light shall give FFD fifteen (15) days written notice prior to limbing, pruning, trimming, topping, cutting or removing vegetation and shall give FFD thirty (30) days written notice before the start of planned construction work that will alter the Project Area. When City Light has caused damage to the Project Area due to emergency or other entry, City Light shall give written notice to FFD within five (5) days of causing the damage or as soon as practicable if emergency prevents more prompt notice. In each case, written notice shall be in the form of electronic mail (email) communication. Notice to City Light shall be given to the Customer Service Energy Delivery Officer, Seattle City Light. Notice to FFD shall be given to the Director of the Fleets and Facilities Department. A party may change the party's person and address for receipt of notice by providing written notice to the other party. Between the effective date of this Agreement and December 31, 2016, FFD shall provide written notice to the Corps within a reasonable time (for example, no greater than two months) after it is notified by City Light of planned construction that will alter the Project Area or is notified that City Light has caused damage to the Project Area. In each such case, within a reasonable time after FFD has completed its actions in response to the City Light construction or damage, FFD shall provide a written report to the Corps explaining FFD's response, including any necessary replacement or repair of plant damage. In addition to the notice obligations of Section 4.3, there remains an ongoing notice and agreement obligation as specified in Section 2 for activities not allowed by this Agreement which would alter the project area so as to cause adverse environmental impact to, or reduce the environmental benefit of, the Project.

4.4 Safety. FFD shall, at its sole cost and expense, protect all poles or towers located in the Project Area from potential damage resulting from construction or operation of the Project in a manner approved by the Superintendent of Seattle City Light, and consistent with the Plan. FFD shall also, at its sole cost and expense, install signs or other devices deemed necessary by the Superintendent of Seattle City Light and stated in the Plan, to warn against potential hazards.

5) Fund Responsibility. City Light and FFD will cooperate to defend the City against any claims brought in connection with the Project or use of the Project Area under this Agreement. The City of Seattle General Fund will reimburse and make the City Light Fund whole against any and all claims, demands, suits, and judgments, including attorneys' fees and other costs of defense thereof, for injury to persons, death, or property damage that are caused by, arise out of or are related to FFD's acts or omissions with respect to the Project Area or this Agreement. The City Light Fund will reimburse and make the City of Seattle General Fund whole against any and all claims, demands, suits, and judgments, including attorneys' fees and other costs of defense thereof, for injury to persons, death, or property damage that are caused by, arise out of or are related to City Light's acts or omissions with respect to the Project Area or this Agreement.

6) Control of Public Access. Nothing in this Agreement shall be construed to grant access by members of the public to any portion of the Project Area.

7) Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns and shall be considered a real property covenant that runs with the land.

8) Notice of Possible Change in Jurisdictional Limits. City Light and FFD acknowledge that the Project Area may eventually be annexed to the City of Seattle. When such annexation occurs, City of Seattle regulations will be applicable to the subsequent development of the Project Area.

9) Entire Agreement. This Agreement contains the entire agreement between the parties with regard to the matters set forth in it. Any modification to the Agreement shall be in writing and shall not take effect unless and until signed by the parties, provided, however, that no modification to Section 2 or Section 4.3 of this Agreement shall be effective without the prior written agreement of the Corps.

10) Effectiveness. This Agreement is contingent upon an ordinance of the Seattle City Council taking effect that authorizes this Agreement, and shall become effective immediately upon the latter of (a) the effective date of such ordinance or (b) the signature of all parties.

IN WITNESS WHEREOF, the parties have executed this Agreement this ___day of _________, 2006.

THE CITY OF SEATTLE Fleets and Facilities Department

_______________________________________

By: ____________________________________

Title: ___________________________________

THE CITY OF SEATTLE Seattle City Light Department

_______________________________________

By: ____________________________________

Title: ___________________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

I certify that I know or have satisfactory evidence that Brenda Bauer is the person who appeared before me, and said person acknowledged that she signed this Agreement, on oath stated that she was authorized to execute the Agreement and acknowledged it as the Director of the Fleets & Facilities Department of THE CITY OF SEATTLE to be the free and voluntary act of such party for the uses and purposes mentioned in the Agreement.

Dated: _____________________________

_____________________________________________

(Notary Signature)

_____________________________________________

(Print Name)

NOTARY PUBLIC in and for the State of Washington, residing

at Seattle. My appointment expires ________________.

STATE OF WASHINGTON )

) ss.

COUNTY OF ____________ )

I certify that I know or have satisfactory evidence that Jorge Carrasco is the individual who appeared before me, and said individual acknowledged that (s)he signed this Agreement, on oath stated that (s)he was authorized to execute the Agreement and acknowledged it as the superintendent of Seattle City Light to be the free and voluntary act of such party for the uses and purposes mentioned in the Agreement.

Dated: _____________________________

________________________________________________

(Notary Signature)

________________________________________________

(Print Name)

NOTARY PUBLIC in and for the State of Washington, residing

at Seattle. My appointment expires _________________.

EXHIBIT "A"

Project Area -

Exhibit A-1 Project Area Description (Professional Land Surveyor stamped, 10/11/06)

Exhibit A-2 Project Area Diagram (Joint Training Facility, Off-Site Mitigation Project CH2M Hill)

EXHIBIT "B"

"Survey Map For Illustrative Purposes Only EXHIBIT B to Property Use Agreement (AMEC, October 2006)"

City of Seattle

Agreement for Property Use and Maintenance

Page 1

EXHIBIT A-1

Project Area Description

An agreement for Property Use and Maintenance over portions of the following described parcels:

Parcel 1 (PM#230404-2-302G&H)

Tract 54, Moore's Five Acre Tracts, as recorded in Volume 9 of Plats, page 28, records of King County, Washington, lying northeasterly of West Marginal Way (Primary State Highway No. 1);

EXCEPT that portion deeded to the State of Washington under Auditor's File No. 5224977 and pursuant to the City of Seattle Ordinance No. 89535.

Parcel 2 (PM#230404-2-3021)

That portion of Tract 55, Moore's Five Acre Tracts, as recorded in Volume 9 of Plats, page 28, records of King County, Washington, lying northeasterly of West Marginal Way (Primary State Highway No. 1) described as follows:

Beginning at the point of intersection of the northerly line of Tract 55 with the easterly margin of West Marginal Way;

thence South 88 degrees 51'29" East, along said northerly line, 188.89 feet;

thence South 24 degrees 09'42" East, 129.91 feet; thence South 01 degrees 41'29" East, 6.10 feet; thence South 15 degrees 06'29" East, 246.80 feet;

thence North 88 degrees 16'15" West, 6.00 feet to the easterly margin of West Marginal Way; thence northwesterly along said easterly margin 478.57 feet to the point of beginning; EXCEPT that portion deeded to the State of Washington under Auditor's File No. 5224977 and pursuant to the City of Seattle Ordinance No. 89535.

Parcel 3 (PM#230404-2-302K)

That portion of vacated G. Praeger Road, County Road No. 76 pursuant to King County Ordinance No. 5628 recorded under King County Recording No. 8110120538, lying adjacent to Tract 53 and Tract 54, Moore's Five Acre Tracts, as recorded in Volume 9 of Plats, page 28, records of King County, Washington

Parcel 4 (PM#230404-2-302)

The south 365.00 feet of Parcel B, King County Lot Boundary Line Adjustment No. L04L0089 recorded under King County Recording No. 20041221900011, lying easterly of the existing fence as shown on the attached Plan.

All situate in the northwest quarter of Section 4, Township 23 North, Range 4 East, W.M., in King County, Washington.

Said agreement area being more particularly described as follows;

Commencing at the southwesterly corner of above described Parcel 4, said corner also being on the northeasterly margin of West Marginal Place South, thence S 42 degrees 58'11" E along said northeasterly margin, 177.87 feet to the POINT OF BEGINNING;

thence continuing S 42 degrees 58'11" E, 446.89 feet;

thence along said margin N 47 degrees 01'49" E, 18.50 feet;

thence along said margin S 42 degrees 58'11" E, 123.85 feet;

thence leaving said margin N 15 degrees 06'37" W, 108.77 feet along the easterly boundary of above described Parcel 2;

thence N 1 degrees 41'37" W, 6.10 feet along the easterly boundary of above described Parcel 2; thence N 24 degrees 09'50" W, 129.19 feet along the easterly boundary of above described Parcel 2; thence S 88 degrees 33'50" E, 91.57 feet along the southerly boundary of above described Parcel I; thence N 7 degrees 18'21" E, 73.00 feet along the easterly boundary of above described Parcel 3; thence N 10'51'21" E, 184.73 feet along the easterly boundary of above described Parcel 3; thence N 22 degrees 56'21" E, 27.43 feet along the easterly boundary of above described Parcel 3; thence N 22 degrees 56'21" E, 19.36 feet along the easterly boundary of above described Parcel 4; thence N 13 degrees 52'24" W, 374.91 feet along the easterly boundary of above described Parcel 4 to the north boundary of above described Parcel 4;

thence along the north boundary of above described Parcel 4 N 88 degrees 33'50" W, 30.84 feet; thence leaving the north boundary of above described Parcel 4 S 13'41'19" E, 384.03 feet; thence S 76 degrees 05'35" W, 458.60 feet; and the POINT OF BEGINNING.

Exhibit A-2 Project Area Diagram (Joint Training Facility, Off-Site Mitigation Project CH2M Hill)

Survey Map For Illustrative Purposes Only EXHIBIT B to Property Use Agreement (AMEC, October 2006)