AN ORDINANCE relating to the water system of Seattle Public Utilities; declaring as surplus certain subsurface property rights in SPU's Tolt Pipeline right-of-way and authorizing the conveyance of a subsurface easement for such surplus property rights to King County for the King County Brightwater treatment facility's utility tunnel.

WHEREAS, King County plans to construct, operate and maintain a regional wastewater treatment facility, pipeline conveyance system and outfall into Puget Sound, commonly referred to as the Brightwater facility, to be located in King and south Snohomish Counties (the "Project"); and

WHEREAS, one of the Project pipelines is designed to cross the Tolt Pipeline right-of-way operated by Seattle Public Utilities ("SPU") at a depth of approximately 200 feet; and

WHEREAS, SPU has determined that this pipeline will not interfere with utility operations; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Pursuant to the provisions of RCW 35.94.040 and after public hearing, the real property interests described in the Subsurface Utility Easement, attached hereto as Attachment 1, are hereby found and declared to be no longer required for providing municipal utility service and to be surplus to the City of Seattle's needs.

Section 2. Upon receipt of fair market compensation, the Director of Seattle Public Utilities, or his designee, is hereby authorized, for and on behalf of the City, to convey to King County a Subsurface Utility Easement with respect to the real property described in Exhibit A of Attachment 1. The Director or his designee also is authorized to execute all documents necessary for such conveyance, including a Subsurface Utility Easement substantially in the form of Attachment 1.

Section 3. Any act pursuant to the authority of this ordinance, and taken after its passage, is hereby ratified and confirmed.

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

Passed by the City Council the ____ day of _________, 2007, and signed by me in open session in authentication of its passage this _____ day of __________, 2007.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2007.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2007.

____________________________________

City Clerk

(Seal)

Attachment 1: Subsurface Utility Easement

Teri Hallauer/TH

SPU KC Brightwater Subsurface Easement ORD

March 22, 2007

Version #3

Form Last Revised on December 16, 2006 1

RECORDING REQUESTED BY AND

WHEN RECORDED RETURN TO:

KING COUNTY

WASTEWATER TREATMENT DIVISION

MAILSTOP: KSC-NR-0503

201 SOUTH JACKSON STREET, SUITE 503

SEATTLE, WA 98104-3855

Document Title: Subsurface Utility Easement

Grantor(s): City of Seattle

Grantee: King County

Abbreviated Legal Description: EASEMENT UNDER PORTION OF LOTS 23-24, BLK. 8, AND LOTS 19, 20, 24 AND 25, BLK. 9, FIRST ADDITION TO LAKE FOREST PARK, VOL. 20, PG. 82, SECTION 3, TWP. 26N, RNG. 4E, NW QTR. SW QTR.

Additional Legal Description is on Page: Exhibit "A"

Assessor's Tax Parcel Number(s): 4022902996

R/W No. 5-6

SUBSURFACE UTILITY EASEMENT

WHEREAS, King County ("Grantee") is a political subdivision of the State of Washington and is authorized by Chapter 8.12 RCW, RCW 35.58.320, 35.58.200 and 36.56.010, K.C.C. 28.01.030 and 28.81.010 and Ordinance 10531 to acquire and condemn real property for public use for sewage treatment and water pollution abatement facilities; and

WHEREAS, Grantee plans to construct, operate and maintain a regional wastewater treatment facility, conveyance system and outfall, commonly referred to as the Brightwater facility to be located in King and south Snohomish Counties (the "Project"); and

WHEREAS, in order to operate the Project it is necessary for Grantee to acquire perpetual exclusive subsurface easements granting Grantee and its successors and assigns the right to install, construct, own, operate, maintain and repair underground pipelines, pump stations and related equipment, appurtenances, utilities and facilities to provide for the conveyance of sewage to the Project and the conveyance of treated wastewater to outfalls located in Puget Sound.

NOW, THEREFORE, in consideration of the mutual covenants and agreement hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Grant of Subsurface Utility Easement. City of Seattle, a municipal corporation ("Grantor"), for and in consideration of Ten Dollars ($10.00) and other valuable consideration in hand paid and under threat of condemnation, conveys and grants to King County, a political subdivision of the State of Washington, its successors and assigns ("Grantee"), an exclusive, perpetual subsurface easement (the "Easement") under the surface of and through that portion of the real property more particularly described in Exhibit "A" attached hereto and by this reference incorporated herein (the "Property").

This Easement is for the benefit of all property now owned or hereafter acquired by Grantee which constitutes a portion of the Project for all purposes necessary or incidental to the installation, construction, ownership, use, operation, maintenance, inspection, repair, replacement, renovation, improvement, removal and enhancement of one or more underground pipelines, together with any and all related vaults, meters, monitoring equipment, conduits, wires and other necessary and convenient equipment and appurtenances, including, but not limited to, all utility lines or equipment servicing said pipelines and related equipment and appurtenances or located within the Easement Area (collectively, the "Easement Improvements"). The rights, title, privileges and authority hereby granted shall continue and be in force until such time as the Grantee, its successors and assigns shall permanently remove all said Easement Improvements from said lands or shall permanently abandon said

The rights, title, privileges and authority hereby granted shall continue and be in force until such time as the Grantee, its successors and assigns shall permanently remove all said Easement Improvements from said lands or shall permanently abandon said Easement Improvements, at which time all such rights, title, privileges and authority hereby granted shall terminate.

Consideration Paid. The purchase price for this Easement, which is being granted and conveyed by Grantor to Grantee under threat of condemnation, is Five Thousand and NO/100 Dollars ($5,000.00). The consideration shall be paid by Grantee from the King County Water Quality Fund.

Purpose of Easement. Grantee shall have the right to use the Easement Area for all purposes necessary or incidental to Grantee's installation, construction, ownership, use, operation, maintenance, inspection, repair, replacement, renovation, improvement, removal and enhancement of underground pipelines and related Easement Improvements, including, but not limited to, the right to install, construct, operate, maintain, modify, repair, replace, improve, remove and use said pipelines, pipeline supports and all utility lines or wires within said Easement Area for any related uses as Grantee may now or hereafter deem appropriate, including the addition, removal or replacement of same at Grantee's election, either in whole or in part with either like or different size pipe, and the installation of additional pipelines, utilities and other facilities and equipment now or hereafter associated with the Project within the Easement Area. All Easement Improvements of any kind that are now or hereafter acquired, constructed or installed within the Easement Area shall be and shall at all times remain the property and responsibility of Grantee.

Grantor's Use of Property. Grantor represents that it is the owner of the Property and has the authority to enter into and perform its obligations under this Easement. Grantor reserves all other rights to use the Property, so long as such use does not unreasonably interfere with the rights granted Grantee under this Easement and do not obstruct or endanger the usefulness of any Easement Improvements now or hereafter maintained by Grantee in the Easement Area. Prior to any construction work or any other activity by Grantor that requires use of the subsurface of the Property within a distance of twenty (20) feet from the upper limit of the Easement Area, which is approximately 240 feet below the present surface elevation of the Property, Grantor shall notify Grantee in writing and shall provide Grantee with a copy of all plans and specifications for such proposed construction activity for review at least thirty (30) days prior to the commencement of such construction. Grantor shall not commence such construction, work or activity unless and until it has received Grantee's prior written consent that the Grantor's proposed construction, work or activity will not interfere with the Grantee's rights under this Easement and such consent shall not be unreasonably withheld, conditioned or delayed. Grantee's review and approval of Grantor's plans and specifications shall be strictly limited to the facilities and/or excavation shown on the plans and specifications submitted to Grantee and shall in no event constitute or be construed as a certification of the adequacy or sufficiency of Grantor's plans and specifications nor whether Grantor's construction, work or activity complies with other applicable laws, building codes and other governmental rules and regulations.

Grantee's Use of Easement Area. Grantee represents and warrants that the normal operation of the Easement Improvements for their intended purposes within the Easement Area will not be audible from the surface of the Property, cause vibrations of the Property that will be felt by Grantor, its successors, assigns, tenants or subtenants on the surface of the Property, nor cause any disturbance, earth movement or other change(s) to the areas above the Easement Area. Grantee may implement, at its expense, a settlement-monitoring program during construction of the Easement Improvements (which may include a survey of the condition of the Property and improvements prior to construction of Easement Improvements).

Indemnity. Grantee shall protect, defend, indemnify and hold harmless Grantee, its officials, employees and successors from and against any and all costs (including attorneys' fees and costs), claims, demands, judgments, damages, or liability of any kind, including personal injury or damages to property, which are caused by or in any way result from any negligent acts, omissions or willful misconduct, or any breach of this Agreement by Grantee in the installation, construction or use of the Easement Improvements and/or the Easement and Grantee shall repair any damage to the surface and/or improvements located on the Property resulting from subsidence, settling, or earth movement caused by Grantee in the installation, construction or use of the Easement Improvements; provided, however, that Grantee shall not be liable to Grantor for any loss, damage or liability resulting from the sole negligence or willful act or omission of Grantor(s), its heirs, legal representatives, successors or assigns, or the concurrent negligence of Grantor(s), its heirs, legal representatives, successors or assigns to the extent of such concurrent negligence. Grantor specifically agrees that its obligations under this indemnity section extend to any claim, demand, or cause of action brought by, on behalf of, any of its employees or agents. For this purpose, Grantee, by mutual negotiation, hereby waives, with respect to Grantor only, any immunity that would otherwise be available against such claims under the industrial insurance provisions of Title 51 of the Revised Code of Washington. In the event that either party to this easement brings any action to enforce or interpret the provisions of this section, then the prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs.

Notices. Any notices required or permitted under this Easement shall be personally delivered or sent by certified mail, return receipt requested and shall be deemed given three (3) days following the date when mailed or one (1) business day following personal delivery. All notices shall be sent to the following addresses:

To Grantee: King County

Supervisor of Right-of-Way and Permitting Section

Wastewater Treatment Division

Mailstop: KSC-NR-0503

201 South Jackson Street, Suite 503

Seattle, WA 98104-3855

To Grantor: City of Seattle

Attn: Manager of Real Estate Services

Seattle Public Utilities

PO Box 34018

Seattle, WA 98124

Either party may change the address to which notice is sent by notice to the other party.

Miscellaneous Provisions

(a) Binding Effect. This Easement is appurtenant to and shall run with all real property and real property interests and easements now owned or hereafter acquired by Grantee as part of the Project, which Grantor acknowledges will include underground pipelines, pump stations to and from the Project treatment facility and related facilities operated by Grantee for sewage treatment and water pollution abatement facility purposes and shall inure to the benefit of Grantee, its successors and assigns and shall be binding upon the Property and Grantor, and its heirs, legal, representatives, successors and assigns.

(b) Construction. All of the recitals set forth above are incorporated into this Easement as though fully set forth herein. The headings contained in this Easement are for convenience of reference purposes only and shall not in any way affect the meaning or interpretation hereof, nor serve as evidence of the intention of the parties hereto. Whenever the context hereof shall so require the singular shall include the plural.

(c) Access to Property Surface. Grantor grants Grantee a right of entry onto the surface of the Property during normal business hours and following notice, as described herein prior to, during, and up to one year after the commencement of construction of the Easement Improvements to enable Grantee to undertake a visual inspection of the Property surface and improvements and/or install minimally invasive monitoring equipment. For routine, non-emergency access, Grantee shall provide Grantor with at least fourteen (14) calendar days notice of its intent to access the property surface as described herein. If there is an imminent risk of loss of life, health or property then Grantee may access the property surface, without prior notice to Grantor, and shall notify Grantor as soon as reasonably possible after discovery of the imminent risk.

(c) Entire Agreement. This Easement sets forth the entire agreement of the parties as to the subject matter hereof and supersedes all prior discussions and understandings between them. This Easement may not be amended, except by an instrument in writing signed by a duly authorized officer or representative of each party hereto.

(d) Severability. In case any one or more of the provisions contained in this Easement 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 Easement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

(e) Waivers. No waiver of any right under this Easement shall be effective unless contained in a writing signed by a duly authorized officer or representative of the party sought to be charged with the waiver and no waiver of any right arising from any breach or failure to perform shall be deemed to be a waiver of any future right or any other right arising under this Easement.

(f) Governing Law. This Easement shall be governed by and construed and enforced in accordance with the laws of the State of Washington.

Dated this ___ day of ____________________, .

City of Seattle

Chuck Clarke, Director of Seattle Public Utilities

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

I certify that I know or have satisfactory evidence that CHUCK CLARKE is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument and acknowledged it as the DIRECTOR, SEATTLE PUBLIC UTILITIES, of the City of Seattle, a municipal corporation of the State of Washington, to be the free an voluntary act of such party for the uses and purposes mentioned in this instrument.

Dated:

Notary (print name)

Notary Public in and for the State of Washington,

residing at

My Appointment expires

Attachment 1

Easement to King County

SPU King County Brightwater Subsurface Easement

Page 1 of 4

Exhibit A to Attachment 1 Easement to King County SPU King County Brightwater Subsurface Easement

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