AN ORDINANCE authorizing execution of an amendment to BNSF Railway Company (BNSF) Franchise Ordinance 9117 (as previously amended by Ordinances 12191, 92565 and 117477) in order to provide for the relocation of the existing tail track to a new location, and ratifying and confirming prior acts.

WHEREAS, the Washington State Department of Transportation ("WSDOT"), in consultation with the City of Seattle ("City"), is planning for the replacement of the Alaskan Way Viaduct ("AWV") on State Route 99, a nonlimited access highway located partially in the City of Seattle; and

WHEREAS, WSDOT and the City, in conjunction with the Federal Highway Administration and

King County, are working to define a reconfigured and improved State Route 99; and

WHEREAS, the City, WSDOT, and BNSF Railway Company ("BNSF") have agreed that in order to facilitate the SR 99 S. Holgate Street to S. King Street Viaduct Replacement Project, Stage 2, it is necessary that the existing tail track connected to BNSF's Seattle International Gateway Yard, more particularly described in City Ordinance Number 9117 as amended, be relocated from its current location; and

WHEREAS, relocation of the tail track is proposed to take place in two stages, first to a temporary location, then to a permanent location; and

WHEREAS, the existing BNSF tail track currently is located within City right-of-way pursuant to a franchise authorized by Ordinance 9117, and subsequently amended by Ordinances 12191, 92565 and 117477; and

WHEREAS, the proposed temporary and permanent locations for the relocated BNSF tail track also are within City right-of-way; and

WHEREAS, the City and BNSF agree that it is in their mutual interests to work together cooperatively and in good faith to review the various franchise agreements between them, including the franchise agreement amended herein and other franchise agreements across the City, and to amend or replace those various franchise agreements as the City and BNSF may agree, each in its sole discretion, upon completion of that review; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Section 2 of Ordinance 9117, as amended by Ordinances 12191, 92565 and 117477, is further amended by adding the following language as a new paragraph at the end of section 2:

BNSF Railway Company, as successor to Northern Pacific Railway Company, may, subject to the conditions set forth in Ordinance 9117, as amended, construct, lay down, maintain and operate its tail track in the temporary and permanent locations described in Exhibits A1, A2 and A3 attached hereto.

Section 2. The paragraph designated "First" of Section 3 of Ordinance 9117, as amended, is further amended as follows:

Section 3. The grant in this ordinance contained is made expressly subject to the following conditions and requirements, to wit:

First: The City of Seattle shall retain the same control of the streets, avenues and alleys in and across which said railway tracks shall be laid down, as over other streets, avenues and alleys, and shall have the right at all times, by general ordinance, to regulate the speed of locomotives and trains within the limits of the rights of way herein granted, and the maximum period of time for which locomotives, cars or trains shall be allowed to blockade travel along or across the streets embraced in this grant, or intersecting streets, and shall have such further control and police powers over such right of way as the City Charter and State laws permit. And said city reserves to itself and its grantees the right to carry all water mains, sewer mains, gas pipes, conduits and other public utilities underneath any and all of the tracks herein authorized, below any and all bridges herein provided for and underneath any street, avenue or other public place which may be vacated concurrently with or after the enactment of this ordinance, and the right of access to any spaces occupied by such tracks within the limits of any such street, avenue or other public place, and the right to open the ground beneath said tracks, for all purposes of construction, maintenance, repair, alteration and inspection of any such public utilities; which rights shall be exercised, however, so as to interfere as little as practicable with the use of said tracks and so as to leave the right of way occupied thereby restored to as good a condition as prior to any exercise of such rights.

Section 3. Section 4 of Ordinance 9117, as amended by Ordinances 12191, 92565 and 117477, is hereby repealed in its entirety.

Section 4. BNSF may continue to operate the existing tail track in its current location until such time as BNSF accepts and approves the relocated tail track and discontinues its operations on the existing tail track, all in accordance with the terms and conditions of the agreement reached between the Washington State Department of Transportation and BNSF for construction of the relocated tail track, at which time BNSF's right to use that portion of the City's right-of-way underlying the existing tail track for the existing tail track and all other purposes as may be granted pursuant to City Ordinance Number 9117, as amended, shall cease.

Section 5. The Director of Transportation is authorized to accept the franchise amendment from BNSF substantially in the form attached hereto as Exhibit B.

Section 6. BNSF's acceptance of this ordinance shall not be deemed a waiver of the preemptive effect of any state or federal law.

Section 7. Any act consistent with the authority of this ordinance taken after the passage of this ordinance and prior to its effective date is hereby ratified and confirmed.

Section 8. 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 _________, 2009, and signed by me in open session in authentication of its passage this _____ day of __________, 2009.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2009.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2009.

____________________________________

City Clerk

(Seal)

Exhibit A1 Plan showing proposed and temporary tail track

Exhibit A2 Tail Track Location-Permanent

Tail Track Location-Permanent

Adding a temporary track to the existing track, relating to the railroad franchise granted to the Burlington Northern Railroad Company, described in Ordinance 117477, a single track of standard gauge railway, the centerline whereof shall be as nearly as may be coincident with the centerline of the right-of-way therefore next herein below specified, and a right-of-way 15 feet in width for such track, the centerline of which shall begin near the northerly line of South Royal Brougham Way a distance of 22.5 feet more or less to a 5 degree reverse curve to the left a distance of 608 feet more or less, thence 70 feet more or less northerly to a point whereof shall be as nearly as may be coincident with the centerline of the proposed additional track as shown on attached Exhibit "A1".

Exhibit A3 Tail Track Location-Temporary

Tail Track Location-Temporary

Adding an additional track to the existing track, relating to the railroad franchise granted to the Burlington Northern Railroad Company, described in Ordinance 117477, a single track of standard gauge railway, the centerline whereof shall be as nearly as may be coincident with the centerline of the right-of-way therefore next herein below specified, and a right-of-way 15 feet in width for such track, the centerline of which shall begin near the south line of lot 2 of Block 366, as laid out on the map of Seattle Tidelands filed March 15, 1895, in the office of the Board of State Land Commissioners of the State of Washington, a distance of 3203.0 feet northerly toward the south line of King Street as shown on the attached Exhibit "A1".

Exhibit B Acceptance Document

EXHIBIT "B"

(Acceptance of Franchise Amendments)

Franchise Amendments issued pursuant to Ordinance No. ______.

I, _______________________, am the _________________________________, and am the authorized representative to accept the above-referenced Franchise Amendments on behalf of BNSF Railway Company. I certify that the Franchise Amendments and, except to the extent preempted by any state or federal law, all terms and conditions thereof are accepted by BNSF Railway Company, without qualification or reservation, and that BNSF Railway Company will comply with all such terms and conditions.

DATED this _____ day of ________________, 2009.

By

Its

Tax Payer ID#

STATE OF ______________

CITY OF ____________

ss.

I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it (as the _________________________ of BNSF Railway Company, a _____________ corporation,) to be the free and voluntary act of such corporation/individual for the uses and purposes mentioned in the instrument.

Dated this _____day of _________________________, 2009.

(Signature of Notary)

Print Name

Notary public in and for the state of ______________, residing at

My appointment expires

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