ORDINANCE _________________

AN ORDINANCE granting Hammer Company and Clise, Inc. permission to maintain and operate a pedestrian skybridge over the alley between 5th Avenue and 6th Avenue, south of Lenora Street, for a seven-year term; specifying the conditions under which this permit is granted; providing for acceptance of the permit and conditions; and ratifying and confirming certain prior acts.

WHEREAS, by Ordinance 104686, the City granted United Properties permission to construct, maintain and operate a pedestrian skybridge over the alley between 5th Avenue and 6th Avenue, south of Lenora Street; and

WHEREAS, the conditions of Ordinance 104686 were amended by Ordinance 121855 and Resolutions 26855, 27984, 29227, and 30372; and

WHEREAS, Resolution 26855 transferred the permission authorized by Ordinance 104686 to maintain and operate the pedestrian skybridge to Hammer Company and Clise, Inc.; and

WHEREAS, the permission authorized by Ordinance 104686 was renewed for two successive 10-year terms by Resolutions 26855 and 27823 and terminated on June 30, 2005; and

WHEREAS, Hammer Company and Clise, Inc. has submitted an application to the Seattle Department of Transportation (SDOT) Director to continue maintaining and operating the pedestrian skybridge and paid annual fees up to June 2009; and

WHEREAS, Hammer Company and Clise, Inc. has satisfied all terms of the original authorizing ordinance, paid annual fees up to June 2009, and as required by Chapter 15.64 Seattle Municipal Code (SMC), has submitted the required information; and

WHEREAS, SDOT is evaluating the City's skybridge term permit policies and granting a term permit for less than ten years is consistent with SDOT's evaluation time frame while allowing the skybridge to come into permit compliance; and

WHEREAS, the SDOT Director (Director) recommends that the term permit be approved subject to the terms identified in this ordinance; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Permission. Subject to the terms of this ordinance, permission is granted to Hammer Company and Clise, Inc. (Permittee) and its successors and assigns, to maintain and operate a pedestrian skybridge and existing private utilities (skybridge) over the alley between 5th Avenue and 6th Avenue, south of Lenora Street, in Block 15, Heir's of Sarah A. Bell's Addition to the City of Seattle, between the properties known as King County parcel numbers 0659000905 and 0659000930, for the purpose of providing pedestrian travel and private utility connections over the alley.

Section 2. Term. The permission granted to the Permittee and its successors and assigns, shall be for a term of seven years starting July 1, 2005, and ending at 11:59 p.m. on June 30, 2012. The total term of the permission as originally granted shall not exceed seven years, subject to the right of the City of Seattle (City) to terminate the permit as provided for in Section 4, require removal as provided for in Section 5, and revise by ordinance any of the conditions of this ordinance. The Permittee shall submit a complete application for a new skybridge ordinance. Failure to obtain a new skybridge ordinance or remove the skybridge prior to the expiration of the term may be enforced as provided for in Chapter 15.90 SMC.

Section 3. Protection of utilities. The permission granted is subject to the Permittee bearing the expense of any protection, support or relocation of existing utilities deemed necessary by the owners of the utilities and the Permittee being responsible for any subsequent damage to the utilities due to the construction, repair, reconstruction, maintenance, or operation of the skybridge.

Section 4. Removal for public use or for cause. The permission granted is subject to use of the street right-of-way by the City and the public for travel, utility purposes, and other street uses. The City expressly reserves the right to require the Permittee to remove the skybridge at Permittee's sole cost and expense in the event that:

(a) the City Council determines by ordinance that the space occupied by the skybridge is necessary for any public use or benefit or that the skybridge interferes with any public use or benefit; or

(b) the Director determines that any term or condition of this ordinance has been violated and the violation has not been corrected by the Permittee by the compliance date after written request by the City.

A City Council determination that the space is needed for or interferes with a public use or benefit shall be conclusive and final without any right of the Permittee to resort to the courts to adjudicate the matter.

Section 5. Removal requirements. If the permission granted reaches its termination in seven years and an application for a new permit is not granted or if the City orders removal of the skybridge pursuant to the terms of this ordinance, then within 90 days after the expiration or termination, or prior to the date stated in an Order to Remove, the Permittee shall, at its own expense, remove the skybridge and replace all portions of the street right-of-way that may have been disturbed for any part of the skybridge in as good condition for public use as they were prior to construction of the skybridge and in at least as good condition in all respects as the abutting portions of the right-of-way. The Director shall then issue a certificate discharging the Permittee, or its successor or assign, from responsibility under this ordinance for occurrences after the discharge date.

Section 6. Repair, reconstruction, readjustment or relocation. The Permittee shall not reconstruct, relocate, readjust, or repair the skybridge except under the supervision of the Director in strict accordance with plans and specifications approved by the Director. The Director may, in the Director's judgment, order the skybridge reconstructed, relocated, readjusted, or repaired at the Permittee's own cost and expense because of the deterioration or unsafe condition of the skybridge or any part thereof or installation thereon, grade separations, the installation, construction, reconstruction, maintenance, operation, or repair of any municipally-owned public utilities, or for any other cause.

Section 7. Failure to correct unsafe condition. After notice to the Permittee and failure of the Permittee to correct any unsafe conditions within the time stated in the notice, the Director may order that the skybridge be closed or removed at the Permittee's expense if the Director deems that it has become unsafe or creates a risk of injury to the public. If there is an immediate threat to the health or safety of the public, a notice to correct is not required.

Section 8. Continuing obligation to remove and restore. Notwithstanding termination or expiration of the permission granted, or closure or removal of the skybridge, the Permittee shall remain bound by its obligation under this ordinance until:

(a) the skybridge and all its equipment and property are removed from the street right-of-way;

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

(c) the Director certifies that the Permittee has discharged its obligations under this ordinance.

Upon prior notice to the Permittee and entry of written findings that it is in the public interest, the Director may, in the Director's sole discretion, conditionally or absolutely excuse the Permittee from compliance with all or any of the Permittee's obligations to remove the skybridge and its property and to restore any disturbed areas.

Section 9. Release, hold harmless, indemnification, and duty to defend. The skybridge shall remain the exclusive responsibility of the Permittee, and the Permittee agrees to maintain the skybridge in good and safe condition. The Permittee, by accepting of the terms of this ordinance and the permission granted, releases the City from any and all claims resulting from damage or loss to its own property and covenants and agrees for itself, its successors and assigns, with the City to at all times protect and save harmless the City from all claims, actions, suits, liability, loss, costs, expense, or damages of every kind and description, excepting only damages that may result from the sole negligence of the City, that may accrue to, or be suffered by, any person or persons and/or property or properties, including without limitation, damage or injury to the Permittee, its officers, agents, employees, contractors, invitees, tenants and tenants' invitees, licensees or its successors and assigns, by reason of the construction, maintenance, operation or use of the skybridge, or any portion thereof, or by reason of anything that has been done or may at any time be done by the Permittee, its successors or assigns by reason of this ordinance or by reason of the Permittee, its successors or assigns failing or refusing to strictly comply with each and every provision of this ordinance.

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

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

(b) the Permittee, its agents, contractors, employees, or its successors or assigns;

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

Section 10. Insurance. For as long as the Permittee, its successors or assigns, shall exercise any permission granted by this ordinance and until the skybridge is entirely removed from its location as described in Section 1 or until discharged by order of the Director as provided in Section 5, the Permittee shall obtain and maintain in full force and effect, at its own expense, insurance that protects the City from claims and risks of loss from perils that can be insured against under commercial general liability (CGL) insurance policies in conjunction with:

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

(b) Permittee's activity upon, or the use or occupation of the alley right-of-way between 5th Avenue and 6th Avenue, the area described in Section 1; and

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

Minimum insurance requirements are CGL insurance based on the Insurance Services Office (ISO) form CG 00 01 or equivalent. The City requires insurance coverage to be placed with an insurer admitted and licensed to conduct business in Washington State or with a surplus lines carrier pursuant to Chapter 48.15 RCW, except that if it is infeasible to obtain coverage with a required insurer, the City may approve an alternative insurer.

Minimum limits of liability shall be $2,000,000 each occurrence combined single limit bodily injury and property damage, with $4,000,000 annual aggregate. Coverage shall name the "City of Seattle, its elected and appointed officers, officials, employees and agents" as additional insureds for primary and non-contributory limits of liability subject to a Separation of Insureds clause.

Permittee shall provide to the City, or cause to be provided, certification of insurance coverage consisting of the CGL declarations page, schedule of forms and endorsements, and blanket or additional insured policy provision per the ISO CG 20 12 or equivalent. The insurance coverage certification shall be delivered or sent to the Director or to the department and address as the Director may specify, from time to time, in writing.

Should the Permittee be self-insured, a letter of certification from the Corporate Risk Manager or appropriate Finance Officer may be submitted in lieu of the insurance coverage certification required by this ordinance, if approved in writing by the City Risk Manager. The letter must provide all information required by the City Risk Manager and document, to the satisfaction of the City Risk Manager, that self-insurance equivalent to the insurance requirements of this ordinance is in force. After a selfinsurance certification is approved, the City may subsequently from time to time require updated or additional information. The approved selfinsured Permittee must provide 30 days notice of any cancellation or material adverse financial condition of its self-insurance program. The City may at any time revoke approval of self-insurance and require the Permittee to obtain and maintain insurance as specified in this ordinance.

Section 11. Contractor insurance. The Permittee shall contractually require that all of its contractors performing construction work on any premises contemplated by this permit name the "City of Seattle, its elected and appointed officers, officials, employees and agents" as an additional insureds for primary and non-contributory limits of liability on all CGL, Automobile and Pollution liability insurance and/or self-insurance. Permittee shall also include in all contract documents with its contractors a third party beneficiary provision extending construction indemnities and warranties granted to Permittee to the City as well.

Section 12. Performance bond. Within 60 days after the effective date of this ordinance, the Permittee shall deliver to the Director for filing with the City Clerk a sufficient bond in the sum of $35,000.00 executed by a surety company authorized and qualified to do business in the State of Washington, conditioned that the Permittee will comply with each and every provision of this ordinance and with each and every order of the Director issued under this ordinance. The Permittee shall ensure that the bond shall remain in effect until the skybridge is entirely removed from its location as described in Section 1, or until the Permittee is discharged by order of the Director as provided in Section 5. An irrevocable letter of credit approved by the City Risk Manager may be substituted for the bond.

Section 13. Adjustment of insurance and bond requirements. The Director, in consultation with the City Risk Manager, may adjust minimum levels of liability insurance and surety bond requirements during the term of this permission. If the Director and Risk Manager determine that an adjustment is necessary to fully protect the interests of the City, the Director shall notify the Permittee of the new requirements in writing. Upon receipt, the Permittee shall within 60 days, provide proof of the adjusted insurance and surety bond levels to the Director.

Section 14. Consent for and conditions of assignment or transfer. The right, privilege and authority granted shall not be assignable or transferable by operation of law; nor shall the Permittee, its successors or assigns transfer, assign, mortgage, pledge, or encumber the same without the Director's consent, which the Director shall not unreasonably refuse. The Director may approve assignment and/or transferal of the permit to a successor entity in the case of a change of name and/or ownership if the successor or assignee has demonstrated its acceptance of all of the terms of the permission provided by this ordinance.

Section 15. Inspection fees. The Permittee, its successors and assigns shall, as provided by Chapter 15.76 SMC, pay to the City the amounts charged by the City as costs to inspect the skybridge during construction, reconstruction, repair, annual structural inspections, and at other times deemed necessary to ensure the safety of the skybridge.

Section 16. Inspection report. The Permittee, its successors and assigns shall submit to SDOT Roadway Structures Division an inspection report that:

(a) describes the physical dimensions and condition of all load bearing elements,

(b) describes any damage or possible repairs to any element of the skybridge,

(c) prioritizes all repairs and establishes a timeframe for making the repairs, and

(d) is stamped by a professional structural engineer licensed in the State of Washington.

The report shall be submitted within 60 days after the effective date of this ordinance. In the event of a natural disaster or other event that may have damaged the skybridge, the report shall be submitted by the date established by the Director.

Section 17. Annual fee. Permittee shall promptly pay to the City, upon statements or invoices issued by the Director, an annual fee for the privileges granted by this ordinance in the amount of $2,592.00, beginning on July 1, 2009, and adjusted annually thereafter. Adjustments to the annual fee shall be made in accordance with a term permit fee schedule ordinance adopted by the City Council and may be made every year. In the absence of a schedule, the Director may only increase or decrease the previous year's fee to reflect any inflationary changes so as to charge the fee in constant dollar terms. This adjustment will be calculated by adjusting the previous year's fee by the percentage change between the two most recent year-end values available of the Consumer Price Index for the Seattle-Tacoma-Bremerton Area, All Urban Consumers, All Products, Not Seasonally Adjusted. All payments shall be made to the City Finance Director for credit to the Transportation Operating Fund.

Section 18. Non-discrimination. The Permittee shall comply with the City's laws prohibiting discrimination in employment and contracting including, the Seattle Fair Employment Practices Ordinance, Chapter 14.04 SMC, and the Fair Contracting Practices code, Chapter 14.10 SMC.

Section 19. Acceptance of terms. The Permittee shall deliver to the Director its written signed acceptance of the terms of this ordinance within 60 days after the effective date of this ordinance. The Director shall file the written acceptance with the City Clerk. If acceptance is not received within that 60-day period, the privileges conferred by this ordinance shall be deemed declined or abandoned and the permission granted deemed lapsed and forfeited.

Section 20. Ratify and confirm. Any act taken by the City or the Permittee pursuant to the authority and in compliance with the conditions of this ordinance, but prior to the effective date, is hereby ratified and confirmed.

Section 21. This ordinance shall take effect and be in force 30 days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________________, 2010, and signed by me in open session in authentication of its passage this

_____ day of ___________________, 2010.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2010.

_________________________________

Michael McGinn, Mayor

Filed by me this ____ day of __________________________, 2010.

____________________________________

City Clerk

(Seal)

Angela Steel

SDOT Hammer Co. & Clise Skybridge ORD

March 30, 2010

Version #7a

1