Item 6b PORT OF SEATTLE MEMORANDUM COMMISSION AGENDA Item No. Date of Meeting DATE: December 5, 2011 TO: Tay Yoshitani, Chief Executive Officer 6b December 13,2011 Joe McWilliams, Managing Director, Real Estate an~ Pr erty Management Tom Tanaka, Sr. Port Counsel, Legal Department Boeing/Port Settlement Agreement including Easement d Access Agreements to Portions of Former Commercial Waterway District No. 1 Property Net Proceeds to the Port: $1.5 million ACTION REQUESTED: Request Commission authorization for the Chief Executive Officer to execute a Settlement Agreement that grants the Boeing Company (Boeing) access to Wtdertake environmental cleanup, bankline corrective measures, habitat restoration, and instaiVimprove stormwater infrastructure on former Commercial Waterway District No. 1 property. In exchange, Boeing will provide $1.5 million in compensation as well as allow the Port temporary access to a portion of the Boeing Developmental Center for construction of the Terminal 117 Natural Resource Damage Habitat Restoration project. BACKGROUND: The Commercial Waterway District No. 1 of King County (CWD) was formed in the early 1900s to straighten the course of the Lower Duwamish River from Harbor Island to Turning Basin #3. The CWD owned a 500 foot swath of land through which the waterway flowed. The CWD decided to dissolve in the early 1960s and it asked the Port if it would take the District's assets. The Port agreed and the CWD transferred its interests, including the waterway basin land, to the Port in 1963. Boeing owns property abutting the east bankline of the former CWD property on either side of the South Park Bridge. This property, as well as portions of the former CWD property which it abuts, are both the subject of an Administrative Order on Consent (AOC) from the U.S. Environmental Protection Agency (EPA) and Washington State Department of Ecology (Ecology) that requires Boeing to clean up pollution in the soil/sediments as well as improve conditions along the bankline. Item 6b COMMISSION AGENDA Tay Yoshitani, Chief Executive Officer December 5, 2011 Page 2 of6 Subsequent to the AOC, Boeing entered in to a consent decree with the Elliott Bay Trustee Council (Trustees) that resolves Boeing's natural resource damage liability associated with the pollution that they are cleaning up. The consent decree specifies that Boeing will implement a habitat restoration project to restore and/or create off-channel and riparian habitats in the Lower Duwamish Waterway. Boeing would like to build this project partially on former CWO property that has been previously identified in the Lower Duwamish River Habitat Restoration Plan as Sites #18, 21 and 22. The project is designed to include removal of over-water structures, reduction of slopes, cutback of banks, softening of banks, creation of new intertidal habitat, creation of brackish marsh fringe and addition of large woody debris habitat features. Boeing is also seeking to redevelop and improve its stormwater management system. Various existing stormwater facilities and systems are located throughout the Boeing property, including a storm drain line that discharges stormwater through an outfall pipe currently located in the former CWD property. As part of the redevelopment, Boeing intends to upgrade the stormwater system by, among other things, installing new storm drain lines and outfall pipes to three new outfalls in the fomer CWO property, as well as modifying the existing outfall. By carrying out its restoration project on the former CWD property, Boeing will be precluding the Port, or any other party, from receiving natural resource damage (NRD) settlement credit for habitat improvements on that property. As compensation to the Port for that lost opportunity, the Settlement Agreement specifies that Boeing will pay the Port the sum of $1.5 million. Additional compensation to the Port includes site access rights through the Boeing Development Center to support the Terminal 117 NRD Restoration project if and when it is constructed. ACCESS AND EASEMENT AGREEMENTS: The Settlement Agreement includes four separate access and easement agreements that would be executed concurrently. They are: • Site Access Agreement (Exhibit 3). The AOC will require that Boeing, its contractors and its agents be granted access to the former CWD property to perform the necessary cleanup and bankline corrective work. The Site Access Agreement specifies terms and conditions related to schedule, cooperation, work standards and indemnification. • Habitat Restoration Easement Agreement (Exhibit 4). The Boeing Consent Decree requires Boeing to obtain site access and a perpetual conservation easement for the habitat restoration project. The Habitat Restoration Easement Agreement conveys to Boeing the transferable rights of the Port's with respect to the former CWO property needed for the Boeing habitat project. • Stormwater Outfall Easement Agreement (Exhibit 5). The Settlement Agreement includes a Stormwater Outfall Easement Agreement that will grant Boeing temporary and perpetual easements to construct, modify, maintain, monitor, replace and restore Boeing's Item 6b COMMISSION AGENDA Tay Yoshitani, Chief Executive Officer December 5, 2011 Page 3 of6 storm drain lines and outfalls in the former CWD property. The easement agreement includes an indenmity provided by Boeing to protect the Port from any liability associated with discharges from the stormwater outfalls. • Port Access through Boeing Development Center Agreement (Exhibit 6). This agreement allows the Port temporary upland access to the former CWD property through the Boeing Development Center in order to facilitate construction of the Terminal 117 NRD Restoration project. The easement will lower costs, improve safety and improve the Port's ability to manage environmental impacts during construction if the Port chooses to move forward with the project These documents may be subject to some further modification by the parties, but the content would be substantively similar to the forms presented here. STRATEGIC OBJECTIVES: This project supports the Port's strategies to "Ensure Airport and Seaport Vitality" and "Exhibit Environmental Stewardship through our Actions". • • The Settlement Agreement contributes to Seaport vitality by: o Generating revenue from previously non-revenue generating property. o Validating an emerging market for natural resource functions and ecosystem services that may be important to the Port in the future. o Improving relationships with South Park and Georgetown communities, environmental groups, regulatory agencies and the Trustees. o Reducing construction costs for Terminal 117 NRD Restoration project if/when it is constructed. The Settlement Agreement furthers Seaport goals, guiding principles and objectives related to environmental stewardship by: o Allowing Boeing to undertake important fish and wildlife habitat restoration activities on former CWD property. Habitat restoration in the Duwamish corridor . is viewed as a key component of salmon recovery efforts, among other things. The easement helps to facilitate Boeing's restoration project, which is one of several projects proposed or being contemplated for this portion of the Duwamish. Cumulatively, the Boeing project will contribute to a regionally significant complex of restored fish and wildlife habitat. o Supporting water quality improvement and river-wide pollution "source control" efforts by facilitating better stormwater management on Boeing's property. o Allowing Boeing to conduct environmental cleanup that will improve conditions for people, fish and wildlife. o Allowing Port access through the Boeing Development Center, which will lower costs, improve safety and reduce construction-related environmental impacts (if the Port chooses to construct the project). Item 6b COMMISSION AGENDA Tay Yoshitani, Chief Executive Officer December 5, 2011 Page 4 of6 o Establishing a benchmark for valuation of natural resource functions and ecosystem services. BUSINESS PLAN OBJECTIVES: • • • Capitalizing on natural resource functions and ecosystem services that are provided, or could be provided, in the former CWD property demonstrates value and creates opportunity for low performing or non-revenue generating properties. Collaboration with NRD potentially responsible parties (in this case Boeing) will help to foster a positive working relationship with the Trustees, community and others, which enhances our ability to achieve a cost-effective NRD settlement. Port access through the Boeing Development Center will significantly lower costs if the Port chooses to construct the T -117 NRD Restoration project. FINANCIAL ANALYSIS: The Port is unable to control uses on the former CWD property due to Washington State Supreme Court precedent. As such, the former CWD property has not been a source of revenue to the Port in the past. Howev~r, the former CWD property has value for habitat restoration purposes and for parties like Boeing that wish to settle their natural resource damages liability through the creation of habitat projects. The agreements with Boeing will allow the Port to obtain value for the transfer of habitat development rights to a third party and will set a precedent for future transactions that could be favorable to the Port financially. Negotiations with Boeing regarding the settlement amount were underpinned by the imperative that the Port should be compensated for the value of foregone habitat credit opportunities in the easement area. To support the negotiation and establish the range of value, the Port completed an analysis that estimated: • • • the potential number of credits that could be produced if the Port undertook its own habitat project in the easement area~ the costs to produce the credits; and, potential market value of the credits. The analysis confirmed that the settlement realizes returns from the Port's asset that could not otherwise be achieved. Bud~:etJAuthorization Summary Previous Authorizations Current request for authorization Total Authorizations, including this request Remaining budget to be authorized NA NA NA NA Item 6b COMMISSION AGENDA Tay Yoshitani, Chief Executive Officer December 5, 2011 Page 5 of 6 Source of Funds No funds are required by this transaction. This transaction will generate approximately $1.5 million in cash proceeds. Financial Analysis Summary CIP Category Pro.iect Type Risk adjusted Discount rate Key risk factors NA NA NA • Boeing has indicated that they need to authorize the Settlement Agreement and complete the financial transaction before the end of 2011 to avoid delays associated with their budgeting process. • Each of the Easement Agreements include "hold harmless" and indemnity conditions as appropriate. Project cost for analysis Business Unit (BU) Effect on business performance IRRINPV NA Seaport Division Granting of the easement will result in $1.5 million of non-operating revenue to the Seaport in 2011. NA SUSTAINABILITY AND LIFE CYCLE COSTS: • • Future costs associated with maintenance of Boeing's habitat project and stormwater infrastructure within the granted easements will be the sole responsibility of Boeing. The Settlement Agreement will not increase life cycle costs associated with Port interests in the former CWD property. From a sustainability perspective, the Settlement Agreement will promote environmental cleanup, habitat restoration, water quality improvement, and community benefits. ALTERNATIVES CONSIDERED AND THEIR IMPLICATIONS: • Alternative 1 - No Action -- do not enter into a Settlement Agreement with Boeing.{tanlJ This alternative would put our relationship with Boeing, the Trustees, the EPA, Ecology, the community and environmental groups at risk, and it would forego $1.5 million in proceeds. However, it would preserve the Port's ability to construct fish and wildlife habitat within the Item 6b COMMISSION AGENDA Tay Yoshitani, Chief Executive Officer December 5, 2011 Page 6 of6 former CWD property at this location in the future, to use either for Port liability resolution or to capitalize on NRD and mitigation markets. • Alternative 2- Partial Action. Enter into a Settlement Agreement with Boeing that includes site access for cleanup and bankline corrective actions only. This alternative would preserve our relationship with EPA and Ecology and generate environmental improvements in the former CWD property (not including habitat restoration). However, it would be damaging to our relationship with the Trustees, Boeing, the community and environmental groups, inasmuch as the Port would be perceived to be standing in the way of habitat restoration. This alternative would also forego potential environmental benefits and indemnity associated with Boeing's stormwater infrastructure in the former CWD property. ltan2J • Alternative 3 - . Execute the Settlement Agreement and related agreements in exchange for $1.5 million and access rights through the Boeing Developmental Center for construction of the Tl17 NRD Restoration project (if Port chooses to move forward with that project). This alternative fosters important relationships with Duwamish stakeholders, generates revenue from marginal property, and results in significant environmental improvements. This is the recommended alternative. OTHER DOCUMENTS ASSOCIATED WITH THIS REQUEST: The access and easement agreements that are attachments to the Settlement Agreement include map exhibits which illustrate the boundaries of the site access and habitat easement areas. The Settlement Agreement is attached to this memo. PREVIOUS COMMISSION ACTIONS OR BRIEFINGS: On July 7, 2009 the Port Commission adopted the Lower Duwamish River Habitat Restoration Plan (WRHRP), which includes identification of 31 potential habitat restoration sites. The Settlement Agreement includes portions of LDRHRP Sites 18,21 and 22. Item 6b BOEING/PORT AGREEMENT This Agreement ("Agreement" or "Port/Boeing Agreement")) is made between Port of Seattle ("Port") and The Boeing Company ("Boeing") (hereinafter the "Parties"). The effective date of the Agreement is [INSERT DATE] (the "Effective Date"). WHEREAS, the Port is the successor in interest to Commercial Waterway District No. 1 of King County, which acquired interests in certain real property located in King County, Washington, lying along and including a portion of the shoreline and submerged lands on the Lower Duwamish Waterway and generally shown on EXHIBIT 1 (the "Port Property"). WHEREAS, Boeing owns certain real property adjacent to the Port Property and generally shown on EXHIBIT 2 (the "Boeing Property"). WHEREAS, Boeing intends to complete the Duwamish Sediment Other Area ("DSOA") and Southwest Bank Corrective Measure pursuant to the Administrative Order on Consent [RCRA Docket No 1092-01-22-3008(h)], issued to Boeing in 1994 by the United States Environmental Protection Agency under RCRA Section 3008(h), as amended by 42 U.S.C. 6928(h). A portion of the DSOA and Southwest Bank Corrective Measure is to occur on the Port Property. WHEREAS, Boeing has executed a consent decree ("Consent Decree") with the United States of America (on behalf of the National Oceanic and Atmospheric Administration, the United States Department of the Interior, and the United States Fish and Wildlife Service), the State of Washington through the Washington Department of 1 Port/Boeing Agreement 12/5/11 03008..03371LEGAL22259687.1 Item 6b Ecology, the Muckleshoot Indian Tribe and the Suquamish Tribe (the "Trustees"). Pursuant to the terms of the Conseut Decree, Boeing will, among other things, implement a habitat restoration project (the "Boeing Habitat Project") to restore and/or create offchannel and riparian habitats in the Lower Duwamish Waterway in an area where they have been largely eliminated, and facilitate the Port's grant of a conservation easement to the Trustees related to the portion of the Boeing Habitat Project occurring on the Port Property. WHEREAS, as part of the redevelopment of Plant 2, Boeing is upgrading its stormwater system, including modifying existing storm drain lines/outfalls and installing new storm drain lines/outfalls. One of the storm drain lines/outfalls Boeing intends to modify is on Port Property. Three of the storm drain lines/outfalls Boeing intends to install are on Port Property. WHEREAS, the Port is considering whether to conduct a habitat restoration project ("Port Habitat Project") in the LDW adjacent to Boeing's South Park property. Access on the South Park property would facilitate completion of the Port Habitat Project. NOWt THEREFORE, IT IS AGREED: l. Site Access Agreement: The Parties will execute concurrently with this Agreement a site access agreement, attached hereto as EXHffiiT 3, under which the Port provides access to the Port Property for Boeing and its contractors and agents to perform the DSOA and Southwest Bank Corrective Measure. Port/Boeing Agreement 12/5/11 03008-03371LEGAL22259687. I 2 Item 6b 2. Habitat Restoration Easement Agreement: The Parties will execute concurrently with this Agreement a Habitat Restoration Easement Agreement, attached hereto as EXHIBIT 4, under which the Port grants to Boeing a perpetual easement to construct, maintain, monitor, replace and restore the portion of the Boeing Habitat Project located on the Port Property. 3. Declaration of Conservation Easement: The Port will execute concurrently with this Agreement a Declaration of Conservation Easement, a draft of which is attached hereto as EXHIBIT 5, under which the Port grants to the United States Department of Commerce acting through the National Oceanic and Atmospheric Administration, a conservation easement to ensure the permanent preservation of the Boeing Habitat Project located on the Port Property. 4. Stormwater Outfall Easement Agreement: The Parties will execute concurrently with this Agreement -a Stormwater Outfall Easement Agreement, attached hereto as EXHIBIT 6, under which the Port grants to Boeing temporary and perpetual easements to construct, modify, maintain, monitor, replace and restore Boeing's storm drain lines and outfalls on Port Property. 5. Port Access through the Boeing South Park Property: If the Port detennines that it will proceed with the Port Habitat Project, Boeing will allow access to the adjacent Boeing South Park Property under the general terms and conditions set forth in the draft access agreement attached hereto as EXHIBIT 7. Prior to executing the applicable access agreement, the specific terms and conditions, such as locations, times, Port/Boeing Agreement 12/5/11 03008-0337/LEGAL22259687.1 3 Item 6b and manner of access, will be negotiated in good faith by the Parties once more details are known about the Port's Port Habitat Project and access needs. 6. Release and Covenant Not to Sue: a. Mutual Release and Covenant Not to Sue: The Parties agree to release and covenant not to sue each other from and against any claims, suits, actions, causes of action, or demands, whether known or l.Ulknown, related to (i) all past and future remedial action costs, response costs, and payments to third parties (including without limitation all reasonable consultant fees and attorney fees), incurred or to be incurred in the areas addressed by or related to the DSOA and Southwest Bank Corrective Measure actions; and (ii) all past and future natural resource damage liabilities, assessment and restoration costs, and payments to the Trustees, incurred or to be incurred in the area of or related to the Boeing Habitat Project. The Parties' hold harmless and indemnity obligations as set forth in the attachments shall be unaffected by this paragraph. To the extent the Parties' hold harmless and indemnity obligations set forth in the attachments are inconsistent with this paragraph, the obligations in the attachments shall govern. b. Reservation of rights: Except for those claims, suits, actions, causes of action, or demands expressly released above in subsection 6(a), the Parties reserve all other claims, suits, actions, causes of action, or demands they may have against each other. 7. Payment to the Port: Within thirty (30) days of the Effective Date, Boeing shall pay to the Port the sum of One Million Five Hundred Thousand and Zero Port/Boeing Agreement 12/5/11 03008-0337/LEGAL22259687.1 4 Item 6b Cents ($1,500,000.00). Boeing shall make this payment to the Port by way of bank check payable to the "Port of Seattle." 8. Notice: a. Any notices or other communications under this Agreement shall be directed to the following party representatives: To the Port: Kathy Bahnick Port of Seattle P.O. Box 1209. Seattle, WA 98111 Phone: (206) 787-3128 Email: Bahnick.K @portseattle.org Thomas H. Tanaka Port of Seattle P.O. Box 1209 3600 Seattle, WA 98111 Phone: (206) 787-3007 Email: Tanaka.T@portseattle.org To Boeing: Leah Krider EHS, Boeing Law Department 2710 160m Avenue SE Bellevue, W A 98008 Phone: (425) 373-7123 Email: Leah.M.Krider@boeing.com Mark Schneider Perkins Coie LLP 1201 Third Avenue, Suite 4800 Port/Boeing Agreement 12/5/11 03008-0337/l.EGAL22259687. I 5 Item 6b Seattle, WA 98101-3099 Phone: (206) 359-8000 Email: MWSchneider@perkinscoie.com b. Any party may change the person or address to which communication may be directed by giving written notice to the representatives provided above. 9. Successor and Assigns: This Agreement shall be binding upon successors and assigns of the Parties. No assignment or delegation of the obligations to make any payment or reimbursement hereunder shall release the assigning Party without the prior written consent of the other party. Prior to entry into any contract with a third party concerning the property where the DSOA and Southwest Bank Corrective Measure and the Boeing Habitat Project will be constructed, the Port shall first provide a copy of this Agreement to the third party. 10. No Third-Part:y Beneficiaries: This Agreement is intended by the Parties for their sole and exclusive benefit. The Parties expressly do not intend to benefit any other party, and expressly do not intend to create any third-party beneficiaries to this Agreement. 11. Unenforceable Provisions: If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted, rather than voided, if possible, to achieve the intent of the Parties. If any portion of this Agreement becomes unenforceable, null, or void, the balance of this Agreement shall remain in full force and effect. 12. Governin& Law: All rights and obligations of the Parties to this Agreement will be construed and enforced in accordance with, and governed by, the laws of the State of Washington. With respect to any disagreement, dispute, controversy, or Port/Boeing Agreement 1215/11 03008-0337/LEGAL222S9687.I 6 Item 6b claim arising out of or relating to this Agreement or any interpretation of this Agreement, and solely for the purposes of this Agreement, each of the Parties irrevocably submits to the jurisdiction of the United States District Court for the Western District of Washington (unless federal jurisdictional requirements cannot be met, in which case each of the Parties irrevocably submits to the jurisdiction of the King County Superior Court). 13. Entire Agreement: This Agreement and all attachments constitute the entire agreement between the Parties. This Agreement and its attachments may not be modified or amended, except by writing signed by the Parties. 14. Execution in Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 15. Authority to Sign: Each person signing this Agreement represents and warrants that he or she is duly authorized to enter into this Agreement by the entity on whose behalf the person is signing. Accepted: Port of Seattle The Boeing Company By: _ _ _ _ _ _ _ _ _ __ By:_ _ _ _ _ _ _ _ _ __ Title: _ _ _ _ _ _ _ _ _ __ Title: _ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Port/Boeing Agreement 12/5111 03008-0337/LEGAL22259687.1 7 Item 6b Port/Boeing Agreement 12/5111 03008-0337/LEGAL22259687.I 8 Item 6b MAIN AGREEMENT EXHIBITS Item 6b 011-Z ~ w w ...... ::E !:::w 0 ~c( 0 a.. 0::: mw a.. -o::: J:(.!) ~ a.. Item 6b OJ 0 m z (j) ""0 ;;o 0 ""0 m ~ )>m G>X :;o::I: mmOJ s::-i mN Z-i -iO Item 6b Item 6b "DUWAMISH SEDIMENT AND OTHER AREA" AND SOUTHWEST BANK INTERIM MEASURE SITE ACCESS AGREEMENT This Site Access Agreement ("SAA") is made between Port of Seattle ("Port") and The Boeing Company ("Boeing") (hereinafter the "Parties"). RECITALS A. The Port is the successor in interest to Commercial Waterway District No. 1 of certain real King County, which acquired interests in certain real property located in King County, Washington, lying along and including a portion of the shoreline and submerged lands on the Lower Duwamish Waterway and generally shown on EXHIBIT A (the "Poit Property"). B. Boeing owns certain real property adjacent to the Port Property and generally shown on EXHffiiT B (the "Boeing Property"). C. Boeing intends to complete the Duwamish Sediment Other Area ("DSOA") and Southwest Bank Corrective Measure pursuant to the Administrative Order on Consent [RCRA Docket No 1092-0l-22-3008(h)] ("Order"), issued to Boeing in 1994 by the United States Environmental Protection Agency ("EPA") under RCRA Section 3008(h), as amended by 42 U.S.C. 6928(h). The approximate location of the DSOA and Southwest Bank Corrective Measure is shown on EXHIBIT C. The proposed elements for the DSOA and Southwest Bank Corrective Measure are more fully described in EXHIBIT D, and are hereinafter referred to as the "Work." A portion of the Work is to occur on the Port Property. D. The Parties have agreed to enter into this SAA to provide access to the Port Property for Boeing and its contractors and agents to perform the Work. Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 1215/11 03008-0337/LEGAL22259663 .1 1 Item 6b E. Concurrent with the Parties' entry into this SAA, Boeing and the Port are entering into a Habitat Restoration Easement Agreement, under which the Port is granting to Boeing an exclusive, perpetual easement to construct, maintain, monitor, replace and restore the portion of a habitat restoration project located on the Port Property. F. Concurrent with the Parties' entry into this SAA, Boeing and the Port are entering into a Stormwater Outfall Easement Agreement, under which the Port is granting to Boeing a non-exclusive, perpetual easement to construct, operate, maintain, repair, modify, monitor, and replace storm water drain lines and outfalls on a portion of the Port Property. In consideration of the mutual covenants and agreement herein, the Parties agree as follows: AGREEMENT The Port hereby grants to Boeing and its contractors and agents a non-exclusive license for access to the Port Property to conduct the Work. Boeing agrees that it will provide a copy of this SAA to any contractor or agent retained to assist in the Work, and that all contractors and agents must agree in writing to be bound by its terms. The time and manner of such access shall be pursuant to the terms of this SAA: 1. Time/Schedule. a. This SAA shall remain in full force and effect until the Work is completed. Boeing shall coordinate with the Port to ensure that the Work is done in a timely manner. b. Boeing and its contractors and agents shall have twenty-four (24)hour access, seven (7) days per week, 365/366 days per year to the Port Property starting on the Effective Date of this SAA. Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 12/5/ll 03008-0337ILEGAL22259663.1 2 Item 6b c. Boeing, through its contractors or agents, shall conduct the Work in accordance with the Order. 2. The Port's Cooperation with the Work; No Conflicting 3nJ Party Agreements. The Port, including its representatives, contractors, or agents, shall cooperate in the performance of the Work by Boeing, including its representatives, contractors, or agents. At all times while this Agreement remains in place, the Port shall refrain from entering into any agreements with third parties concerning the Port Property that would be detrimental to Boeing's efforts to conduct and complete the Work in a timely and diligent manner. 3. Work Standards. Boeing, through its contractors and agents, shall perform all Work consistent with the requirements mandated by the EPA, including those set forth in the Order. 4. Hold Harmless and Indemnification. 4.1 Boeing's Hold Harmless and Indemnification Agreement: Boeing shall indemnify and hold the Port harmless from and against (i) any and all claims, losses, costs, expenses, liabilities or damages (collectively, "Claims") arising out of Boeing's negligent or willful failure to perform its obligations under this Agreement, (ii) any and all Claims related to the release of hazardous substances at, on, under or from the Port Property caused by Boeing's use of the Port Property after the Effective Date of this Agreement until the Work is complete, and (iii) any and all claims or liability for bodily injury to or death of any person or loss of or damage to any property, including reasonable attorneys' fees and costs, arising out of Boeing's or its contractors', consultants', or agents' negligence or willful misconduct associated with Boeing's use of the Port Property after the Effective Date of this Agreement until the Work is complete, Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 12/5/ll 03008-0337/LEGAL22259663.1 3 Item 6b except to the extent such Claims are caused by the negligence or willful misconduct of the Port or the Port's agents, employees, contractors or invitees. 4.2 The Port's Hold Hannless and Indemnification Agreement: The Port will indemnify, defend, and hold Boeing harmless from and against (i) any and all Claims arising out of the Port's negligent or willful failure to perform its obligations under this Agreement, and (ii) any and all Claims for bodily injury to or death of any person or loss of or damage to any property, including reasonable attorneys' fees and costs, arising out of the Port's or its contractors', consultants', or agents' negligence or willful misconduct associated with the Port's use of the Port Property after the Effective Date of this Agreement until the Work is complete, except to the extent such Claims are caused by the negligence or willful misconduct on the part of Boeing, its agents, employees, contractors or invitees. 4.3 No Effect on Allocation of Responsibility for Prior Releases. This Agreement shall not be interpreted to have any effect on the Parties ' liability with respect to actions or activities that occurred prior to the Effective Date of this Agreement, including without limitation, liability for past releases of hazardous substances to the Duwamish Waterway. 5. Party Representatives. Communication under this Agreement shall be directed to the following party representatives: To the Port: Kathy Bahnick Port of Seattle P.O. Box 1209 Seattle, W A 98111 Phone: (206) 787-3128 Email: Bahnick.K @portseattle.org Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 1215/11 03008-0337/l..EGAL22259663. I 4 Item 6b Tom Tanaka Port of Seattle P.O. Box 1209 Seattle, W A 98111 Phone: (206) 787-3007 Email: tanaka.t@portseattle.org To Boeing: Mike Gleason The Boeing Company P.O. Box 3707 M/C lW-12 Seattle, WA 98124-2207 Phone: (206) 290-6576 Email: michael.j.gJeason@boeing.com Leah Krider EHS, Boeing Law Department 2710 160lh Avenue SE Bellevue, W A 98008 Phone: (425) 373-7123 Email: Leah.M.Krider@boeing.com Any party may change the person or address to which communication may be directed by giving written notice to the representatives provided above. 6. Authority to Execute. Each person executing this SAA on behalf of another person or entity represents and warrants that he or she is fully authorized to execute and deliver this SAA on behalf of such person or entity. The Parties each represent and warrant to each other that no consent of any person or entity not a party to this SAA is necessary in order for this SAA to be fully and completely binding upon the Parties. Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 12/5/ll 03008-0337/I..EGAL222S9663.1 5 Item 6b 7. Entire Agreement. Except for the Boeing/Port Agreement, this SAA contains the entire understanding between the Parties related to the Work and supersedes any prior or contemporaneous understandings and agreements between the Parties with respect to the Work. There are no other representations, agreements, arrangements or understandings, verbal or written, between and among the parties hereto, or any of them, relating to the Work. No amendment or supplement to this SAA shall be valid or effective unless made in writing and executed by the Parties hereto. 8. No Waiver of Remedy for Breach. A failure by any party to this SAA to enforce a term or condition of this SAA does not constitute a waiver of that party's remedies for any breach of this SAA. Waiver by a party to this SAA of one or more terms or conditions of this SAA does not constitute a waiver of any other terms or conditions of this SAA. 9. Applicable Law. This SAA shall be governed by the laws of the State of Washington, exclusive of its choice of law rules. Venue for all disputes shall be King County, Washington. 10. Successors and Assigns. This SAA shall inure to the benefit of and be binding upon the Parties' respective successors and assigns. 11. Effective Date. The Effective Date of this SAA is the first date upon which the SAA has been executed by all Parties. 12. Miscellaneous. This SAA may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original document, but all of which together shall constitute one and the same document. Neither Party shall record this SAA, nor any memorandum of this SAA. This SAA is solely for the benefit of the Parties and their successors and assigns, and no third party beneficiaries are intended to result herefrom. Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 12/5111 03008-0337/l..EGAL22259663.1 6 Item 6b Accepted: Port of Seattle The Boeing Company By: _ _ _ _ _ _ _ _ _ __ By:_ _ _ _ _ _ _ _ _ __ Title: _ _ _ _ _ _ _ _ _ __ Title: _ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 12/5/1 1 03008.0337/LEGAL222S9663.1 7 Item 6b Item 6b SITE ACCESS AGREEMENT EXHIBITS Item 6b Item 6b Item 6b Item 6b EXHIBIT C TO SITE ACCESS AGREEMENT DSOA AND SOUTHWEST BANK CORRECTIVE MEASURE Item 6b EXHIBIT D To Site Access Agreement Boeing's proposed project consist of the following primary components: design data collection sampling, sediment/soil remediation, temporary construction structure installation, and maintenance and monitoring. Each project component is described below. 1.0 DESIGN DATA COLLECTION During design of the corrective measure, Boeing may have a requirement to collect additional environmental and/or geotechnical data within the project area. All design data collection activities will be conducted pursuant to Boeing's Administrative Order on Consent (Order) with EPA. 2.0 SEDIMENT/SOIL REMEDIATION The Duwamish Sediment Other Area (DSOA) and Southwest Bank Corrective Measure includes the following project elements: 2.1 • Dredging with subsequent backfilling of the DSOA open-wat~r areas, • Dredging with backfilling of the 2-40s Under-building area, • Removal of sediment and subsequent backfilling of the Outfall 12 area, • Removal of contaminated bank fill material from the Southwest Bank area with subsequent reconstruction of the bank, and • Removal of sediment from 4 areas with subsequent backfilling within the Boeing-owned portion of Slip 4. DREDGING OF THE DSOA OPEN-WATER AREAS The area of the DSOA (excluding the Under-building Area) is 13.96 acres. The northern boundary of the DSOA extends to the opening of Slip 4, while the southern boundary extends approximately 150 feet south of the Boeing Plant 2/Jorgensen Forge property line. The eastern boundary of the DSOA open-water area is the toe of the slope along the shoreline or building faces and the western boundary extends at least to the Federal Navigation Channel along the length of the Facility. The final configuration of the DSOA Corrective Measure relative to the Navigation Channel will be detennined as part of the final design of the dredge cuts. The corrective measure for the DSOA is a variable-depth dredge and backfill design. Over about 50% of the DSOA, elevated concentrations of polychlorinated biphenyls (PCBs) are confined to the top 4 feet below the existing mud line; however, in about 10% of the DSOA elevated concentrations of PCBs extend beyond 12 feet below mudline. The minimum proposed dredge cut over the entire DSOA 1 Item 6b would be 2 feet with deeper dredge cuts in areas where there are concentrations of PCBs above the Sediment Management Standards (SMS) Sediment Quality Standards SQS; WAC 173-204-320) at depth. After dredging, the DSOA will be backfilled with clean material (no detectable PCBs and other SMS analytes will be below the SQS) to restore elevations, except that fill within the navigation channel and 10 feet inshore of the channel above -17 feet mean lower low water (MLLW), is not required. The total dredge volume of the DSOA open-water area is estimated to be approximately 200,000 cy. Dredged material from this corrective measure will be transported to a permiHed Subtitle D facility for disposal except for a small volume of sediment (approximately 400 cy) that may require Subtitle C disposal. Water management equipment will be staged upland to handle the dredge return water (water from the barges and water that comes in contact with the stockpiled sediment at the Site). That equipment may in_clude holding tanks, pumps, flocculent dispensing equipment, and Geotubes®, and will be used as appropriate, to remove sediment from the dredge return water prior discharge to the Lower Duwamish WateiWay (LDW). 2.2 THE 2-408 UNDER·BUILDING AREA The 2-40s Under-building area is an approximate 1 ,000-foot-long section of Buildings 2-41, 2-44, and 2-49 that overhang the Duwamish WateiWay shoreline bank. The overhanging portion is approximately 50 feet wide and is supported by wooden piles. It is physically separated from the uplands by a continuous bulkhead wall. Running underneath the overhang are a number of pipes, foundations, and other utility infrastructure that once supported the former manufacturing operations within the buildings. The surface beneath the overhang is covered with riprap extending to a scalloped sediment interface that is only exposed during low tide. Boeing is currently removing the over-water portion of the buildings. This project includes the removal of the concrete slab, piling, riprap, foundations, and bulkheaded areas with subsequent excavation of sediments in the under-building area. The sediments in the Under-building area contain elevated concentrations of PCBs and other constituents which are, with a couple of exceptions, limited to 6 feet below the existing sediment surface. The proposed excavation area of approximately 10,000 cy. The excavation will then be backfilled with clean sand (no detectable PCBs and other SMS analytes will be below the SOS). 2 Item 6b 2.3 OUTFALL 12 AREA Outfall 12 is in the intertidal zone located on the bank at the south end of the Building 2-49 adjacent to the Southwest Bank. An interim measure was conducted in this area to remove sediment and soils with elevated concentrations of PCBs (Weston 1998). Approximately 20 cy of sediment were removed at Outfall12. Sediments with concentrations of PCBs above the SQS still remain in place below the backfilled interim measure excavation. The Outfa1112 action will be designed to remove sediments with elevated concentrations of PCBs. Within the footprint of the prior interim measure, sediment will be removed to a depth of approximately 6 feet below mudline. After excavation, the Outfa1112 area will be backfilled with clean sand material (i.e., no detectable PCBs and other SMS analytes will be below the SQS) to restore elevations. This excavation is expected to be less than 100 cy. 2.4 SOUTHWEST BANK The Southwest Bank refers to the southern-most portion of Plant 2 fronting the LOW, specifically that section of riverbank located between the Plant 2 southern border and the 2-49 Building located approximately 400 feet to the north. The current bank is steep (on the order of 1.5 to 1 H:1V) and consists of riprap and miscellaneous debris fill. Elevated metals concentrations (primarily cadmium, copper, lead, and zinc) found in Southwest Bank soils appear to be related to large amounts of debris found within the upper deposits of the Southwest Bank fill. PCBs were also occasionally detected in the Southwest Bank. The proposed excavation is approximately 7,000 cy. 2.5 SLIP 4 Based on review of existing sediment data in Slip 4, there are four areas within the Boeing-owned portion of Slip 4 that will be excavated and backfilled. Within these areas, sediments will be excavated to a nominal depth of 2, 3, or 4 feet and subsequently backfilled with clean sand. The estimated volume of the sediment to be removed is approximately 650 cy. The cleanup in Slip 4 will be conducted at the same time as the DSOA corrective measure. 3.0 TEMPORARY CONSTRUCTION STRUCTURES To support the Boeing Plant 2 sediment remediation project, a number of temporary mooring points for floating equipment (barges, tug boats, dredge equipment, etc.) will be required. These mooring points will provide locations where equipment can be temporarily moored during the project. These mooring points may be installed, removed and reinstalled within the project area during the course of the project. 3 Item 6b Mooring points may consist of single steel piling or 3 piling clusters (dolphins). The pile used will typically be steel, 12 to 24 inches in diameter. They will be installed and removed using vibratory equipment to the extent practicable. It is anticipated that up to 10 individual mooring points (single piles or three pile dolphins) may be installed at any one time, and that each of these could be removed and reinstalled several times during the course of the project. 4.0 MONITORING As part of the Order with EPA, monitoring may be required to periodically collect sediment samples to determine if recontamination of the remedy is occurring. 4 Item 6b RESTORATION EASEMENT EXHIBITS Item 6b Return Address Document Title(s) (or transactions contained therein): I. HABITAT RESTORATION EASEMENT AGREEMENT 2. 3. Reference Number(s) of Documents assigned or released: (on page_ of documents(s)) Grantor(s) (Last name first, then first name and initials): I. Port of Seattle, a Washington municipal coqJOration 2. 3. Grantee(s) (Last name first, then first name and initials): I. The Boeing Company, a Delaware corporation 2. 3. Legal description (abbreviated: i.e. lot, block, plat or section, township, range) Portion of SE 114 of Sec. 29, T. 24N, R. 4E, W.M. AND portion of NW 1/4 of Sec. 33, T. 24N, R. 4E,W.M. Fu1llegal is on page _ of document. Assessor's Property Tax Parcel/Account Number INSERT HABITAT RESTORATION EASEMENT AGREEMENT - Exhibit 4 to Port/Boeing Agreement 1216/1 I 03008-0337/LEGAL22259S52 .1 Item 6b HABITAT RESTORATION EASEMENT AGREEMENT THIS HABITAT RESTORATION EASEMENT AGREEMENT r•Agreement") is made this _ _ , day of , 2011 (the ..Effective Date"), by and between the PORT OF SEATTLE, a Washington municipal corporation (the ..Port") and THE BOEING COMPANY, a Delaware corporation ("Boeing") (hereinafter the ..Parties"). RECITALS A. The Port is the successor in interest to Commercial Waterway District No. 1 of King County, which acquired interests in certain real property located in King County, Washington, lying along and including a portion of the shoreline and submerged lands on the Lower Duwamish Waterway and more particularly described on EXHffiiT A (the ..Port Property"). B. Boeing owns certain real property adjacent to the Port Property and more particularly described on EXHIBIT B (the ..Boeing Property"). C. Boeing has entered into a consent decree (as the same may be modified from time to time, the ..Consent Decree") with the United States of America (on behalf of the National Oceanic and Atmospheric Administrat~on, the United States Department of the hlterior, and the United States Fish and Wildlife Service), the State of Washington through the Washington Department of Ecology, the Muckleshoot Indian Tribe and the Suquamish Tribe (collectively the ••Trustees"). Pursuant to the terms of the Consent Decree, Boeing will implement a habitat restoration project (the ..Habitat Project") to restore and/or create off-channel and riparian habitats in the Lower Duwamish Waterway in an area where they have been largely eliminated. The Habitat Project will include, but not be limited to, removal of certain over-water structures, reduction of slopes, cutback of banks, softening of banks, creation of new intertidal habitat, creation of brackish marsh fringe and addition of large woody debris. A portion of the Habitat Project is to occur on the Port Property. D. The Consent Decree requires Boeing to take all necessary actions to obtain an eaSeDJ.ent on behalf of the Trustees so that the Habitat Project will be protected in perpetuity and the Trustees will be permitted access to the Port Property on which the Habitat Project will be constructed at the times and under the circumstances described in the Consent Decree. HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 1216/11 03008-03371l..EGAL22259552.1 2 Item 6b F. The Parties now desire to enter into an agreement to grant to Boeing a perpetual easement to construct, maintain, monitor, replace and restore the portion of the Habitat Project located on the Port Property, together with certain other rights, all subject, however, to the terms and conditions set forth in this Agreement. The Parties intend for the Port to grant Boeing the same degree of control over the Port Property as the Port is legally entitled to exercise over the Port Property to the extent necessary for Boeing to satisfy its obligations under the Consent Decree. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: AGREEMENT 1. Easement for Habitat Project 1.1 Grant of Easement The Port does hereby grant, convey and quitclaim to Boeing, for the benefit of Boeing and of the Boeing Property, an exclusive, perpetual easement (the "Easement") on, across, under, in and through the Port Property to excavate, remove, construct, reconstruct, install, use, operate, repair, replace, monitor, restore, maintain, relocate and alter (collectively, "Construct and Maintain") portions of the Habitat Project, togethe~ with all appurtenant fixtures and equipment that are necessary or convenient and that are directly related to the Habitat Project, including without limitation, the right to excavate and remove soil and the right to use the subsurface area in connection with the Habitat Project, and together with such rights of access as may be necessary or desirable for the full use and enjoyment of the rights granted in this Agreement. The exclusive purposes of this grant of easement are to provide for the establishment, maintenance and operation of portions of the Habitat Project ou the Port Property, and to establish the Habitat Project as the exclusive use of the Port Property, subject only to the rights of the public to use of the Lower Duwamish Waterway as required by law or as otherwise provided in Section 1.11 below. The Parties expressly agree that there is no intent to convey any rights other than those that are granted in this Agreement. The Parties do not iutend for this Agreement to convey fee title in any form or any other interest other than an easement subject to the conditions described in this Agreement. 1.2 Trustee Access and Use Under the Consent Decree The Trustees and each of them, aud their respective contractors, shall have the right to enter outo the Port Property for purposes of inspecting and monitoring the Habitat Project, HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/611 I 03008-0337/LEGAl.22259552.J 3 Item 6b and, provided each Trustee that enters onto the Port Property agrees to each of the terms and conditions of this Agreement, including without limitation, the obligation to indemnify and hold the Port harmless as set forth in Section 6.1 below, to conduct such further work on the Habitat Project as it deems necessary or desirable so long as that work complies in all respects with the terms of the Consent Decree. 1.3 Establishment of Restrictive Covenant The Port further declares that the Port Property shall be held, conveyed, hypothecated, encumbered, leased, used, occupied and improved subject to this Agreement and to all of its terms, which are declared and agreed to be equitable servitudes in furtherance of a plan for the improvement and use of the Port Property, and are established and agreed upon for the purposes set forth in this Section 1. The Parties agree, however, that under no circumstances will the Port's underlying interest in the Port Property be subordinated or otherwise made subject to any security interest. All such covenants, conditions and restrictions shall run with the Port Property and each part of it, and shall be binding upon, and shall be for the benefit of, the Parties to this Agreement and their respective successors and assigns. The Port hereby reliQquishes forever, for itself and for its successors and assigns, the right to develop or use the Port Property in any manner that would be inconsistent with the Habitat Plan or Boeing's obligations under the Consent Decree. 1.4 Exclusive Rights Commencing on the Effective Date, Boeing will have the sole and exclusive right to enter onto the Port Property and to take such actions as are necessary to Construct and Maintain the Habitat Project, subject only to the rights of the Trustees set forth in Section 1.2 above. Without limiting the generality of the foregoing, subject to the rights of the public to navigation as established by law and those rights set forth below in Section 1.11, Boeing shall have all of the Port's right to exclude all persons from the Port Property during construction, reconstruction, maintenance, and other activities related to the Habitat Project, and to take such other actions for the safety and protection of Boeing and its employees, contractors and agents as Boeing may elect in its sole discretion. 1.5 Water Rights; Plant Material To the extent pennitted by law, Boeing shall have the sole and exclusive right to use and appropriate all water rights appurtenant to the Port Property for the Habitat Project. The Port grants, conveys and transfers to Boeing all of the Port's right, title and interest in and to HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 121611 I 03008-0337II...EGAL22259S52.1 4 Item 6b those water rights; provided, however, that they shall be used and applied solely for the purposes of constructing, maintaining and operating the Habitat Project. The Port further grants, conveys and transfers to Boeing all of the Port's right, title and interest in and to all trees and other plants and plant materials that are located on the Port Property on the Effective Date, and grants to Boeing the right to remove and dispose of any or all of them, to make any or all of them a part of the Habitat Project, and to allow any or all of them to remain as a part of the Port Property, all in Boeing's sole discretion. 1.6 Plans and Specifications for Habitat Project The Port approves the preliminary conceptual design for the Habitat Project as described in the project description and scope of work attached as EXHffiiT C. The Habitat Project shall be constructed, installed and maintained in accordance with final plans and specifications approved by Boeing pursuant to the Consent Decree. Boeing shall cooperate with the Port to the extent reasonably practicable to take into account the Port's comments to the proposed final plans and specifications. The Port acknowledges and agrees, however, that final plans and specifications for the Habitat Project shall be those that are approved by Boeing pursuant to the Consent Decree. 1.7 Utilities Boeing will pay for all utilities used in connection with the Habitat Project during the term of this Agreement, including all utility service during construction of the Habitat Project and all utilities used in the operation and maintenance of the Habitat Project. 1.8 Termination by Boeing Boeing shall have the right to terminate the easement granted in this Section 1 if the easement is no longer needed by Boeing in order to fulfill its obligations ·under the Consent Decree. The easement, and all of Boeing's rights under the easement, may be terminated pursuant to this Section 1.8 by written notice given by Boeing to the Port, stating the date on· which the easement will terminate. The Parties' obligations under Section 6 shall survive termination of the easement. 1.9 Port Cooperation The Port shall cooperate with Boeing in Boeing's exercise of the easement rights granted in this Agreement and shall refrain from entering into any agreements with third HABITAT RESTORATION EASENIENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/6/11 03008-0337/LEGAL22259552.1 5 Item 6b parties concerning the Port Property, or otherwise taking actions, that would be detrimental to the free and unfettered exercise by Boeing of those rights. 1.10 Stormwater Control The Port and Boeing acknowledge the presence of certain stormwater control facilities on the Port Property. The Port and Boeing further anticipate that they will enter into one or more easement agreements for installing and maintaining existing and/or new stormwater control facilities, provided that there shall be no interference with the Habitat Project as a result of the installation and maintenance of such facilities. 1.11 Access Righ~ sunder 1991 Easement The Port and Boeing acknowledge the existence of the Access Easement granted by the Port to Boeing in June 1991 for the purpose of facilitating public access through the Port Property to the Duwamish River shoreline as part of the City of Seattle's permitting requirements for Boeing's construction of the North Duwamish Campus (" 1991 Easement"). The access rights granted under the 1991 Easement are not superseded by this Agreement and will remain in effect until the City of Seattle approves alternate shoreline public access for the North Duwamish Campus. 2. Notices Notices required to be given under this Agreement shall be in writing, via United States mail, electronic mail, or hand delivery, and shall be given as follows: · If to the Port: Port of Seattle P.O. Box 1209 Seattle, WA 98111 Attn: Kathy Bahnick Email: Bahnick.K @portseattle.org If to Boeing: Boeing The Boeing Company P.O. Box 3707 MJC lW-12 Seattle, WA 98124-2207 Attn: Mike Gleason Email: michael.j.gleason@boeing.com HABIT AT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Pan/Boeing Agreement 1216/ll 03008-0337/LEGAL222S9552.1 6 Item 6b Notices shall be deemed effective, if mailed, on the fifth day following deposit thereof in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or upon delivery thereof if given in any other manner. Either party may change the address and recipient to which notices may be given by giving notice in the manner provided in this Section 2. 3. Compliance with Laws and Rules The rights granted to Boeing in this Agreement shall be exercised in accordance with the requirements of all applicable statutes, orders, rules and regulations of any public authority having jurisdiction. 4. Work Standards All work performed by Boeing on the Port Property shall be completed in a careful, competent and workmanlike manner, free of all claims of liens. Following any construction, Boeing shall replace any property comer monuments, survey references or hubs which were disturbed or destroyed by activities conducted by Boeing or at Boeing's direction. S. Port's Use of Easement Area . The Port retains the right to fully use and enjoy the Port Property to the extent not inconsistent with the rights granted to Boeing in this Agreement. The Port shall not construct or maintain any buildings or other permanent structures on or over the Port Property without Boeing's prior written consent. 6. Hold Harmless and Indemnity Agreement 6.1 Boeing's Hold Harmless and Indemnity Agreement Boeing shall indemnify and hold the Port hannless from and against (i) any and all claims, losses, costs, expenses, liabilities or damages (collectively, ..Claims") arising out of Boeing's negligent or willful failure to perform its obligations under this Agreement, (ii) any and all Claims related to the release of hazardous substances at, on, under or from the Port Property caused by Boeing's use of the Port Property after the Effective Date of this Agreement, and (iii) any and all Claims for bodily injury to or death of any person or loss of or damage to any property arising out of Boeing's or its contractors' consultants', or agents' negligence or willful misconduct associated with Boeing's use of the Port Property after the Effective Date of this Agreement, except to the extent such Claims are caused by the HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/6/1 I 03008-03371LEGAL22259552 .I 7 Item 6b negligence or willful misconduct of the Port, aR:y Trustee exercbing its right to coR:dl:tet work oR the Port ProJ3e1ty, or any other person or entity seeking indemnification under this Section 6, or their agents, employees, contractors or invitees. 6.2 The Port's Hold Harmless and Indemnity Agreement The Port shall indemnify and hold Boeing and its affiliates and officers, directors, members, employees, agents, contractors, successors and assigns hannless from and against (i) any and all Claims arising out of the Port's negligent or willful failure to perform its obligations under this Agreement, and (ii) any and all Claims for bodily injury to or death of any person or loss of or damage to any property arising out of the Port's or its contractors' consultants', or agents' negligence or willful misconduct associated with Port's use of the Port Property, except to the extent such Claims are caused by the negligence or willful misconduct on the part of Boeing, any Trustee exercising its right to conduct work on the Port Property, or any other person or entity seeking indemnification under this Section 6, its agents, employees, contractors or invitees. 6.3 No Effect on Allocation of Responsibility for Prior Releases This Agreement shall not be interpreted to have any effect on the Parties' liability with respect to actions or activities that occurred prior to the Effective Date of this Agreement, including without limitation, liability for past releases of hazardous substances to the Duwamish Waterway. 7. Attorneys' Fees In the event either party brings a legal action against the other party to enforce its rights under this Agreement, the substantially prevailing party shall be entitled to receive reimbursements from the other party for such prevailing party's costs incurred in such legal action (including the costs of appeal), including the reasonable fees and disbursement of the prevailing party's attorneys, in addition to all other rights and remedies available to the prevailing party at law or in equity. 8. Complete Agreement Except for the Boeing/Port Agreement and the 1991 Easement described in Section 1.11 above, this Agreement contains the entire agreement of the Parties with respect to the Habitat Project and supersedes all prior or contemporaneous writings or discussions relating to any easement to the Port Property and agreements provided for therein. This Agreement HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/6111 03008·0337/LEGAL22259552 .1 8 Item 6b may not be amended except by a written document executed after the date hereof by ~e duly authorized representatives of Boeing and the Port. 9. Choice of Law; Invalidity This Agreement shall be governed by the laws of the State of Washington, exclusive of its choice of law rules. In the event any term, covenant, condition, provision or easement contained in this Agreement is held to be invalid, voided or otherwise unenforceable by any court of competent jurisdiction, such holding shall in no way affect the validity or enforceability of any other term, covenant, condition, provision or easement contained herein. 10. Successors and Assigns The rights herein granted and the duties hereby agreed to shall inure to the benefit of and be binding upon the Parties' respective successors and assigns. Notwithstanding the foregoing, Boeing expressly reserves the sole and exclusive right to modify or terminate the this Agreement and the easement granted in it on behalf of the grantee and holder of the easement rights without the agreement or joinder of any other party, other than the Port, including without limitation any successor to Boeing as owner of the Boeing Property or any part of it. 11. Exhibits The following exhibits attached to this Agreement are incorporated into it by this reference and made a part of it as though fully set forth: Exhibit A Exhibit B Exhibit C Port Property Boeing Property Project Description and Scope of Work IN WITNESS WHEREOF, the Parties have executed this Agreement through their appropriate officials and representatives. The Port: PORT OF SEATILE, a Washington municipal corporation HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 1216/11 03008-03371LEGAL22259552.1 9 Item 6b By Name: __________________________ Title: ------------------------ Boeing: THE BOEING COMPANY. a Delaware corporation By Name: __________________________ Title: ------------------------- HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/6111 03008-0337/LEGAL222S9552.1 Item 6b STATE OF WASHINGTON COUNTYOF ) ) ss. ) On this _ _ day of , 20_, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared , to me known to be the person who of PORT OF SEATTLE, the Washington signed as . municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation for the uses and purposes therein mentioned, and on oath stated that was duly elected, qualified and acting as said officer of the municipal corporation, that _ _ was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington, residing a t - - - - - - - My appointment expires: - - - - - - - - HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12/6/11 03008-0337/LEGAL22259552. I 11 Item 6b STATE OF WASHINGTON COUNTYOF ) ) ss. ) On this _ _ day of , 20_, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally , to me known to be the person who appeared signed as of THE BOEING COMPANY, the Delaware corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation for the uses and was duly elected, qualified and purposes therein mentioned, and on oath stated that acting as said officer of the corporation, that _ _ was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington, residing a t - - - - - - - My appointment expires:-------- HABIT AT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 1216/1 I 03008-0337/L.EGAL22259552.1 12 Item 6b Y,$£W:HT AREA- POBJ QF SUULE ME• a "fHL l!f!SPIIQ!D THAT PORT10fl OF THE IIOVtlii!MT CIUo\RTER OF SECTIOM 28, TOWNS. :lA NOirTH, RMIGE o.t EAST, W.M., CITY OF aATTLE, Ill ICIIoiO COUNTY, WAIJ.-GTOfl, LYING WITliN THE DUW-H C~<:IAL WATERWAY, DEIICIUIIED loS FOLLOWS: ~IIG AT THE NORnfWfiST BOUN)AJIY C O - DF THE~ IIOElNG PLMT 2 IOUHONtY SURVEY, AS III!COitDID Ill VOLU. 1S1 OF SURVEYS, PAGE 18t. RECOfti)S DF KMG COUNTY, W-GTON. SMI CORNER BEING THE llnERSECnOH OF THE -TH 1.1NE OF THE BDEIHG PLANT 2 Bow<<>ARY, WITH THE -THEASTEIU.Y RIOHf OF WAY 1.111E OF THE DUWAMISH COIDIERCIAL WATBIWAY, ~CE ALONG SAil) AIGHT DF WAY,_, WEST BOUNDARY, 80\JTH 47~1-31 EAST. A DISTANCE OF 101.AS FEET TO 1lE T111.1E PC:Wff OF BEGINNING: TltENCE SOIITl1 :10-117~ WEST, A DISTANCE OF 31.M FEET: THENCE CONTliMNG AlONG SAID EASEMEHT THE FOlLOWING COURSES AND DISTANCES; SOUTH ONI2~ EAST, 4&.57 F&T: SOtfTH 17-45-a EAST, "-51 FEET; SOUTH $4.4H4 EAST, 4113 FEET; SOUTH 15-11 EAST, 42.22 Fl:ET; SOUTH :>>-14-63 EAST, 40.87 Fl:ET: SOUTtl$358~ EAST, t2.t2 Fl:ET; SOIITll 40-5741 EAST, 53.07 FEET; SOunt oiS-50-37 EAST, 137.M FEET; SOVTH 48.4J~ EAST, 10.13 FE£T; SOUTH 62-36~7 EAST, 5e.Q FEET; SOUTH S2-14-10 EAST, 83.~ FEET; NORTH Uoo1WS EAST, 4&.94 FEET; NORTH :lS~-13 WEST, 20.00 FEET: NORTH 17-3~WEST, :ZO.U FEET; NOfl'Tif 1104Ne EAST. 2U$ FEET: TltEHCE NORTH4T.S13f wt:ST, A DISTANCE OF 137.78 FEET TO THE TRUE PaNT OF 81!GINN1HG. EASEI!IE!!! AI!EA- PORI OF SEATl1J N!EAt1 !l.iGAL Qi&CRII"TION! THAT PCRTlON OF ntE IC)~BT QUARTtR OF SECTION SS, TCMNSifiP 24 MDRTII, RANGE o.t LUT, W•• • CIT\' OF 1UICWILA. IN KING COUNTY, WAIHI NliTDN, LYl NO WITH IN 1'11E DUW~H ~ERCAIL WAn.wAY DDCRIIIID M Fot.l.OWII: COM-O AT THE IOU~ST BOUNDARY C~R OF THE AMENDED BQI;IHG PlANT 210UNDARY SUit\IEY, AI RECORIIIII Ill VOLUME 131 DF SURVEYS, PAGE 119, RltCORDS DF lONG COUNTY, WASHINGTON. SAl) CORMP. IelNO THE INTERaECTION OF TltE IOUTif UNE OF SAID 11091G PI.NfT 2110UNDARY, WITH THE NOfl'TifEAITERLY RIGHT OF WAY UHE OF 1'11E DUWAIIIIIf C:OMMERQAL WATfRWAY, SAID INTERSEcnON 11£1MO A POINT ON A CUIWE TO 1'11E LEFT F - WMENCE 1'11E CENTtR Bl'AIIa SOUTH 53'50'0$" WEST, A DISTANCE OF 1,!1e9.12 FEET; THEMCIE ALONG SAID CURVE, AND WIESTEIU.Y BOUNDARY, ni'IOUGH A c:EN"mAL AMGLE OF 01"10'01", AN All<: LENGnt OF 40.14 FEET TO TlG! TRUE POINT Of BEGlNNINO; THEHCE CON111MNG ALONG SAID CURW TO 1HE I.DT, THROUGH A CENTRAL ANGLE OF 10"31'31", AM ARC LENGTH OF :1111.71 F1!ET TO TliE POINT OF TANGENCY; TIENCE NORTH 47"51'31" WfST, ALONG SAID 'WA~WAY, A DISTANCE OF 114.1$ FEET; T~NCE SOUTlt 0$""5'W EAST. A DISTANCE ~ t.ss R!ET; THENCE CONnNUING ALONG SAID EASEMENT, THE FOLI.CMlNO ODUIIllllel AlGI OISTANCES; IOU'IM 41"311'~· EAST, 11.D FEET; SOUTH 03'5e'SZ" EAST, 2a.05FEET: SOUTH17":111'34"1!MT, .:1.73 FEET, SOUTlt 27"21'52" EAST, :ti.tS FEET; soutH W5r51" lAST, 2t.IO fEET; SOUTII 52"11'05" EAST, 7Z.34 FEET; SOUTH 441"1S'11" EAST, 14M FEET; SOUTH 43"31'35" lAST, 101 .. . FEET; SOUTH 57"12'20" EAST. 13.28 FEET: 1'11EHCE Newtnl r•·u• EAST, A IKSTNo!CE OF 44.11 FEET TO THE l'AUI: POINT OF lUlGI-. n z " f ! f [ AREA ·PORT OF SEAULE AREA U- !LEGAJ. DfSCI!PDD!Q Pori Pr~erty THAT PORTION OF THE SOUT11EAST QUARTER OF SECTlON 2t, TOWNSHIP 24 NORTH, RANG~: o.t EAST, W.M., OTY OF SEATTl£, IN KINO COUNTY, WASHIICOTON, l YIIIG WITH II TilE DUWAMISH COIIMEACIAL WATD(WAY, COMMENCING AT THE NORTHWEST BOUNDAAY COIINER OF THE AMENDED BOEING Pl..NIT 2 BOUIIDARY 8URVEY, loS RECORDED- IN YOI.UIIt£ 131 OF SURVEYS, PAGE 1n. !IECORDS OF KING COUNTY, WASMINGTC:.. SAID CORNER BEING Tltl: INTERSE.CllOII OF THE NOR1'11 LINE OF THE BOEING PLAHT 2 BOUIIDAAY, WITH TH.E NORlMEASTERLY RIGHT OF WAY UM: OF THE DUWAimH COIIIIERCIAL WATERWAY, ntENCE ALOIIIG SAID AIGHT OF WAY AND WEST 80U-Y, $lOUTH 47"51'>>" EAST, A DISTANCE OF GUO FEET; lltENCI: SOUTH 42"01'24" WIEST, A DISTANCE OF 13.19 FEET TO Tt.: TRUE POINT OF 8EGINNIItG; THENCE SOUTH 41'53'15" EAST, A DISTANCE OF 29.t&FEET: THENCE SOUTH ol1"05'3ll" WfST, ADISTAHCE OF 30.00 FEET; 1'11ENCE NORTH CONT.-....G 900 SQUAAE FEET, OR .t. O.Ga1 IICRE3. MORE OR LESS. EXHIBIT A TO HABITAT RESTORATION EASEMENT AGREEMENT PORT PROPERTY Item 6b A,ff, 0012COODM, OO:UOODUIS, GOJ2000111S,lt2 . . . . . ~ 21flriODI:XlM A'H':)U~.I.U404-Ml02,~12 1C>>1fiD4I,'!;JI A f-.c:TO#U.ItrO.l'T'EDinE OI.Nf~t.t'i tlt14.l'iRNAY Ae QJAIA.IStEOBY CCJrrMC.IIC\I!l WATf.R'NAVD8TRICT NO.1 Oil 1<140 COUfN, WA&HHGTCNAitO£:A$f~MOPIAI.WAY 80U1Joll~ UCJIONS 2' H. SIN-O>>. T~:MK:JRn\rw..•IMf,W,M, ~At 'OJ..CIIWS;. II G~~ AT 'nC HTS ~EC110N OF THi SOOTH MUll: IN OF !Ount ~ISlER nRIIET, KING 12 FUT SOUfl.l t::# n. CI)(C'IflllM 'ttiCPttor. AI<<) "1'IC to.nHWfSTIJtlY NHUl!H .t.TIA!IT~WAV$0UIH,IC:N)e5PU"t SQ.ITHWiSRJt.VC'IllCCOI"'IN.N 'M"JJIQQI'; 'f'toCHtl SOurtt.tr• t:r 11" £Atf, M.~O tiC IOU"''tfNE,TEfi.V W.RO~ OF U.S'J MAAGII'W. WAY toUTM. :WJI f££1'. TQ l'HtWUJ ~ 011 W.':WA'VtNit 10\JI'I'tntSH<::e lountW H'O''WEST, AI.ONGTME WiST MARl:.. Or 1.mtA~..._$0.11'-t.IJG.II'n IH'IflfVM. MlMJ'Ift,10•JIClltn''f'H*.T llll'lr11 rut NOR'THQf' "11 aDUfHUIE Of' GOVE""M:WflOT I) ~J.-.OSECl"'C*lt;THSNa: SOUn-4 WC~IU"GMT. PMAI,UI. Mn4 e AI0.JOV'tt..-4, to.t! 'lET TO THE fASTMNtGINO: 11fH·VO~.S>WiSTW\AaiHOf' 1t1HA~,.,.IIOI.mi.--fU1 , T'OAP'OttfCPo.JWI, ~txiHINJNlAI..CJtrr,lt;,SAI) Wli t T&lii\M.. ON.OJPft/1 TO 'ntii IIIIGHT, lAP~ ti"-VItGA J¥-DIUS DF li<<<.GifE£1'. THAOUGt4 ACEHTMLMIQ.& t7 1I lilt' I.J" AN ~I,I~'I'H OFM.,FUT.lO ftE I'QHfCXTANGEMC'f 'JloDCE CCINTlfi.INGJU:J/Jitl'; M.CIWC:Sl llt'IW",.SOIIIH 1J'III-43"WD'l-715RC1' TOn.HOMMEiJIT(Df(JCRCIAf'OI't1'1Cfr40F 1mtA'¥0\.C IOUTM oi.S YACAT'EO aV k!~ C:OUNn" OFIQI~( ~. ¥6.-1> IF1-.£Q .. " lttCiJ tlOU'4Tr MCCJIIOI \II'CII,_ RIOON:IINQ NO. 7U 1Cll)olll. MNa SOUTtl N' W tt'CAS1, 10 ft-IE SOVTI-tt...:Sl OOflrrtiM ntiPIEOF A o•tANCI! OfF I .U Q JUT~ TJC:ICI: ~ft'h4 C) ~ C' 4f' (AIT, ACISTAICII OF 12'1_. ~lKN:':I! ..:::<Uf~ I1QCfCIN CO~ l EAN 80UlHWt#4V[A:Sf."-ICII5l.ANCE Of'~tlFEI[f;&fd:IPOIHfiEIHG C*IA~Of\l'hC£MlULT ~ OJ lf'n4AYIN.CICilln4'fDIIWCNCI ft.t£c:E"'1tR""*NOM'H it 'H~ rWEJ"'f1!0!1D.61J'I"n, lte)IC£ NOI'OHEMV M.c)NG !IJO EA.CTOU.V;..wtC.ttMQ i!J,A,CI ~~OKA ~l'ftN.AfCIW O' ae•trzrAHA.RCLII'fC'nil OF J.IIS.1JFC:C:T TO'ntE.J!Oeojl OFTHIGEtt;~nEJrCE COHJNAICI AJ.QN; SAIOIAI"TIJIIl.V~tf JII04im.l f'\.. Sia'CAI'fS)UiffUT10A""""OF~IItllc:rot WrTM 'nC ~$11-.'f ........HOF SI.CI EMf W!AGI'W. WAY $CIUTK IIHO e5 FfiT QST 11Hr F**- A.S MEAIUN:O AT NCMT AI!Glla TO. 'nC. >" ~StAJ.OeiO IAIO II'!I.CitfTOFWAV UCt:ai.QSf'UI TD AfiOirftCJl,.,._U8101.1'UE(JF''"" 1'to::n' VAQ1"10N (#.tint A~t: SOUfNI$ littcoftOEO I'C\'OU.IIIE .... AG~.t.S4-0f KJ<J\Hil'......, ft(C)dl COJrmNJ.,"o NOA'nt&r tt "lr~fl . oi!LClKGSAD&I\SliR.VtN.M ni!WA~Y IC4.11neT lOMfil!b~Y LN! CI'~VACAl'DIII'M.A.\'01.1! aa.mt~ t.~~&r-4\ "W"\IiiEW . ~tA&:IiASl'Ul.YWiEOFSACIWA~V DICk)Fefi fOlkiKONIU..O#If.MII HO.. M Ollbe;ONAHAORf011EHTMOOIIIDID\!hD!Jt~.cmat. tl~~ 1Mfelte<<1 ICIJ!OCCUfl'Y'1HfHCE SOUlH ,....W'EAST lt..>>FIFXT. T!<<:Ner:ICR.TH.q'"ZSliJ' EA8f, U'I'FEEl, 1H1HC1E NCIUN.nnru.sT. J:leJG't10ftCSOI.IrH~($ Sovnt.AUI'n... aT11E:f1', lH.f.lra: SOI.IIH WW$1' USf Al.t;H;. rl'E SQJT!ot~ $OU'TW t:# ~'->>'nil S'TtCEf 14,)1 n:tl lO DC WD'T UNE 1:# 0¥ II!AT'IU VACAllc.t 0~"'-tlCC' t MQI1;~ M:)JU'HO'I'ii?IQ-PST.H..DNGnE"WUl LJC.. 211a Jl'n lOtte ~OQIIN)1! 01 LOT 1 11.00( IM .&Am .........U ADilf'nOII ~ ,frll(::fllfti ...,."Sf' \NEtT A\A;)HG tl£~THUil[ CF LOT1 IUt FEn TD lHc:~*Ul CDRJC11110#\.0T 1 k..CQ(t, TtEHC:tiOmtCII*WWiAST ALOHG TloiEWDT UICCI' M..OCKl Fat tone ICimfliC.n C:O.CAa'lDfl.llOCICI~ aoac soun.a• art M IOU!M,..,_UIII OFSOUTHWOITER.SJME'J: 1li£HC£ SOUTM M' U 'Sf"IEA.Sl . Al..C)tltG; ntl ~~NQF aoufltwt. .b s n a t " *.Gf'teT TO nc1W.EJIOII<>>. L~ THE DUWAMISH COIIIMERCIAL WATBMAY, ~D ~ FOU.OW8: wn..-. COIUIE..c.IG AT TIE NO!n'HWEST IIOUNDARY CORHER Of THE AMEHDm aoBHG I'LAHT 2110UNDARY SURVEY, AS RECOROI!.D II VOW IE 131 Of SURVeYS, PAGE 1U, AECORDS Of KING COUNTY, WAStiiNGTOM. SAID CORHEit BII!IIIG lHE IHT'ERSECTOI Of TIE NOitl'K UNE Of THE 8 0EING PLANT 2 BOUNOoUtY. 'MfH l'KE NOinHEASTEJU.Y RIGHT OF WAY LINE Of THE OUW~H COIIIMEitCIAL WA~-AY, l'KENCE ALONG SAID RIGHT Of WAY AND WEST IIOUNDMY, SOVTH 47-61-H EAST, A DISTANCE OF 11U5 FEET TO THE~ !'(>>>T Of 8EGI~ ; THDICE $011TH >>47~1 WI:ST, A DISTANCE Of lUe Ra'; l'KEHCE CONTINUING ALONG SAID EASEMENT THE FOU.OW>>>G COURSES AND OISTANCU ; SOUTH 17.. 24 EAirT, 411 .57 FEET: Sotml17-45-43 EAST, 44 .5'1 FEET; SOUTH 14.A:J.U iAST, 4Ul FEET: SOVTH 15-41 ..13 EAST, 42.22 FE£T; SOUllt >>·14~ ~T. 4&.17 F.E£T; SOUTH U · 51-61 iAST, t2.12 FEET; SOOTH <<147 ~1 iAST, IJJJ7 FEET; $ClOTH 411~~ EAIIT. U7.44 FEET; SOUl'K • J iAST, 70.U FE£T; lOUTH E!.-47 EAST. K .4J FEET: SOI1TH 53·14-10 ~T . ta.U FEET; NOIItTH 52·11·U EMT. 4&.84 Fl:£1': NOI'tl'K 35-42-13 WEST, 2CLOO FEET; NORTH 17-IWl W£$T, ~.43 FEET; NOI't711 D0-44·11 EAST, 21.t5 FEET: 711E~CE ~ORTH 47-51· Jl WEST, A DISTANCE OF t37.7e I"EET TO THE Tl'tUE POINT OF BE.....~IIG. .os.. F,&BBJ!T Afi!A - PORT Of! XATTLE N!iA f1 l!..i9Ab DESCI!P1!0!Q TW.T POR110N OF THE NORTHWQT QUMJ!It Of IIECTJDN >>, T~ 24 ~ ltAHGE 04 EMT, WM., c rry Of TUICWILA IN KING COUNTY, WA-TI>>>, LYING WT711bl THE DUWMdtt CID YMBI CM. WATBMAY OE.ICRl81iD AS FDU.O'IIf$; C OIORMCING AT THE !OUTHWIEST IIOUN DARY CORN lilt Of THE Alll ENlED BOEING I"LAHT 2 110""DAI'tY ~. M N!CORDED IN IIOLU IIE U1 OF ~S. PAGE'"- RECORDS OF KING COUNTY, WASHIIGTOH. SAID CORN&R - G THE IITEIISECTION OF THE SOO'lli UNE Of SM> IIOI!ING PUNT 2 llOUNDARY, W111t TIE ~~Y RIGHT OF WAY LINE Of lHE DUW. . . .H ~c.L WATf!lfWAY, SAID INTERSECTIOH III:ING A I'OINT ON A CURVE TO THE l.B'T l"''ttOI WHENCE THE CENTER REARS SOUTH 51'511'15" WEST, A DISTANC:E OF 1,t • •12 fiET; THENCE ALONG SAID CURVE, AND WESTERLY 80UNOARY, THROUGH A CENTI't.AL AHOL! OF 01"10'05", AN NtC LENGTH Of 40.14 FEET TO THE TRUE POINT OF •UNIHG; TIEJICE CONftl...-o ALONG !lAID CURVII! TO THI! L!J'T, THROUGH A CENTRAL ANGL£ OF 11"31'3"'· AN AltC LENG711 Of :ll1.78 FEET TO THE POINT OF TANGENCY; THENCE NORTH 47"&1'3"' ...-r, ALONO SAID WATI!AWAY, A DISTANCE OF 94.13 FEET; THENCE SOU'lli os••s&&" ~. A DI.'IJTAIICI! OF t .M F!I!T: TH'I!HC! CONnNuiiG ALONG SAID liAIEMIENT, THE FOLLOWING COURSE$ AND . .T EAST, AI,DHG tAIO &\STtMitOIH. 1~.-~~ HJC~SQU'no4rl141'1LAST,AOIITMIC£ t:1f ,._~ 1'. . HCI I>" W£ST, ~<:NQnollaACWE:$1MA. . Of' -~AW.NJI $0UllU I&.IISJIXT. 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Ot'Cff't or SUll\..£ VA.CATD OII'>>Wftt: n4CU~ fl.ENCt H>Ml411"4$WEAST ALONGti<>.JJR'P lO'ne~OOIIMJt(lf lOT I 1\D(JC IOF &AOJt.a.1114' Ancmatt; YHtNCE .NQftfttN"M'5r01f.'Ui, IU.J>>> l'IC SQJlH l ..E 0' l Ot t , nq' FEET TO TIC 101.1TMWh1' CII)IIIIH'[AOfl I.OT 1 . .CIC:It t ftC:IC:t f'Ofii'T't(tJ'flrU.S'T AI.ONG'JJEWUT UNEOF"IlOOK,lMAIIFIUT TOTMG JtCIIImoWCat~MOI' tDTJ.. a.oac i iH:I TM: tOUlH WNtCIINOf.OUTHWUSlEJitlnu:El f'loiENC[ SOUI'H•" W"O'.ISit.s-1' AL(;ffG'nCSQUT'H ........IOCf$- to\lllt-c.tTtA.rt~tn .. .~.-f'ftTTO H 'JIILIE10M'tJF8~ 'r . ,1ft"t, *' ...-f"lF. CQNTAer.iNG• 'n70 iSQ""'JE FE'ET Ok.,l· 1- l li ACKS III:H:OFI;t.ESS EXHIBITS TO OUTFALL EASEMENT AGREEMENT BOEING PROPERTY Item 6b Item 6b SITE ACCESS AGREEMENT FOR PORT OF SEATTLE ON BOEING PROPERTY This Site Access Agreement ("SAA") is made between Port of Seattle ("Port") and The Boeing Company ("Boeing") {hereinafter the "Parties"). RECITALS A. The Port is the successor in interest to Commercial Waterway District No. 1 of King County which acquired interests in certain real property located in King County, Washington, lying along and including a portion of the shoreline and submerged lands on the Lower Duwamish Waterway and generally shown on EXHIBIT A (the "Port Property"). B. Boeing owns certain real property adjacent to the Port Property and generally shown on EXHIBIT B (the "Boeing Property"). C. The Port intends to carry out certain shoreline restoration work ("Work") on the Port Property adjacent to the Boeing Property. The Port requires access to the Boeing Property in order to carry out the Work. D. The Parties have agreed to enter into this SAA to provide access to the Boeing Property for the Port and its contractors and agents to perform the Work. In consideration of the mutual covenants and agreement herein, the Parties agree as follows: AGREEMENT Boeing hereby grants to the Port and its contractors and agents a non-exclusive license for access to the Boeing Property to conduct the Work. The Port agrees that it will provide a copy of this SAA to any contractor or agent retained to assist in the Work, and that all contractors and agents must agree in writing to be bound by its terms. The time and maxmer of such access shall be pursuant to the terms of this SAA: Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 33055-0002/LEGAL21523135.1 8/11/11 1 Item 6b 1. Time/Schedule. a. This SAA shall remain in full force and effect until the Work is completed. The Port shall coordinate with Boeing to ensure that the Work is done in a timely manner. b. The Port and its contractors and agents shall have twenty-four (24) hour access, seven (7) days per week, 365/366 days per year to the Boeing Property starting on the Effective Date of this SAA. 2. Boeing's Cooperation with the Work; No Conflicting 3rt! Party Agreements. Boeing, including its representatives, contractors, or agents, shall cooperate in the performance of the Work by the Port, including its representatives, contractors, or agents. At all times while this Agreement remains in place, Boeing shall use reasonable efforts to refrain from entering into any agreements with third parties concerning the Boeing Property that would be dett:imental to the Port's efforts to conduct and complete the Work in a timely and diligent manner. 3. Hold Harmless and Indemnification. 3.1 The Port's Hold Harmless and Indemnification Agreement: The Port shall indemnify and hold Boeing hannless from and against (i) any and all claims, losses, costs, expenses, liabilities or damages (collectively, "Claims") arising out of the Port's negligent or willful failure to perform its obligations under this SAA, (ii) any and all Claims related to the release of hazardous substances at, on, under or from the Boeing Property due to the Port's use of the Boeing Property after the Effective Date of this SAA, and (iii) any and all claims or liability for bodily injury to or death of any person or loss of or damage to any property, including reasonable attorneys' fees and costs, arising out of the Port's or its contractors, consultants, or agents negligence or willful misconduct Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 330SS~0021LEGAL21S2313S.l 8/ll/ll 2 Item 6b associated with the Port's use of the Boeing Property after the Effective Date of this SAA, except to the extent such Claims are caused by the negligence or willful misconduct of Boeing or Boeing's agents, employees, contractors or invitees. 3.2 Boeing's Hold Harmless and Indemnification Agreement: Boeing will indemnify, defend, and hold the Port harmless from and against (i) any and all Claims arising out of Boeing's negligent or willful failure to perform its obligations under this SAA, and (ii) any and all Claims for bodily injury to or death of any person or loss of or damage to any property, including reasonable attorneys' fees and costs, arising out of the Boeing's use of the Boeing Property after the Effective Date of this SAA, or from any activity, work or thing done or permitted by Boeing or Boeing's employees, agents, contractors or invitees in or about the Boeing Property after the Effective Date of this SAA, except to the extent such Claims are caused by the negligence or willful misconduct on the part of the Port, its agents, employees, contractors or invitees. 3.3 No Effect on Allocation of Responsibility for Prior Releases. This Agreement shall not be interpreted to have any effect on the Parties' liability with respect to actions or activities that occurred prior to the Effective Date of this Agreement, including without limitation, liability for past releases of hazardous substances to the Duwamish.Waterway. 4. Party Representatives. Communication under this Agreement shall be directed to the following party representatives: To the Port: Kathy Bahnick Port of Seattle P.O. Box 1209 Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 33055·0002/LEGAL21523135.1 8/11/11 3 Item 6b Seattle, WA 98111 Phone: (206) INSERT Email: Bahnick.K @portseattle.org Tom Newlon Stoel Rives, LLP 600 University Street, Suite 3600 Seattle, WA 98101 Phone: (206) 386-7677 Email: tanewlon@stoel.com To Boeing: Mike Gleason The Boeing Company P.O. Box 3707 MIC lW-12 Seattle, WA 98124-2207 Phone: (206) 290-6576 Email: michael. j.gleason @boeing.com Leah Krider EHS, Boeing Law Department 2710 160th A venue SE Bellevue, WA 98008 Phone: (425) 373-7123 Email: Leah.M.Krider@boeing.com Mark Schneider Perkins Coie LLP 1201 Third A venue, Suite 4800 Seattle, WA 98101-3099 Phone: (206) 359-8000 Email: MWSchneider@perkinscoie.com Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 3305S-00021L.EGAL2 1523135. I 8/11/11 4 Item 6b Any party may change the person or address to which communication may be directed by giving written notice to the representatives provided above. 5. Authority to Execute. Each person executing this SAA on behalf of another person or entity represents and warrants that he or she is fully authorized to execute and deliver this SAA on behalf of such person or entity. The Parties each represent and warrant to each other that no consent of any person or entity not a party to this SAA is necessary in order for this SAA to be fully and completely binding upon the Parties. 6. Entire Agreement. This SAA contains the entire understanding between the Parties hereto and supersedes any prior or contemporaneous understandings and agreements between the Parties with respect to the subject matter hereof. There are no other representations, agreements, arrangements or understandings, verbal or written, between and among the parties hereto, or any of them, relating to the subject matter of this SAA. No amendment or supplement to this SAA shall be valid or effective unless made in writing and executed by the Parties hereto. 7. No Waiver of Remedy for Breach. A failure by any party to this SAA to enforce a term or condition of this SAA does not constitute a waiver of that party's remedies for any breach of this SAA. Waiver by a party to this SAA of one or more terms or conditions of this SAA does not constitute a waiver of any other terms or conditions of this SAA. 8. Applicable Law. This SAA shall be governed by the laws of the State of Washington, exclusive of its choice of law rules. Venue for all disputes shall be King County, Washington. 9. Successors and Assigns. This SAA shall inure to the benefit of and be binding upon the Parties' respective successors and assigns. Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 33055-0002/l.EGAU1523135.1 8/ll/1 I 5 Item 6b 10. Effective Date. The Effective Date of this SAA is the first date upon which the SAA has been executed by all Parties. 11. Miscellaneous. This SAA may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original document, but all of which together shall constitute one and the same document. Neither Party shall record this SAA, nor any memorandum of this SAA. Titis SAA is solely for the benefit of the Parties and their successors and assigns, and no third party beneficiaries are intended to result herefrom. Accepted: Port of Seattle The Boeing Company By: _ _ _ _ _ _ _ _ _ __ By:_ _ _ _ _ _ _ _ _ __ Title: _ _ _ _ _ _ _ _ _ _ __ Title:._ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Date: _ _ _ _ _ _ _ _ _ _ __ Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 33055-0002/LEGAL21523l35.1 8/Il/11 6