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COMMON INTEREST AND COST-SHARING AGREEMENT

BY AND BETWEEN THE PORT OF SEATTLE, THE CITY OF SEATTLE, AND

SOUTH PARK MARINA, L.P.

This COMMON INTEREST AND COST-SHARING AGREEMENT (this

“Agreement”) is made by and between the Port of Seattle, a Washington municipal corporation

(the “Port”), the City of Seattle, a Washington code city (the “City”), and South Park Marina,

L.P., a Washington limited partnership (“South Park”), who are collectively referred to as the

“Parties,” and individually as a “Party.” In making this Agreement, the Parties acknowledge the

following:

RECITALS

WHEREAS, the Washington Department of Ecology (“Ecology”) seeks to investigate

sources and the areal extent of suspected contamination (“Site Contamination”) at and around

South Park Marina, which is located generally at 8604 Dallas Avenue South in Seattle,

Washington 98108 (the “Marina”);

WHEREAS, each Party to this Agreement has been identified as a Potentially Liable

Party (“PLP”) by Ecology within the meaning of the Washington State Model Toxics Control

Act, RCW § 70.105D et seq., in connection with environmental contamination at or associated

with the Marina site (Ecology facility number 44653368) (the “Site”);

WHEREAS, Ecology has asked the Parties to sign an Agreed Order (“Order”) and jointly

perform a remedial investigation and other tasks required by that Order (“RI Work”);

WHEREAS, the Parties desire to share the costs of performing the RI Work; and

WHEREAS, the Parties share a joint and common interest in cooperating with each other

to the extent permitted by law and in sharing certain information otherwise protected from

disclosure by the attorney-client privilege and by the attorney work-product doctrine and/or

joint-defense privilege in conducting a joint defense against any and all actual and potential

claims that may be asserted against them with regard to the Site Contamination.

TERMS OF AGREEMENT

NOW THEREFORE, the Parties mutually agree as follows:

1. JOINT DEFENSE AND COMMON INTEREST. The Parties may, at the sole

option of each, share and exchange intelligence, strategies, research, studies, data, legal theories,

technical conclusions, confidences, information and documents (“Common Interest Materials”)

to advance their negotiations with Ecology for work required under the Order. Common Interest

Materials shall be clearly designated as such on the face of the document.

2. ALL PRIVILEGES MAINTAINED. The Common Interest Materials that the

Parties exchange shall maintain all privileges from disclosure to adverse or other third parties as

Item No. 8f attach 1

Meeting Date: February 26, 2019

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a result of the attorney-client privilege, the attorney work-product doctrine, the privileges

applicable to parties with common interest, the joint-defense privilege, and other applicable

privileges or confidentiality protections to the fullest extent recognized under Washington law.

By this Agreement, the Parties state that in pursuit of their common interests and in joint defense

against any and all actual and potential claims that may be asserted against them with regard to

Site Contamination, they do not intend to waive any applicable privileges and they intend to

preserve to the maximum extent permitted by Washington law the attorney-client privilege,

protection under the attorney work-product doctrine, the joint-defense privilege, and all other

privileges and protections that they may have. In the event of any effort by a third party to

compel the disclosure of Common Interest Materials, including a request under the Washington

Public Records Act, Chapter 42.56 RCW, the Party that is the subject of the records request,

subpoena or other form of compulsory process shall promptly notify the other Parties so as to

afford such Parties the opportunity to seek protection from the compelled disclosure of Common

Interest Materials. Nothing herein shall preclude a party from producing Common Interest

Materials as required by law.

3. CONFIDENTIALITY. Except as permitted by this agreement or otherwise

required by law, the Parties agree not to disclose any Common Interest Materials received from

any other Party or its counsel or technical consultants to any person or entity other than (a)

attorneys and their staff representing a Party in connection with the Order or RI Work; (b)

experts or consultants retained by the receiving Party in connection with the Order or RI Work;

confidentiality agreement; (d) employees, officers, directors, executives, or other elected

representatives of the receiving Party who have responsibilities with regard to the Order or RI

Work. The Parties and their counsel shall take reasonable steps to protect and preserve the

confidentiality of Common Interest Materials received. Individuals permitted access to Common

Interest Materials shall be advised that the information is privileged and confidential and subject

to this Agreement.

3.1 NON-CONFIDENTIAL INFORMATION. Nothing in this Agreement

shall prevent the Parties from disclosing to others or using in any manner information

which the Party can show:

(a) Was known by a Party prior to the execution of this Agreement, has been

published or has become a part of the public domain other than by acts,

omissions, or fault of the Parties or their agents or employees in violation of this

Agreement;

(b) Has been furnished or made known to a Party by third parties (other than those

acting directly or indirectly for or on behalf of the Parties) or was obtained by a

Party in some manner other than pursuant to this agreement as a matter of legal

right, without any applicable restrictions on its disclosure; or

of the Parties.

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4. FUTURE LITIGATION. In any litigation between or among Parties, this

Agreement shall not preclude discovery of Common Interest Materials, and this Agreement shall

not preclude Parties from obtaining disclosure of Common Interest Materials or alter the

obligations of Parties to disclose Common Interest Materials under applicable rules of Civil

Procedure.

5. ADDITIONAL PARTIES. By unanimous consent, the Parties may agree to

allow other persons or entities who share their joint and common interest in defending any actual

or potential claims that may be asserted against them with regard to Site Contamination, and who

agree to be bound by the terms of this Agreement, to join the Agreement.

6. SEPARATE AND INDEPENDENT LEGAL REPRESENTATION. Nothing

in this Agreement shall be construed to affect the separate and independent representation of the

Parties by their respective counsel. Each Party understands and acknowledges that each Party is

represented exclusively by that Party’s own attorneys in the above-referenced matter. While

attorneys representing other Parties to this Agreement have a duty not to disclose the information

disclosed to them pursuant to this Agreement, they will not act for any Party other than their own

clients in the above-referenced matter. Each Party understands and agrees that this Agreement

itself does not and will not create any attorney-client relationship with any other Party’s

attorneys.

7. INDIVIDUAL CONSULTANTS. Nothing in this Agreement shall be construed

to affect the separate and independent ability of the Parties and their counsel to obtain consulting

services, including any environmental consultants, hired directly or indirectly by a Party, or its

attorneys, agents, or contractors, in connection with Site Contamination (“Individual

Consultants”). As may be necessary to effectuate the purposes of this Agreement, the Parties

acknowledge that Common Interest Materials may be shared with Individual Consultants as

agents and/or representatives of the Parties, to the extent the Party does not otherwise violate the

provisions of this Agreement. The Parties intend that the privilege and confidentiality protections

in this Agreement shall apply to the maximum extent permitted by law to information generated

by and shared with Consultants.

8. JOINT CONSULTANT. The Parties will work in good faith to select a

consultant to represent the Parties with the Department of Ecology and to perform work

associated with negotiating and implementing the Order and the RI Work. The Joint Consultant’s

scope of work to complete the RI Work and a budget for the RI Work shall be determined by

unanimous consent of the Parties. Following the selection of the Joint Consultant, pursuant to the

process described in 8.1 below, and approval of the budget and scope of work, the Parties will

endeavor to direct the RI Work by unanimous consent. If the Parties fail to reach consensus

within a reasonable time, the Parties may proceed only after consultation with and direction from

Ecology.

8.1 CONTRACTING.

(a) Selection. The City of Seattle will enter into and oversee contracts

with the Joint Consultant on behalf of the Parties. The City will follow its regular

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contracting procedures to advertise for and select potential consultants except as

described herein. In addition to the City, the Port and South Park Marina shall

participate in interviewing potential consultants. The Parties shall select a

consultant from the pool of applicants by unanimous consent. Unless otherwise

agreed, in no event shall the Joint Consultant be a consultant previously retained

by any Party in connection with the Site or with the T117 Early Action Area.

(b) Billing. The City will provide copies of the Joint Consultant and

Ecology invoices to all Parties prior to payment of each invoice, and will pay each

invoice after receiving authorization from each Party, provided that any

objections to an invoice must be delivered to the City in writing within ten (10)

calendar days of receipt of the invoice by the objecting Party. The City may

presume approval of an invoice if no objection is received within ten (10)

calendar days. The City will prepare and submit a final pro rata invoice for Each

Party, following the 10-day review period. Each Party will reimburse the City for

its share of each invoice within sixty (60) calendar days of receiving the pro rata

invoice and backup supporting the charges indicated on the invoice sufficient to

meet the contracting requirements of each Party. In the event of a timely objection

to an invoice, the Parties will confer within fourteen (14) calendar days

concerning the objection. Following good faith discussions concerning the

objection, if the City does not agree with the objection and wishes to pay the

invoice in full, the other parties shall each reimburse the City for their shares of

the invoice within sixty (60) days of receiving such invoice. If the parties reach

an agreement on an alternative to paying the invoice in full, the City shall

communicate that agreement with the Joint Consultant and the Parties shall pay

their respective shares of the revised invoice total within sixty (60) days of the

City’s communication of that agreement.

8.2 ACCESS TO INFORMATION. Each Party shall have full and equal access to

the Joint Consultant(s) and to all data, results, reports, and other documents or

information supplied to or developed by the Joint Consultant, subject to the

confidentiality provisions of this Agreement.

9. SHARED COSTS. The Parties will share the costs of the RI Work and may,

upon further written agreement or amendment of this Agreement, share the costs of certain

additional specified tasks relating to the investigation and remediation of Site Contamination.

“Shared Costs” as agreed to under this Paragraph 0 shall mean (a) Joint Consultant invoices

approved by all Parties as part of the RI Work; (b) Ecology oversight costs, if any; and (c) any

other costs subsequently agreed to in writing by the Parties. Shared Costs shall not include any

legal expenses, attorney fees, or other legal or Individual Consultant costs associated with a

Party’s independent activities relating to the Site. Unless a different contribution percentage

(“Contribution Percentage”) amount is agreed to in writing by the Parties for a given task, the

Parties participating in this Agreement shall contribute equal shares to Shared Costs on an

interim basis, which at the time of execution is as follows: (i) South Park Marina, 33.33 percent

(%); (ii) the City, 33.33 percent (%); and (iii) the Port, 33.33 percent (%). In the event that any

Party withdraws or is in material breach of this Agreement, the remaining participating Parties

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shall contribute equal shares to the Shared Costs. The Contribution Percentages in no way reflect

any final, negotiated allocation of responsibility for costs associated with investigating and

remediating any Site Contamination and shall not be asserted as such. Such preliminary division

of Shared Costs shall not be admissible evidence in any proceeding except to establish that such

amounts have in fact been contributed by the respective Parties. The Parties recognize and agree

that any Contribution Percentages agreed to pursuant to this Paragraph 0 are compromise

percentages and do not represent the Parties’ view of the ultimate allocation of any liability for

any costs associated with investigating and remediating any Site Contamination. Nothing in this

Paragraph 0 or elsewhere in the Agreement should be construed as an admission of liability by

any Party to any percentage or extent. A Party’s failure to timely pay its share of the Shared

Costs constitutes a material breach of this Agreement. A Party in material breach of this

Agreement shall no longer participate in any decision-making under Paragraph 8 until and unless

such unpaid Shared Costs are resolved.

10. PAST REMEDIAL ACTION COSTS. Nothing in this Agreement shall

preclude any Party that has incurred remedial action costs in connection with the Site prior to

execution of this Agreement from seeking recovery of the same, in whole or in part, from any

other Party or Parties as allowed by law and equity.

11. COMMUNICATIONS. A Party shall not initiate ex parte communications that

do not include the other Parties with any employees or representatives of Ecology regarding any

aspect of the Site, including the Order and the RI Work, without including the other Parties and

giving them an opportunity to participate in the communication. The Parties shall confer in good

faith prior to any planned phone calls or meetings with regulatory authorities to agree on specific

talking points, positions, and/or messages to convey. In the event an employee or representative

of Ecology contacts a Party or its Individual Consultant regarding the Site, that Party shall

promptly notify the other Parties and forward any written communications to all Parties.

12. WITHDRAWAL. Any Party may withdraw from this Agreement upon prior

thirty (30)-day written notice to all other Parties. Any withdrawing Party and that Party’s counsel

shall continue to be bound by this Agreement with regard to any Common Interest Materials

received, learned, or obtained at any time prior to the effective date of the withdrawal, and this

Agreement shall continue to protect all applicable privileges and the confidentiality of Common

Interest Materials disclosed to both the withdrawing Party and that Party’s counsel. Any

withdrawing Party shall continue to be responsible for Shared Costs as described in Paragraph 9

above, and shall continue to pay its share of RI Work until completion of the RI Work as

determined by Ecology.

13. EQUITABLE REMEDIES. The Parties agree that the rights, privileges, and

interests intended to be protected by this Agreement are unique and any violation of this

Agreement may result in irreparable harm and injury to the other Parties. The Parties specifically

agree that the terms of this Agreement may be enforced through appropriate injunctive relief,

specific performance, or other equitable relief; provided that no action to enforce this Agreement

may be brought by any Party without first having referred the dispute to mediation.

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14. DURATION OF AGREEMENT. This Agreement, including its provisions on

the use and confidentiality of Common Interest Materials, shall remain in full force and effect

notwithstanding any settlement or resolution of claims related to Site Contamination. The

provisions of this Agreement governing the use and confidentiality of Common Interest

Materials shall continue to apply to any employee of any Party or its counsel who ceases to be

employed by that Party, and to any expert, consultant, terminated counsel, agent, or contractor

who worked on behalf or under the direction of any Party or its counsel.

15. USE OF AGREEMENT. This Agreement, the contents hereof, or the

preliminary division of any Shared Costs shall not be admissible evidence in any proceeding

without the written consent of all Parties, except as stated in § 9, and except to enforce the terms

of this Agreement, to prove the existence of this Agreement or the common interest or joint

defense privilege by providing a copy of this Agreement and asserting the common interest or

joint defense privilege to a court of competent jurisdiction, or as required by law or court order.

16. HEADINGS NOT CONTROLLING. The paragraph headings included herein

are for reference only and are not a part of this Agreement. The headings shall not control or

alter the meaning of this Agreement as set forth in the text.

17. NOTICES. All notices, requests, consents, claims, demands, waivers, and any

other such communications shall be in writing and shall be deemed to have been given (i) when

delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if

sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by

facsimile or e-mail (with confirmation of transmission); or (iv) on the third (3rd) day after the

date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such

communications must be sent to the respective Parties at the following addresses (or at such

other address for a Party as shall be specified in a notice given in accordance with this Section

17):

If to the Port of Seattle:

Elizabeth C. Black

Senior Port Counsel

Pier 69, 2711 Alaskan Way

P.O. Box 1209

Seattle, WA 98111

Phone: (206) 787-4697

E-mail: black.e@portseattle.org

Copy to:

Thomas A. Newlon

Stoel Rives LLP

600 University Street, Suite 3600

Seattle, WA 98101-4109

Phone: (206) 386-7677

E-mail: thomas.newlon@stoel.com

If to the City of Seattle:

Allison Crowley

PO Box 34023

Seattle, WA 98124-4023

Phone: 206-684-3167

E-mail: Allison.crowley@seattle.gov

Copy to:

Tad Shimazu

Assistant City Attorney

Seattle City Attorney’s Office

701 Fifth Ave., Suite 2050

Seattle, WA 98104-7097

Phone: (206)-233-2151

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E-mail:Tad.Shimazu@seattle.gov

If to South Park Marina, L.P.:

South Park Marina, L.P.

Attn.: Guy Crow, Managing Partner

8604 Dallas Avenue South

Seattle, WA 98108

Phone: (206) 762-3880

Email: crow45@aol.com

Copy to:

Karr Tuttle Campbell P.S.

Attn.: Thomas D. Adams

701 Fifth Avenue, Suite 3300

Seattle, WA 98104

Phone: (206) 224-8026

Facsimile: (206) 682-7100

E-mail: tadams@karrtuttle.com

Any Party may change the address to which notices, requests, demands, claims, waivers, and any

other such communications under this Agreement are to be delivered by giving the other Parties

notice in the manner set forth above. Any Party may make service on the other Parties by

sending or delivering a copy of the process to the Parties to be served at the address and in the

manner provided for the giving of notices above.

18. COUNTERPARTS; SIGNATURES. This Agreement may be executed in any

number of identical counterparts, notwithstanding that all Parties have not signed the same

counterpart, with the same effect as if all Parties had signed the same document. All counterparts

shall be construed as and shall constitute one and the same agreement. Signature images

transmitted electronically on this Agreement will be fully binding and effective for all purposes.

19. AUTHORIZATION AND EXECUTION. By executing this Agreement, the

undersigned certify that they have authority to bind their respective entities to the terms of this

Agreement and are signing on behalf of their respective entities as shown below.

20. FINAL AND COMPLETE EXPRESSION. This Agreement is the final and

complete expression of the Parties concerning the subjects covered by this Agreement and this

Agreement supersedes and replaces all prior agreements, discussions, representations, and drafts,

all of which are merged into, and superseded by, this Agreement.

21. AMENDMENT AND SEVERABILITY OF AGREEMENT. If any provision

of this Agreement is found invalid or unenforceable, then the balance of this Agreement shall

remain in full force and effect. This Agreement may not be amended or modified except in a

writing executed by each Party.

22. GOVERNING LAW. This Agreement was entered into under the laws of the

State of Washington. If it becomes necessary to interpret any of the Agreement’s terms, it is the

intent of the Parties that the laws of the State of Washington shall apply, without giving effect to

the provisions thereof relating to conflicts of laws or choice of laws.

23. BINDING EFFECT. This Agreement is binding upon and inures to the benefit

of the Parties and their respective heirs, legatees, representatives, successors, transferees, and

assigns. Furthermore, this Agreement shall automatically apply to substitute or associated

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counsel who may appear on behalf of any Party, which substitute or associated counsel shall

thereupon become a party to and be bound by this Agreement.

24. THIRD PARTIES; NO WAIVER ON DEFAULT. Nothing in this Agreement

shall be construed to waive any rights, claims, or privileges that any Party shall have against any

person or entity who is a non-participant to this Agreement, Ecology, or any other person or

entity. This Agreement is for the sole and exclusive use of the Parties hereto, and none of the

provisions of this Agreement shall be deemed to be for the benefit of any other person or entity.

A failure to act on any default by any Party shall not be deemed a waiver to protest any future

defaults hereunder.

25. FULL UNDERSTANDING; INDEPENDENT LEGAL COUNSEL. The

Parties each acknowledge, represent, and agree that they have read this Agreement; that they

fully understand the terms thereof; that they have been fully advised by their legal counsel and

other advisors with respect thereto; that it is executed by them upon the advice and

recommendation of their independent legal counsel; and that if any subsequent ambiguity is

found in this Agreement it shall not be interpreted against any Party, as all Parties participated in

the drafting of this Agreement.

26. EFFECTIVE DATE. This Agreement applies to all future exchanges of

Common Interest Materials among the Parties and incorporates the prior intent and practices of

the Parties, as well as prior exchanges of Common Interest Materials, and is effective as of

September 1, 2018.

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IN WITNESS WHEREOF, the Parties below have caused this Agreement to be executed

effective as of the date set forth in Paragraph 26 above.

SOUTH PARK MARINA

______________________

Guy Crow, Owner

CITY OF SEATTLE

______________________

Client

PORT OF SEATTLE

______________________

Thomas Tanaka

Acting General Counsel

KARR TUTTLE CAMPBELL

______________________

Thomas D. Adams

Partner

CITY OF SEATTLE

______________________

Tad Shimazu

Assistant City Attorney

STOEL RIVES LLP

______________________

Thomas A. Newlon

Partner