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GCB 3063

INTERLOCAL AGREEMENT BETWEEN

WSDOT / Port of Seattle

This INTERLOCAL AGREEMENT (Agreement) is entered into between the Washington

State Department of Transportation (WSDOT) and the Port of Seattle (Port), individually

referred to as the “Party” and collectively referred to as the “Parties.”

RECITALS

A. Pursuant to Chapter 39.34 Revised Code of Washington (RCW), Interlocal Cooperation Act,

the Parties desire to enter into an agreement with one another in order to jointly establish a

mutual and cooperative system to carry out their respective obligations of this Agreement for

the construction of the Puget Sound Gateway Program (PROGRAM).

B. In 2015 the Legislature funded the construction of the PROGRAM through the Connecting

Washington revenue package.

C. The Legislature directed that $130 million of the $1.875 billion Program funding is to come

through local funding sources.

D. The State Route 509 Completion Project (PROJECT), consisting of two stages of

construction related to the Port’s contribution, is part of the PROGRAM and will provide the

Port with improvements in local and regional accessibility to its facilities. As shown on

Exhibit B, the SR 509 alignment will provide more direct access to the Airport from I-5 to the

south and will reduce congestion on surface streets currently used for access. This

Agreement is for both Stages1 and 2 construction of the PROJECT that will provide

essential connections to the ports of Tacoma and Seattle and will help ensure people and

goods move more reliably through the Puget Sound region. The PROJECT will benefit the

Port by providing direct freight links from both harbors of the NW Seaport Alliance and from

Seattle-Tacoma International Airport (Sea-Tac) to key distribution centers in the region, to

Eastern Washington, and to other states along the northern tier.

E. The PROJECT will further give travelers accessing Sea-Tac options for approaching from

the South, by finally linking SR 509 and Interstate 5.

F. The Port has entered into a Local Funding and Phasing Memorandum of Understanding

(MOU) with WSDOT (Exhibit A), commencing on July 1, 2018, acknowledging that the Port

is one of eighteen (18) Local Agency Partners committed to provide matching

funds/contributions commensurate with the benefits accrued from the PROJECT at a local

level.

G. The Port is willing to contribute matching funds towards the required local contribution for

the Stages 1 and 2 of construction.

NOW, THEREFORE, pursuant to chapter 39.34 RCW, the above recitals that are

incorporated herein as if fully set forth below, and in consideration of the terms, conditions,

covenants, and performances contained herein, and the attached Exhibits A and B, and

incorporated and made a part hereof, the Parties agree as follows:

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IT IS MUTUALLY AGREED AS FOLLOWS:

General

1.1 This Agreement quantifies the Port’s local contribution commitment to be applied

towards Stages 1 and 2 of construction of the PROJECT components of the

PROGRAM and defines the roles and responsibilities between the Parties for

delivery of the PROJECT.

1.2 The PROJECT will: provide an alternate route between Interstate 5 South and

the Duwamish Manufacturing Industrial Center; it will reduce congestion on SR

518 to improve north access to Seattle-Tacoma International Airport; and will

provide an opportunity for a potential future south access route accessing the

airport.

1.3 This Agreement is effective upon the last date of execution of both Parties and

will terminate upon the sooner of the PROJECT completion, or 12/31/30, unless

mutually extended by the Parties.

1.4 WSDOT shall provide the Port with written notice of commencement of the Phase 1,

Stage 1b portion of the PROJECT’s construction at least thirty (30) days prior to the

commencement date.

Payment

2.1 The Port agrees to contribute funds in two equal payments each in the amount of

fifteen million Dollars ($15m), for a total contribution amount of thirty million dollars

($30m) to WSDOT for entirety (Stages 1 and 2) of construction of the PROJECT.

WSDOT will invoice the Port with evidence that payments of at least fifteen million

dollars ($15m) have been made by WSDOT for the Phases 1 and 2 of construction

of the PROJECT. The Port will pay the invoice within thirty (30) days of receipt from

WSDOT.

2.3 The Port shall not be obligated to contribute funds in excess of thirty million dollars

($30m) for the Stages 1 and 2 of construction for the PROJECT. If WSDOT requests

additional funds from the Port in the future, a written amendment to this Agreement

authorizing a contribution increase must be mutually agreed upon, and subject to

Port Commission approval.

2.4 The Port shall make two payments as follows:

1. The first payment of fifteen million dollars ($15m) shall occur after WSDOT has

made progress payments to the contractor for the completion of Stage 1b, or

fifteen million dollars ($15m) of the eligible construction costs of Stage 1b and in

either case, no earlier than December 2023.

2. The second payment of fifteen million dollars ($15m) shall occur after WSDOT

has made progress payments to the contractor for the completion of Stage 2, or

payments totaling at least thirty million dollars ($30m) of the construction contract

of the entire SR 509 Stage 1b and Stage 2 project components, and in either

case no sooner than December 2029.

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3. Modifications to funding or scope of the projects and amendment

3.1 The Parties may adjust the Port’s contributions to the project under Section 2 by

written amendment reflecting changes to the Port’s timing and contribution. In fulfilling

its obligations under this Agreement, the Port will at times retain its duty to act in the

best interests of the Port.

3.2 Either Party may request changes to the provisions contained in this Agreement. Such

changes shall be mutually agreed upon and incorporated by written amendment to this

Agreement. No variation or alteration of the terms of this Agreement shall be valid

unless made in writing and signed by authorized representatives of the Parties hereto.

4. Contract Administration

4.1 The Parties do not by this Agreement create any separate legal or administrative

entity. The Secretary of Transportation or his designee and Port of Seattle Executive

Director, or his designee shall be responsible for working with each other to

administer the terms of this Agreement. The Parties do not intend to jointly own any

real or personal property as part of this undertaking. The Parties will cooperatively

work together to further the intent and purpose of this Agreement.

5. Dispute Resolution

5.1 In the event that a dispute arises under this Agreement, it shall be resolved as

follows: The Parties shall each appoint a member to a disputes board; these two

members shall select a third board member not affiliated with either Party. The

three-member board shall conduct a dispute resolution hearing that shall be informal

and unrecorded. An attempt at such dispute resolution in compliance with the

aforesaid process shall be a prerequisite to the filing of any litigation concerning the

dispute. The Parties shall equally share in the cost of the third disputes board

member; however, each Party shall be responsible for their own costs and fees.

6. Indemnification

6.1 To the extent permitted by law, WSDOT and the Port shall protect, defend, indemnify,

and save harmless each other, their respective officers, officials, employees, and

agents, while acting within the scope of their employment as such, from any and all

costs, claims, judgment, and/or awards of damages, arising out of, or in any way

resulting from, Indemnifying Party’s negligent acts or omissions. Neither WSDOT nor

the Port will be required to indemnify, defend, or save harmless each other if the

claim, suit, or action for injuries, death, or damages is caused by the sole negligence

of the other party. Where such claims, suits, or actions result from concurrent

negligence of WSDOT and the Port, the indemnity provisions provided herein shall

be valid and enforceable only to the extent of WSDOT’s or the Port’s own

negligence. WSDOT and the Port agree that their respective obligations under this

subsection extend to any claim, demand, and/or cause of action brought by, or on

behalf of, any of its employees or agents. For this purpose, WSDOT and the Port, by

mutual negotiation, hereby waive, with respect to the other party only, any immunity

that would otherwise be available against such claims under the industrial insurance

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provisions of Title 51 RCW. In the event that WSDOT or the Port incurs any

judgment, award, and/or cost arising therefrom, including attorneys’ fees, to enforce

the provisions of this section, all such fees, expenses, and costs shall be recoverable

by the prevailing party. This indemnification shall survive the termination of this

Agreement.

7. Venue

7.1 In the event that either Party deems it necessary to institute legal action or

proceedings to enforce any right or obligation under this Agreement, the Parties

hereto agree that any such action or proceedings shall be brought in Thurston

County Superior Court. Further, the Parties agree that each will be solely responsible

for payment of their own attorneys’ fees, witness fees, and costs.

8. Contacts and Notices

8.1 Contact between the Parties, including but not limited to invoicing, agreement

administration, and notices will be directed to the below identified contacts as follows

or his/her designee or such other addresses as either Party may, from time to time,

designate in writing:

________________________

Geraldine Poor

Regional Transportation

Manager

Port of Seattle

PO Box 1209

Seattle, WA 98111

WSDOT Project Manager shall be:

Steve Fuchs OR Andrey Chepel

PO Box 47440 OR 999 3

Ave Ste 2200

Olympia, WA 98503 OR Seattle, WA 98104

Phone (360) 357-2623 OR (360) 805-2978

Email: fuchss@wsdot.wa.gov OR

ChepelA@wsdot.wa.gov

9. Amendment

9.1 This Agreement may be amended or modified only by the mutual agreement of the

Parties. Such amendments or modifications shall not be binding unless they are in

writing and signed by persons authorized to bind each of the Parties.

10. Severability

10.1 Should any clause, phrase, sentence or paragraph of this Agreement or its

application be declared invalid or void by a court of competent jurisdiction, the

remaining provisions of this Agreement or its applications of those provisions not so

declared shall remain in full force and effect.

11. No Third-Party Beneficiaries

11.1 This Agreement is executed for the sole and exclusive benefit of the signatory

Parties. Nothing in this Agreement, whether expressed or implied, is intended to

confer any right, remedy or other entitlement upon any person other than the Parties

hereto, nor is anything in this Agreement intended to relieve or discharge the

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obligation or liability of any third-party, nor shall any provision herein give any

third-party any right of action against any party hereto.

12. Audits/Records:

12.1 All records for the PROJECT in support of all costs incurred shall be maintained by

WSDOT for a period of six (6) years following final payment by the Port to WSDOT.

The Port shall have full access to and right to examine said records, during normal

business hours and as often as it deems necessary. Should the Port require copies of

any records, it agrees to pay the costs thereof. The Parties agree that the work

performed herein is subject to audit by either or both Parties and/or their designated

representatives, and/or the federal/state government.

13. Signature Authority

13.1 The Port of Seattle Executive Director, Steve Metruck, was authorized to execute this

agreement by Resolution No. ______ adopted by the Port of Seattle Commission on

the 10th day of December, 2019, at a regularly scheduled meeting.

14. Recording

14.1 The will record a copy of this Agreement in the Office of the County

Auditor as provided by law.

15. Working Days

15.1 Working days for this Agreement are defined as Monday through Friday, excluding

Washington State furlough days or state holidays pursuant to RCW 1.16.050.

In Witness Whereof, the Parties hereto have executed this Agreement as of the date last written

below.

Port of Seattle Washington State

Department of Transportation

By__________________________ By ________________________________

Date: ________________________ Date: _____________________________

Approved as to Form Approved as to Form

By____________________________ By ____________________________

Assistant Attorney General

Date: __________________________ Date: _________________________