DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

Interlocal Agreement

University of Washington and the Port of Seattle

BIO-BARGE PILOT STUDY

This Agreement is made and entered into by the State of Washington, through the University of

Washington (“UW”), an institution of higher education and an agency of the State of

Washington, with its principal campus located in Seattle, Washington, USA, and the Port of

Seattle (“Port”), a municipal corporation of the State of Washington, collectively referred to as

the “Parties.”

RECITALS

WHEREAS, Chapter 39.34 RCW authorizes government entities to contract to perform any

governmental service, activity, or undertaking which each public agency entering into the

contract is authorized by law to perform;

WHEREAS, the Port has legal authority to evaluate different methods of mitigating wetland

impacts associated with operation of its facilities and meeting its Century Agenda goal to create,

restore or enhance forty additional acres of habitat in the Green-Duwamish Watershed and

Elliott Bay, as per the Motion of the Port of Seattle Commission dated December 4, 2012.

WHEREAS, the UW has legal authority to conduct research into water quality and fish habitat;

WHEREAS, the Port and UW have entered into a research partnership and associated property

Access Agreement, Attachment A, related to the Bio-Barge Pilot Study, which assessed the

effectiveness of floating wetland islands, a.k.a. Bio-Barges, to improve water quality and fish

habitat in the Duwamish River;

WHEREAS, the Port and UW collaborated to provide biological monitoring and water quality

sampling associated with the first generation of bio-barge prototypes that were deployed in

brackish water environments in the Lower Duwamish River at Terminal 105 and Terminal 108

from March 2019 to July 2019;

WHEREAS, the UW implemented a Water Quality Monitoring Plan, Attachment B, as directed

by Professor Nancy Rottle of the Green Futures Research & Design Lab and collected data

related bio-barge performance during the 2019 field research season;

WHEREAS, the Port has designed and installed second generation prototypes for study during

the upcoming 2020 field research season commencing in March 2020 in freshwater

environments at Fisherman’s Terminal and the Maritime Industrial Center on the Lake

Washington Ship Canal, in parallel with UW-sponsored re-deployment of the original prototypes

at new locations in the Lower Duwamish Waterway;

WHEREAS, the Port has previously issued the UW a license to conduct research on Port-

owned property in the Lower Duwamish Waterway (Attachment A);

WHEREAS, the Port and UW intend to update the Access Agreement to allow for continued

research at new locations on Port-owned and Port-managed property in the Lower Duwamish

Waterway, Lake Washington Ship Canal, and Salmon Bay for the 2020 field research season;

DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

WHEREAS, the Port desires to engage the UW to provide data and analysis related to the

deployment of the first-generation prototypes, along with an updated Water Quality Monitoring

Plan, with the intent to optimize the design and performance of second-generation freshwater

prototypes;

NOW, THEREFORE, the Parties agree as follows:

TERMS AND CONDITIONS

Roles and Responsibilities of the Parties

1. Port of Seattle: The Port of Seattle shall:

a) Transmit $35,000 in a lump-sum payment to UW Green Futures Research & Design Lab

following transmittal by UW of water quality data, videographic data, laboratory reports,

analysis conducted to evaluate year 1 of the Bio-Barge research project, and Water

Quality Monitoring Plan for study of the freshwater components of the project in year 2;

b) Facilitate site visits for UW staff, students and community members to Port study sites at

Fisherman’s Terminal, Maritime Industrial Center, and other Port-owned and Port-

managed sites as identified through separate site access agreements;

c) Attend periodic meetings between Port professional staff and representatives of the UW

Green Futures Research and Design Lab to review and comment on presentations and

deliverables related to the freshwater portion of the research project.

d) Provide reasonable access to an environmental vessel and operator, as well as other

equipment and staff support needed to undertake the Duwamish Bio-Barge Research

Project (exclusive of laboratory analytical services).

e) Transmit $10,000 in a lump-sum payment to UW Green Futures Research & Design Lab

to incorporate community scientists into monitoring processes for year Two of the

Duwamish Bio-barge research project subsequent to the Port’s approval of a scope of

work for the outreach and upon receipt of quarterly invoices for work performed.

2. University of Washington: The UW shall:

a) Provide processed water quality data, videographic data, analysis, research findings and

laboratory reports related to year 1 of the Bio-Barge research project to the Port, with

emphasis on optimizing design and performance of freshwater bio-barge prototypes

b) Update the Water Quality Monitoring Plan to be specific to the freshwater portion of the

research project;

c) Remove, rehabilitate and replace (if necessary) original first-generation bio-barge

prototypes at Terminal 102; and,

d) Provide a plan for engaging Duwamish Valley residents and other community members

to support data collection during field research to be undertaken in 2020. The plan will

include who will be engaged, method of engagement, and frequency of community

involvement events.

DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

3. Budget. The total budget for this Project is $45,000. The Port will contribute $45,000 and

UW may add scope to the project through funding provided by grants from the Rose

Foundation and the King County Wastewater Treatment Division. UW will manage the

budget for this project and provide quarterly updates to the Port.

4. Property. Upon termination of this Agreement, each Party will retain ownership of any real

or personal property acquired in its own name prior to execution of this Agreement. Upon

execution of this Agreement, the Port and UW shall negotiate an updated Access

Agreement to conduct research at Port-owned and Port-managed locations in the Lower

Duwamish Waterway, Lake Washington Ship Canal, and Salmon Bay.

4.1 Background Intellectual Property. "Background IP" means all intellectual

property that: (i) was owned or developed by a Party prior to the execution of this

Agreement; or (ii) was independently developed by a Party without contribution,

assistance or influence from the other party to this Agreement. Each Party will retain all

rights, title and interest in their respective Background IP. Each Party hereby grants to

the other Party a non-exclusive, nontransferable, paid-up, worldwide, royalty-free license

under its Background IP as may be necessary (i) for such other Party to perform its

obligations under this Agreement; or (ii) for such other Party to practice rights to the Joint

IP described below in Section 4.2.

4.2 Joint Intellectual Property. “Joint IP” means all intellectual property that is

developed jointly by the Parties under this Agreement. Each Party will have the right,

subject to this Agreement and applicable law, to make, have made, use, offer to sell,

sell, import, publicly display and publicly perform Joint IP and freely exercise, transfer,

assign, license, encumber, and enforce all of its rights in the Joint IP without the

consent, joinder, or participation of, or payment or accounting, to the other Party. By

mutual agreement, the Parties shall identify which Party shall file patent applications,

trademark applications, or any other intellectual property filing for any Joint IP.

5. Additional Services: The Parties can negotiate additional and non-standard services.

These services must be agreed to in writing prior to implementation.

6. Termination of Agreement: Either Party may terminate this Agreement upon thirty days

written notice to the other Party.

7. Dispute Resolution: Any disputes or questions of interpretation of this Agreement that may

arise between the Port and UW shall be governed under these Dispute Resolution provisions.

The Port and UW agree that cooperation and communication are essential to resolving issues

efficiently. If disputes about the implementation of this Agreement arise, the designated

contact persons for the Port and UW shall meet to discuss the issues and attempt to resolve

the dispute in a timely manner. If the designated contact persons are unable to resolve the

dispute, then the Parties may pursue any legal remedies. At all times prior to resolution of the

dispute, the Parties shall continue to perform and make any required payments under this

Agreement in the same manner and under the same terms as existed prior to the dispute.

DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

8. Term of Agreement: The term of this Agreement shall run until one year from the date on

which this Agreement has been executed by both Parties. The Parties may extend this

agreement for an additional one-year term by mutual written agreement.

9. Indemnification: To the maximum extent allowed by law, the Parties shall protect, defend,

indemnify, and save harmless each other, their officers, officials, employees, and agents,

while acting within the scope of their employment, from any and all costs, claims, judgments,

penalties, and/or awards of damages, arising out of or in any way resulting from the Parties’

own negligent acts or omissions in connection with performance of activities under the terms

of this Agreement. Each Party agrees that its obligations under this provision 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, each Party, by mutual negotiation, hereby waives, with respect to

the other Party only, any immunity that would otherwise be available against such claims

under the Industrial Insurance provisions of Title 51 Revised Code of Washington (RCW). In

the event that a Party incurs any judgment, award, and/or cost arising there from, including

attorneys' fees, to enforce the provisions of this Article, all such fees, expenses, and costs

shall be recoverable from the responsible Party to the extent of that Party's culpability. This

indemnification shall survive the termination of this Agreement.

10. Notification: Any notice required or permitted to be given pursuant to this Agreement shall

be in writing, and shall be sent by U.S. Mail and by email (with telephonic confirmation), to

the following addresses unless otherwise indicated by the Parties to this Agreement:

For the UW: Nancy Rottle Copy to: University of Washington

University of Washington Office of Sponsored Programs

Seattle, WA 98195 4333 Brooklyn Ave NE, Box 359472

Seattle, WA 98195-9472

osp@uw.edu

For the Port: Jon Sloan

Port of Seattle

2711 Alaska Way

Seattle, WA 98122

11. Amendment: Either Party may request changes to the provisions contained in this

Agreement. Any change to this Agreement must be mutually agreed to by both Parties, in

writing and executed with the same formalities as the original Agreement.

12. Applicable Law: This Agreement shall be governed by and construed in accordance with

the laws of the State of Washington.

13. Jurisdiction and Venue: The King County Superior Court in Seattle, Washington shall have

exclusive jurisdiction and venue over any legal action arising under this Agreement.

14. Severability: If any court determines that any provision of this Agreement is invalid or

unenforceable to any extent, the remainder of the Agreement shall not be affected thereby

DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

and each other term, covenant or condition of this Agreement shall be valid and enforced to

the fullest extent permitted by law.

15. Waiver of Default: Waiver of any default by either Party shall not be deemed to be a waiver

of any subsequent default. Waiver of breach of any provision of this Agreement shall not be

deemed to be a waiver of any other or subsequent breach. Waiver of any default or breach

shall be interpreted or construed to constitute a modification of the terms of this Agreement,

unless so stated in writing and signed by both Parties.

16. Entire Agreement: This Agreement and the Exhibits attached hereto, and by this reference

incorporated herein, set forth the entire Agreement of the UW and the Port, and there are no

other agreements or understandings, oral or written, between the UW and the Port

concerning this Agreement.

17. Mutual Negotiation: The Parties agree that the terms and provisions of this Agreement

have been negotiated, that the Agreement shall be deemed to be mutually negotiated and

mutually drafted by both Parties, and the language in the Agreement and Exhibits shall, in

all respects, be construed according to its fair meaning and not strictly for or against either

Party.

18. Legal Obligations. This Agreement does not relieve either Party of any obligation or

responsibility imposed upon it by law. No third-party beneficiaries are intended to be

created by this Agreement and no third party, by law or equity, may enforce this Agreement

against the Port or UW, their officers or elected officials, or any person.

19. Counterparts: The Parties may execute this Agreement in counterparts, which, taken

together, constitute the entire Agreement.

Port of Seattle: University of Washington:

___________________________________ __________________________________

Signature Signature

___________________________________ __________________________________

Printed Name Printed Name

___________________________________ __________________________________

Title Title

___________________________________ __________________________________

Date Date

DRAFT INTERLOCAL AGREEMENT: UNIVERSITY OF WASHINGTON GREEN FUTURES LAB 1/22/2020

Approved as to Form Approved as to Form

____________________________ ____________________________

Attorney for Port of Seattle UW Attorney