Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

Item No. 8c – attach 1

Meeting Date: March 24, 2020

DRAFT

2/25/2020

INTERLOCAL AGREEMENT BETWEEN THE PORT OF SEATTLE AND THE WASHINGTON STATE

DEPARTMENT OF NATURAL RESOURCES REGARDING THE SMITH COVE BLUE CARBON PILOT

PROJECT

This Interlocal Agreement is entered into between the Port of Seattle (Port), a municipal

corporation of the State of Washington, and the Washington State Department of Natural

Resources (DNR), a department of the State of Washington, collectively known as the “Parties”

pursuant to Interlocal Cooperation Act, Chap. 39.34 RCW.

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 environmental

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 DNR has legal authority to conduct research into water quality and wildlife habitat;

WHEREAS, the Parties share common interests in promoting fish and wildlife habitat restoration,

carbon sequestration, and water quality improvement in Puget Sound;

WHEREAS, the Port has taken steps to enhance, create and/or restore bull kelp, eelgrass and

Olympia oyster beds in Smith Cove at the north end of Elliott Bay for the purposes of evaluating

carbon sequestration, habitat restoration and water quality improvement potential associated

with ‘blue carbon’ features;

WHEREAS, the DNR has co-located water quality sensors at Smith Cove for the purposes of

evaluating changes in seawater chemistry, shellfish growth, and eelgrass productivity, and

included the site as part of the Puget Sound-wide “Acidification Nearshore Monitoring Network”

(ANEMONE);

WHEREAS, the Port of Seattle Commission’s Energy & Sustainability Committee desires the Port to

conduct a three-year monitoring study related to carbon sequestration, shellfish growth/survival,

eelgrass productivity and water quality (“Monitoring Project”);

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

WHEREAS, the Parties would like to enter into a three-year agreement to use the secured funding

to support water quality assessment, biological assessment from DNR’s Aquatic Assessment and

Monitoring Team, to undertake key elements of the monitoring study;

NOW, THEREFORE, in exchange for the consideration described in this agreement, the parties

agree as follows:

I. BACKGROUND

Smith Cove is located on Port-owned aquatic lands as depicted in the map attached as Exhibit A.

The site is the location of the Smith Cove Blue Carbon Pilot Project, which includes specific habitat

restoration treatments undertaken to evaluate potential benefits including carbon sequestration,

water quality (amelioration of seawater acidification), and habitat productivity. These treatments

include installation of bull kelp, eelgrass and Olympia oyster beds. Following installation, the Port

of Seattle aspires to measure potential benefits in and around the site for a period of not less than

three years, including residents as part of a community-based science initiative to the extent

practicable. The Parties will collaborate to implement this Monitoring Project and community-

based science initiative as outlined below.

II. RESPONSIBILITIES OF THE DEPARTMENT OF NATURAL RESOURCES

1. DNR shall dedicate 50% of a Natural Resource Scientist II position to the Monitoring Project

for a period of three years;

2. DNR shall undertake the pH monitoring, larval settlement tiles and shellfish survival and

growth tasks detailed in the Final Monitoring Plan,

3. DNR shall continue to include the Smith Cove project site in the State’s Acidification

Nearshore Monitoring Network (ANEMONE), including necessary installation, maintenance

and monitoring of water quality sensors;

4. DNR shall incorporate ANEMONE volunteer participation into a Community-Based Science

Plan and implement the plan to involve Port fence-line communities in the monitoring

project;

5. DNR will be responsible for repairs to water quality sensors and other ANEMONE

equipment required for implementation of the Monitoring Project;

6. DNR shall make water quality and biological data collected from ANEMONE available to the

port and members of port fence-line communities;

7. DNR shall generate a final report due three years from execution of this agreement

summarizing the water quality and biological data findings.

III. RESPONSIBILITIES OF THE PORT

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

1. The Port of Seattle will provide $163,500 in funding to DNR to support a Natural Resource

Scientist II position to conduct the tasks described in Section II. The DNR will invoice the

Port for these funds to be paid in quarterly disbursements throughout the effective period

of this agreement.

2. The Port of Seattle will provide access to the Monitoring Project site and will coordinate

with designated DNR personnel for use of Port equipment, including:

a. Access to the Terminal 91 boathouse for storage of sampling equipment and gear;

b. All file materials and data which may be germane to the Monitoring Project.

IV. BUDGET

The total budget for this project is $163,500 to support the tasks described above. DNR and the

Port may obtain additional funding as needed to support their own activities in connection with

the Monitoring Project. DNR will manage the budge for the project and will provide quarterly

updates to the Port.

V. 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. "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 for such other Party to perform its obligations under this Agreement.

VI. TERM OF THIS AGREEMENT

This Agreement is intended to be effective on February 1, 2020, or upon the signature of the three

Parties, whichever event occurs last, for a term of three years.

VII. DISPUTE RESOLUTION

Any disputes or questions of interpretation of this Agreement that may arise between the Port and

DNR shall be governed under these Dispute Resolution provisions. The Port and DNR agree that

cooperation and communication are essential to resolving issues efficiently. If disputes about the

implementation of this Agreement arise, the Managing Director of the Maritime Division for the

Port of Seattle and the Aquatics Division for DNR shall meet to discuss and attempt to resolve the

dispute in a timely manner. If the DNR and the Managing Director are unable to resolve the dispute,

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

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

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.

VIII. INDEMNIFICATION AND HOLD HARMLESS

To the extent permitted by law, DNR will protect, defend, indemnify, and hold harmless the Port,

its officers, employees and agents from any and all costs, claims, judgments, or awards of damages

arising out of or in any way resulting from the negligent or intentional acts or omissions of the

Port, its officers, employees, or agents. DNR agrees that the obligation to indemnify, defend, and

hold harmless the Port and its agents and employees under this provision extends to any claim,

demand or cause of action brought by or on behalf of any employee of DNR against the Port, its

officers, agents, or employees and includes any judgment, award and cost arising therefrom,

including attorneys’ fees that may arise under the execution of this agreement. For this purpose,

DNR hereby waives, with respect to the Port 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 the Port 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 DNR to the extent of DNR’s culpability. This

indemnification shall survive the termination of this Agreement.

IX. DISCRIMINATION

The Port hereby certifies that it is an equal opportunity employer and has developed and

implemented affirmative action policies pursuant to Port of Seattle Resolution #3628, paragraph

16 and other policies and procedures of the Port of Seattle. The three parties agree that they will

not discriminate against any employee or applicant for employment because of race, color,

religion, sex, national origin, marital status, or disability. The three parties agree that they will take

affirmative action to ensure that all employment actions are without regard to race, color, religion,

sex, national origin, marital status or disability. Such action includes but is not limited to

employment, upgrading, layoff, or termination, rates of pay or other forms of compensation, or

selection for training, including apprenticeship.

X. NOTICES

All notices to the parties under terms of this Agreement, unless otherwise specified herein, or as

may be amended, shall be in writing, addressed as follows:

Department of Natural Resources Port of Seattle

c/o Cinde Donoghue c/o Jon Sloan

Aquatic Assessment and Monitoring Team Maritime Environment & Sustainability

1111 Washington St SE, 3

floor 2711 Alaskan Way

Olympia, WA 98504 Seattle, WA 98121

XI. ENTIRE AGREEMENT

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

This Agreement is intended to express the entire agreement of the Parties and may not be altered

or modified in any way unless such modification is reduced to writing, signed by both parties, and

affixed to this original Agreement.

XII. RIGHTS AND REMEDIES

The rights and remedies of the parties to this Agreement are in addition to any other rights and

remedies provided by law except as otherwise provided in this Agreement.

XIII. ASSIGNMENT

The parties will not assign, transfer, or otherwise substitute its obligations under the Agreement

without the prior written consent of the other parties. Any assignment made in violation of this

provision will be null and void and confer no rights whatsoever on any person.

XIV. ADDITIONAL SERVICES, MODIFICATION, AND TERMINATION

The parties may negotiate additional and non-standard services, which must be agreed to in

writing prior to implementation.

Any modifications to this Agreement may be modified by the mutual agreement of the parties

under the same formalities with which this Agreement was executed and must be in writing.

Either party may terminate this Agreement upon written notice to the other Party, in which case a

refund of the amount anticipated into the Section III above in an amount commensurate to the

work performed shall be due to the Port within 30 days of receipt of a request for payment.

XV. APPLICABLE LAWS AND VENUE

This Agreement will be governed by, and construed and enforced in accordance with, the laws of

the State of Washington. Any legal action brought resulting from this Agreement shall be brought

in the Superior Court of King County, Washington.

XVI. 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 and each other term,

covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted

by law.

XVII. 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.

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

XVIII. 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.

XIX. 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 DNR, their officers or elected

officials, or any person.

XX. COUNTERPARTS

The Parties may execute this Agreement in counterparts, which, taken together, constitute the

entire Agreement.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year

set forth below their signatures.

STATE OF WASHINGTON

DEPARTMENT OF NATURAL RESOURCES PORT OF SEATTLE

_____________________________________ ___________________________________

Signature Signature

_____________________________________ ___________________________________

Printed Name Printed Name

_____________________________________ ___________________________________

Title Title

_____________________________________ ___________________________________

Date Date

Approved as to form: Approved as to form:

Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources – Smith Cove Blue Carbon Pilot Project

Assistant Attorney General Attorney for Port of Seattle