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COMMON INTEREST, COST-SHARING, AND TOLLING AGREEMENT

BY AND BETWEEN THE PORT OF SEATTLE AND THE BOEING COMPANY

This COMMON INTEREST AND COST-SHARING AGREEMENT (this “Agreement”)

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

The Boeing Company (“Boeing”), 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 and

remediate contamination (“Site Contamination”) at and around the property known as Terminal

115 South, which is formerly the site of Boeing Plant 1, located generally at 6000 West Marginal

Way SW in Seattle, Washington 98108 (the “Terminal”);

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

Party (“PLP”) 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

Terminal site (Ecology facility number _______) (the “Site”);

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

prepare a remedial investigation, feasibility study, cleanup action plan, and other tasks required by

that Order (“RI/FS Work”);

WHEREAS, although the Parties specifically deny Ecology’s claims and allegations, they

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;

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

WHEREAS, a Party may have potential claims and causes of action against the other

concerning the Site (“Claims”).

TERMS OF AGREEMENT

NOW THEREFORE, the Parties mutually agree as follows:

1. JOINT DEFENSE AND COMMON INTEREST. The Parties agree to

cooperate with one another to effectuate the purposes of this Agreement. The Parties may, at the

sole option of each, share and exchange intelligence, strategies, research, studies, data, technical

conclusions, confidences, information and or other documents prepared by their respective counsel

concerning legal theories (collectively, “Common Interest Materials”) to advance their

negotiations with Ecology for work required under the Order. Common Interest Materials should

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

Item No. 6f – attach

Meeting Date: June 9, 2020

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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 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 Site, Order or RI/FS Work; (b)

experts or consultants retained by the receiving Party in connection with the Site, Order or RI/FS

Work; (c) employees, officers, directors, executives, or other elected representatives of the

receiving Party who have responsibilities with regard to the Site, Order, or RI/FS 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 Common Interest

Materials 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.

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

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

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not preclude Parties from attempting to obtain disclosure of Common Interest Materials or alter

the obligations, if any, 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/FS Work. The Joint Consultant’s scope of

work to complete the RI/FS Work and a budget for the RI/FS 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/FS Work by unanimous consent. If the Parties fail to reach consensus

within a reasonable time, the Parties may proceed by approval of any two of the Parties.

8.1 CONTRACTING.

(a) Selection. The Port will enter into and oversee contracts with the

Joint Consultant on behalf of the Parties. The Port will follow its regular contracting

procedures to advertise for and select potential consultants except as described

herein. Boeing may participate in interviewing potential consultants. The Parties

shall endeavor in good faith to select a consultant from the pool of applicants by

unanimous consent.

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(b) Billing. The Parties will endeavor in good faith to negotiate the Joint

Consultant’s contract such that the Joint Consultant will submit its invoices both

parties for direct payment of their respective shares of the work. Invoices shall

indicate the total amount due and the 50% share for each Party. In the event that

such an arrangement is not possible or practical, the Joint Consultant will submit

its invoices to the Port, and the Port will provide copies of the Joint Consultant

invoices to Boeing prior to payment of each invoice. The Port will pay each invoice

after receiving authorization from Boeing, provided that any objections to an

invoice must be delivered to the Port in writing within ten (10) calendar days of

receipt of the invoice by the objecting Party. The Port may presume approval of an

invoice if no objection is received within ten (10) calendar days. Boeing will

reimburse the Port for its share of each invoice within sixty (60) days of receiving

such invoice. 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 Port does not agree with the objection

and wishes to pay the invoice in full, Boeing shall reimburse the Port for its share

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 Port 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 receipt

of the original invoice.

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/FS 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 9 shall mean (a) Joint Consultant invoices

approved by both Parties as part of the RI/FS Work; (b) Ecology oversight costs, if any; (c) Port

staff costs associated with procurement and administration of the Joint Consultant contract; and

(d) 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 shall contribute to Shared Costs as follows: (i) Boeing, fifty percent (50%) and (ii) the

Port, fifty percent (50%). The Contribution Percentages in no way reflect any final 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 9 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 9 or elsewhere in the Agreement

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should be construed as an admission of liability by any Party, or to any allocation percentage or

extent.

10. 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 without providing reasonable notice to 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. For avoidance of doubt, a

Party may communicate by e-mail with Ecology regarding routine and uncontroversial Project

implementation details without advance notice to the other Parties, provided that the other Parties

are include in copy in each such e-mail communication.

11. TOLLING AGREEMENT AND COVENANT NOT TO SUE. In consideration

of the mutual undertakings in this Agreement, and unless and until this Agreement is terminated,

each Member, for so long as it remains a Member, covenants not to sue the other Members or their

officers, directors, employees or agents with respect to any claims or liabilities concerning any

costs incurred under this Agreement, as long as the Member against whom a claim could be made

has not withdrawn, except for claims relating to the enforcement of this Agreement or claims for

contribution in defense of third party claims concerning costs incurred or activities performed

under this Agreement. The terms hereof are not intended and shall not be construed to prevent

any Member from pursuing, or as a waiver of, any demand, right, or action that any Member may

have unrelated to costs incurred or activities performed under this Agreement. Any claim or

defense based on the passage of time including, but not limited to, statute of limitations, statute of

repose, estoppel, waiver, laches, or other time-related claim or defense applicable to any Claim

that is not already barred by the passage of time as of the Effective Date shall be and hereby is

tolled as between the Parties, and the period between the Tolling Agreement and withdrawal from

this Agreement will not be included in computing the time relevant to any time-related claim or

defense.

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

(30)-day written notice to the 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/FS Work until completion of the RI/FS 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 would 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.

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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 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 16):

If to the Port of Seattle:

Elizabeth C. Black

Senior Port Counsel

Port of Seattle

Pier 69, 2711 Alaskan Way

P.O. Box 1209

Seattle, WA 98111

Phone: (206) 787-4697

E-mail: black.e@portseattle.org

Copy to:

Roy Kuroiwa

Senior Environmental Program Mgr

Port of Seattle

Pier 69, 2711 Alaskan Way

P.O. Box 1209

Seattle, WA 98111

Phone: (206) 787-3814

E-mail: kuroiwa.roy@portseattle.org

If to Boeing:

Thomas J. Wilcox

Senior Counsel, EHS Law Group

Office of the General Counsel

The Boeing Company

P.O. Box 3707

MC 11-509

Seattle, WA 98124

Copy to:

Joseph L. Flaherty

The Boeing Company

Environmental Remediation

MC 1P-310

Phone: (206) 769-5987

E-mail: joseph.l.flaherty@boeing.com

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Phone: (425) 373-2201

E-mail: thomas.j.wilcox@boeing.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. 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.

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 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.

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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 is effective as of September 1, 2018.

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

as of the date set forth in Paragraph 26 above.

PORT OF SEATTLE

______________________

Stephen P. Metruck

Executive Director

THE BOEING COMPANY

______________________

Thomas J. Wilcox

Senior Counsel, EHS Law Group