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

DNR Agreement # 93-107793

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, which includes a

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 the Puget Sound area;

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

marine carbon sequestration, habitat restoration and water quality improvement potential

associated with these enhancements;

WHEREAS, 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 thus included the

site as part of the Puget Sound-wide “Acidification Nearshore Monitoring Network” (ANEMONE);

WHEREAS, the Port and DNR previously entered into an Interlocal Agreement (ILA) (DNR #93-

100877) to conduct a three-year monitoring study related to carbon sequestration, shellfish

growth/survival, eelgrass productivity, and water quality, which ILA is now expired;

WHEREAS, the Port of Seattle Commission’s Energy & Sustainability Committee would like the Port

to conduct a five-year monitoring to conduct eelgrass, kelp and sediment carbon monitoring data

collection (“Monitoring Project”);

Agenda Item: 8g_attach

Meeting Date: September 10, 2024

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

DNR Agreement # 93-107793

WHEREAS, the Parties would like to enter into a five-year agreement to support eelgrass, kelp and

sediment carbon monitoring with DNR’s Aquatic Assessment and Monitoring Team undertaking

key elements of this Monitoring Project;

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 Monitoring Project, which included specific habitat restoration

treatments undertaken between the years of 2018 to 2022 to evaluate potential benefits,

including carbon sequestration, water quality (amelioration of seawater acidification) and habitat

productivity. These treatments included installation of bull kelp, eelgrass and Olympia oyster

beds. Following installation, the Port measured potential benefits in and around the site for three

years. At the conclusion of the three-year monitoring period, the Parties evaluated the results

and developed a plan for on-going monitoring at the site. The Parties will collaborate to

implement this Monitoring Project as outlined below.

II. RESPONSIBILITIES OF THE DEPARTMENT OF NATURAL RESOURCES

1. DNR shall dedicate staff time (approximately 435 hours annually) of a Natural Resource

Scientist I, III, and IV for the duration of this Monitoring Project. DNR staff time

dedicated to this Monitoring Project must be sufficient, as agreed to by both Parties in

writing, in order to fulfill the DNR responsibilities identified in this Section II.

2. DNR shall continue to include the Smith Cove project site in the ANEMONE array, which

means there will be necessary installation, maintenance and monitoring of water

quality sensors;

3. DNR shall incorporate ANEMONE volunteer participation into a community-based

science plan and implement this plan with the goal of involving communities identified

by the Port in the Monitoring Project;

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

equipment required for implementation of the Monitoring Project;

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

the Port and members of communities identified by the Port;

6. DNR shall undertake the collection of sediments for assessing sediment carbon

sequestration;

7. DNR will be responsible for the processing of sediment samples to assess carbon

sequestration;

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

DNR Agreement # 93-107793

8. DNR shall undertake the monitoring of sediment accretions and surface sediment

properties;

9. DNR shall undertake vegetation surveys in the intertidal area within Smith Cove;

10. DNR shall generate a final report due five years from execution of this Agreement, prior

to this Agreement's expiration date, summarizing the carbon sequestration and

biological data findings.

III. RESPONSIBILITIES OF THE PORT

1. The Port will provide a not-to-exceed total of $ 227,000 in funding, which includes a 10

percent contingency fund, to DNR to conduct the tasks described in Section II. DNR will

invoice the Port for these funds to be paid in quarterly disbursements upon completion of

work identified in the invoice throughout the effective period of this Agreement.

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

designated DNR personnel for temporary use of Port equipment for purposes of carrying

out the Monitoring Project under this Agreement, including:

a. Access to the Terminal 91 boathouse for storage of DNR’s sampling equipment and

gear;

b. Ability to travel by means of the Port’s boat which must be captained by Port staff

c. All file materials and data which may be germane to the Monitoring Project, as

determined by both Parties in writing.

3. The Port will cooperate with DNR to identify communities participating in community-

based science initiatives.

IV. BUDGET

The total budget for this Agreement is $ 227,000, which funding will be used to support the tasks

described in Sections II and III above. DNR and the Port may obtain additional funding as needed

to support their own activities in connection with the Monitoring Project, that funding will not be

included in the total under this Agreement unless agreed to by both Parties in writing by an

executed amendment. DNR will manage the budget for the project and will provide quarterly

updates to the Port.

The Parties designate the following representatives for coordinating administrative tasks (such as

budget and invoicing) and transmittal of deliverables as described in Exhibit B, Anticipated

Schedule of Tasks and Deliverables, and any notices required by this Agreement:

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

DNR Agreement # 93-107793

DNR:

Washington State Department of Natural Resources

c/o Rachel Skubel (Rachel.Skubel@dnr.wa.gov)

Aquatic Assessment and Monitoring Team

1111 Washington St. SE

Olympia, WA 98504

Port:

Port of Seattle

c/o Kathleen Hurley (Hurley.K@portseattle.org)

Maritime Environment and Sustainability

2711 Alaskan Way

Seattle, WA 98121

Any updates to the identity of the designated representative will be provided in writing by an

executed amendment to the individual identified above.

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 September 30, 2024, or upon the final signature of

the two Parties, whichever event occurs last, for a term of five years from the date of final

signature.

VII. DISPUTE RESOLUTION

Any disputes 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 and the Aquatics Division Manager for DNR

shall meet to discuss and attempt to resolve the dispute in a timely manner. If the DNR’s Aquatics

Division Manager and the Port’s Managing Director are unable to resolve the dispute, then the

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

DNR Agreement # 93-107793

Parties are free to 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.

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 acts or omissions of DNR, 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, 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). 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. The two 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 two 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.

NONDISCRIMINATION.

a. Nondiscriminaon Requirement. During the term of this Contract, CONTRACTOR, including

any subcontractor, shall not discriminate on the bases enumerated at RCW 49.60.530(3). In

addion, CONTRACTOR, including any subcontractor, shall give wrien noce of this

nondiscriminaon requirement to any labor organizaons with which CONTRACTOR, or

subcontractor, has a collecve bargaining or other agreement.

b. Obligaon to Cooperate. CONTRACTOR, including any subcontractor, shall cooperate and

comply with any Washington state agency invesgaon regarding any allegaon that

CONTRACTOR, including any subcontractor, has engaged in discriminaon prohibited by this

Contract pursuant to RCW 49.60.530(3).

c. Default. Notwithstanding any provision to the contrary, DNR may suspend CONTRACTOR,

including any subcontractor, upon noce of a failure to parcipate and cooperate with any

state agency invesgaon into alleged discriminaon prohibited by this Contract, pursuant

to RCW 49.60.530(3). Any such suspension will remain in place unl DNR receives

noﬁcaon that CONTRACTOR, including any subcontractor, is cooperang with the

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

DNR Agreement # 93-107793

invesgang state agency. In the event CONTRACTOR, or subcontractor, is determined to

have engaged in discriminaon idenﬁed at RCW 49.60.530(3), DNR may terminate this

Contract in whole or in part, and CONTRACTOR, subcontractor, or both, may be referred for

debarment as provided in RCW 39.26.200. CONTRACTOR or subcontractor may be given a

reasonable me in which to cure this noncompliance, including implemenng condions

consistent with any court-ordered injuncve relief or selement agreement.

d. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of

Contract terminaon or suspension for engaging in discriminaon, CONTRACTOR,

subcontractor, or both, shall be liable for contract damages as authorized by law including,

but not limited to, any cost diﬀerence between the original contract and the replacement

or cover contract and all administrave costs directly related to the replacement contract,

which damages are disnct from any penales imposed under Chapter 49.60, RCW. DNR

shall have the right to deduct from any monies due to CONTRACTOR or subcontractor, or

that thereaer become due, an amount for damages CONTRACTOR or subcontractor will

owe DNR for default under this provision.

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 Rachel Skubel c/o Kathleen Hurley

Aquatic Assessment and Monitoring Team Maritime Environment & Sustainability

1111 Washington St SE 2711 Alaskan Way

Olympia, WA 98504 Seattle, WA 98121

XI. ENTIRE AGREEMENT

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.

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

DNR Agreement # 93-107793

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

DNR shall promptly transmit a final invoice for work not previously invoiced and the Port’s

payment shall be due to the DNR 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 Thurston 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.

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.

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

DNR Agreement # 93-107793

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 PORT OF SEATTLE

DEPARTMENT OF NATURAL RESOURCES

_____________________________________ ___________________________________

Signature Signature

Katie Allen ____________________________ ___________________________________

Printed Name Printed Name

_____________________________________ ___________________________________

Acting Deputy Supervisor of Forest Resilience, Title

Regulation, and Aquatics

_____________________________________ ___________________________________

Date Date

Exhibit A

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

DNR Agreement # 93-107793

Exhibit A

Exhibit B

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

DNR Agreement # 93-107793

Anticipated Schedule, Tasks, and Budget (2024-2029). In addition to the annual budget below, the

contract includes a contingency fund of 29,078.51, leading to a total of 227,000.

Year

Season

Tasks performed by DNR

Annual Budget

Summer 2024

Logistics

2024: 12,915

Fall 2024

Logistics

Spring 2025

• Surface sediment collecon (Eelgrass [EG]

bed)

• Sediment accreon rate (rods, EG bed)

•

Vegetaon survey (Interdal)

2025: 27,064

Summer 2025

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

• Vegetaon survey (Interdal)

Spring 2026

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

•

Vegetaon survey (Interdal)

2026: 64,739

Summer 2026

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

• Vegetaon survey (Interdal)

• Sediment core collecon and Isotope

accreon rate

Spring 2027

• Surface sediment collecon (EG bed),

• Sediment accreon rate (rods, EG bed)

• Vegetaon survey (Interdal)

2027: 28,684

Summer 2027

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

•

Vegetaon survey (Interdal)

Spring 2028

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

•

Vegetaon survey (Interdal)

2028: 29,531

Summer 2028

• Surface sediment collecon (EG bed)

• Sediment accreon rate (rods, EG bed)

• Vegetaon survey (Interdal)

Spring 2029

• Analysis, Write up

2029: 34,988

Spring 2025-

Spring 2029

• Installaon, Maintenance/repair and

monitoring of water quality sensors.

• Incorporate volunteer parcipaon into a

Community-Based Science Plan