4h attach
Item No. 4h_Attach
Date of Meeting: September 11, 2014
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Seattle Public Utilities Real Property Services
Post Office Box 34018
Seattle, WA 98124-4018
Port of Seattle
Real Estate Division
Post Office Box 1209
Seattle WA 98111-1209
STORMWATER EASEMENT AGREEMENT
Reference Nos. of Document Released: None
Grantor: Port of Seattle
Grantee: City of Seattle
Legal Description (abbreviated): Portion of Buckley Donation Claim in Donation Claim
No. 42 in Section 33, Township 24 N, Range 4 E,
Willamette Meridian in King County, WA (complete
legal description in Exhibit B).
Assessor’s Tax Account Number 000160004404
This Easement for the construction, operation, maintenance and monitoring of City-owned
stormwater drainage facilities and outfall is made effective as of the day of ,
2014 (the “Effective Date”) by and between the Port of Seattle (“Port”), a Washington municipal
corporation (“Grantor”), and the City of Seattle (“City”), a Washington municipal corporation,
acting by and through Seattle Public Utilities (“Grantee”) (jointly “the Parties”).
RECITALS
WHEREAS, the Washington Supreme Court, in Commercial Waterway District No. 1 ofKing
County v. Permanente Cement Company, 61 Wn. 2d 509 (1963), ruled that the Commercial
Waterway District No. 1 of King County (“CWD”) was able to control only those uses in the
Duwamish Waterway that would obstruct public navigation or interfere with any right of the
general public; and
WHEREAS, the Port is the successor to the interests of the CWD in certain real property located
in King County, Washington, including the shoreline and submerged lands between River Miles
3.5 and 3.7 on the Lower Duwamish Waterway which constitute a portion of the area now
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known as Terminal 117 (“T117”), and more particularly as noted on EXHIBIT A-1 (the “CWD
Property”); and
WHEREAS, in 2000 the Port purchased in fee certain real property adjacent to the CWD
Property, in the area now known as Terminal 117, and more particularly as noted and described
on EXHIBIT A-1 (the “Fee Property”); and
WHEREAS, on June 9, 2011, the City, the Port and the U.S. Environmental Protection Agency
entered into an Administrative Settlement Agreement and Order on Consent for Removal Action
Implementation (the “Implementation Settlement Agreement”) (CERCLA Docket no. 10-2011-
0089) for the performance of a non-time-critical removal action at an area including Terminal
117 known as the Terminal 117 Early Action Area (“T117 EAA”); and
WHEREAS, the T117 EAA is a 15.2-acre site within the Lower Duwamish Waterway (“LDW”")
Superfund site consisting of the several sub-areas, denominated as the “T117 Sediment Study
Area”, the “T117 Upland Study Area”, the “Adjacent Streets” and the “Residential Yards”, as
depicted in Exhibit A-2 (which document is referenced in the Implementation Settlement
Agreement as Appendix B); and
WHEREAS, pursuant to the Statement of Work of the Implementation Settlement Agreement,
the City is responsible for the project management of the Adjacent Streets and Residential Yards
of the T117 EAA, while the Port is responsible for the project management on the T117
Sediment Study Area and the T117 Upland Study Area; and
WHEREAS, on November 3, 2008, the City and the Port (and other parties) entered into a
Settlement, Indemnity and Release Agreement (the “2008 Indemnity Agreement”) under which
the City agreed to pay 100% of the costs for the cleanup remedy of the Adjacent Streets and
Residential Yards, and 40% of the “T117 costs” as that term is defined in the 2008 Indemnity
Agreement; and
WHEREAS, part of the Adjacent Streets and Residential Yards cleanup remedy consists of the
installation of a stormwater collection and treatment system; and
WHEREAS, the City, specifically Seattle Public Utilities (“SPU”) has analyzed multiple options
for drainage of the rights-of-way, all of which would require an outfall to the LDW, and has
decided to discharge collected treated and untreated stormwater via a stormwater conveyance
system, consisting, in part, of a 18” diameter L.F. HDPE pipeline located in, on and under the
Fee Property, to a new outfall located in, on and under the CWD Property; and
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WHEREAS, it is possible that stormwater discharged from the City’s drainage system could re-
contaminate the CWD Property and/or Fee Property that will have recently undergone cleanup
pursuant to the Implementation Settlement Agreement;
WHEREAS, in the future the Port may construct a habitat mitigation or restoration project at and
adjacent to T117 (the “T117 Habitat Project”), either as a component of a final resolution of
claims brought by the Federal Natural Resource Trustees or for other reasons, and the City’s
construction and operation of stormwater facilities at Terminal 117 has the potential to decrease
the environmental resource value of the T117 Habitat Project; and
WHEREAS, the Parties now desire to enter into an agreement to grant to the City an easement
for the construction, maintenance, monitoring, and replacement of the stormwater facilities,
subject to the terms and conditions set forth in this Easement. The Parties agree the Port can
only grant to the City those rights concerning the CWD Property that the Port is legally entitled
to exercise over the CWD Property. The Parties agree that the City’s consent to the terms and
conditions of this Easement, including the terms and conditions of the Exhibits to this Easement,
is provided as consideration solely for the use of the Fee Property;
NOW, THEREFORE, the Parties agree as follows:
EASEMENTS
Based on foregoing recitals, which are incorporated herein, the Parties enter into the following
easement.
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) The Port grants, conveys and quitclaims to the City a nonexclusive, temporary
easement, subject to the relevant terms and conditions of this agreement, for
access over, upon and under the real property described in Exhibit B-1, for the
purpose of construction staging, access and queuing (the “Construction
Easement”) for the purpose of constructing and installing a stormwater drainage
pipe and outfall.
(b) The Port grants, conveys and quitclaims to the City a nonexclusive easement,
subject to the terms and conditions of this agreement, for access over, upon, and
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under the real property described in Exhibit B-2 for the siting, operation,
maintenance, monitoring and replacement of the stormwater drainage pipe and
outfall (the “Operation Easement”). Exhibit B-3 provides the legal description for
the Operation Easement Property.
(©) In this agreement, the term “Easement” means this agreement and the rights
granted, including both the Construction Easement and the Operation Easement;
the term “Easement Property” means the real property subject to the Easement.
(d) This Easement is subject to all valid interests of third parties; rights of the public;
and treaty rights of Indian Tribes. The City and the Port agree that this Easement
does not authorize the City to exclude third parties or control uses of the
Easement Property to any greater extent than the Port is authorized to do so under
law.
(e) The Parties expressly agree that there is no intent to convey any rights other than
those that are granted in this Easement.
1.2 Survey and Easement Property Descriptions.
(a) The City has prepared Exhibits B-1, B-2 and B-3 (collectively, “Exhibit B”),
which describe the Easement Property. The City warrants that the documents in
Exhibit B are true and accurate descriptions of the Easement Property boundaries
and the improvements to be constructed or already existing on the Easement
Property.
(b) The City shall not rely on any written legal descriptions, surveys, plats, or
diagrams (“‘property description”) provided by the Port. The City shall not rely on
the Port’s approval or acceptance of Exhibit B, or any other Port-provided
property description, as affirmation or agreement that the Exhibits or other
property descriptions are true and accurate.
(c) The Port accepts preliminary Exhibit B upon the Commencement Date of this
Easement (as defined below). If, after construction, the final boundaries and
improvements of the Easement Property differ from the preliminary Exhibit B, the
City shall submit a final Exhibit B for the Port’s approval within sixty (60) days
of the end of the term of the Construction Easement (as defined below). Upon the
Port’s written approval, the final Exhibit B supersedes the preliminary Exhibit B.
Until superseded, the preliminary Exhibit B has full legal effect.
1.3 Condition of Easement Property. The Port makes no representation regarding the
condition of the Easement Property, improvements located on the Easement Property, the
suitability of the Easement Property for the City’s Permitted Use (as defined below), compliance
with governmental laws and regulations, availability of utility rights, access to the Easement
Property, or the existence of hazardous substances on the Easement Property.
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SECTION 2 USE
2.1 Permitted Use. The City shall use the Easement Property for the construction, operation
and maintenance of a stormwater conveyance system and stormwater outfall (the “Permitted
Use”), and for no other purpose. Exhibit C describes the Permitted Use in detail. The Permitted
Use is subject to additional obligations described in Exhibit C.
2.2 Restrictions on Permitted Use and Operations. The following limitations apply to the
Easement Property. The City’s compliance with the following does not limit the City’s liability
under any other provision of this Easement. The City’s use of the Easement Property shall not
cause any of the following, either on the Easement Property itself, or on Affected Aquatic Lands
(as defined below):
(a) Damage to natural resources;
(b) Waste; or
(c) Deposit of material, including deposit of fill, rock, earth, ballast, wood waste,
refuse, garbage, waste matter, pollutants of any type, or other matter. There are
two exceptions to this prohibition: deposits incidental to construction of
Improvements (as defined below) necessary for the Permitted Use; and outfall
discharges authorized by and in compliance with a valid NPDES Permit.
2.3 Conformance with Laws. The City shall keep current and comply with all conditions
and terms of any orders, permits, liceases, certificates, regulations, ordinances, statutes, and
other government rules and regulations regarding its use of the Easement Property.
2.4 Liens and Encumbrances. The City shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use of the Easement Property, unless
expressly authorized by the Port in writing.
2.5 Interference with Other Uses.
(a) The City shall exercise the City’s rights under this Easement in a manner that
minimizes or avoids interference with the rights of the Port, and the rights of the
public or others with valid rights to use or occupy the Easement Property or
surrounding lands and water. Without limiting the foregoing, the City must
ensure that the Port shall retain at least one access route on to the Easement
Property at all times, which route shall be of sufficient width and dimension to
enable the entry and exit of a construction dump truck and trailer from the City
right of way to the Easement Property.
(b) To the fullest extent reasonably possible, the City shall place and construct
Improvements in a manner that allows unobstructed movement in and on the
waters above and around the Easement Property.
(c) The City shall mark the location of any hazards associated with the Permitted
Use and any Improvements (as defined below) in a manner that ensures
reasonable notice to the public.
(d) The City shall not interfere with access by:
(1) Employees and authorized agents of the Environmental Protection Agency
(EPA) and other federal natural resource agencies, the Washington State
Department of Ecology and other state natural resource agencies, local or
state health departments, or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property.
2.6 Amendment Upon Change of Permit Status. The Port reserves the right to amend the
terms and conditions of this Easement whenever any regulatory authority modifies a permit in a
manner affecting the provisions of this Easement or requires a change in the Permitted Use,
including, but not limited to, a change in the type, quality, or quantity of discharge.
2.7 Amendment in Response to Agency Action. The Port reserves the right to amend the
terms and conditions of this Easement whenever a regulatory authority requires that the Port
perform any investigation or conduct any remedial actions on or adjacent to the Easement
Property (except those required by the Implementation Settlement Agreement as of the date of
execution of this Easement Agreement) arising from or related to the Permitted Use, the
Construction Easement or the Operation Easement. In addition, the Port has negotiated the terms
of this Easement Agreement based on its review of the City’s 90% Removal Action Design
Report, the City’s proposed Removal Action Work Plan, and the City’s Long Term Monitoring
and Maintenance Plan as those documents existed on June 5, 2014. The foregoing documents
will be submitted to EPA for approval as indicated in Exhibit C. The Port reserves the right to
amend the terms and conditions of this Easement Agreement based on changes, if any, between
the proposed versions of the foregoing documents reviewed by the Port and the final versions
that are approved by EPA.
SECTION 3 TERM
3.1 Term Defined.
(a) The term of the Construction Easement shall be from the 1* day of March, 2015
and ending on the 1% day of September, 2015, unless extended or modified in
writing by the Port. Any requests for time extension or modification must be
provided to the Port in writing a minimum ofone week prior to the end of the
term. The request should include, among other relevant factors, information
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regarding the nature and location of the proposed activities and the amount of
time requested. The Port shall not unreasonably deny City requests for extension
or modification of the Term; provided however, that it shall not be unreasonable
for the Port to deny a request on the basis that it will interfere with or increase the
cost of constructing the T117 Habitat Project.
(b) The term of the Operation Easement is Thirty (30) years, beginning on the 1* day
of September, 2015 (the “Commencement Date”), and ending on the 1* day of
September, 2045 (the “Termination Date”), unless terminated sooner under the
terms of this Easement.
3.2 Renewal of the Easement.
(a) The City may renew this Easement for two (2) additional terms of thirty
(30) years, i.e. the aggregate shall be no more than ninety (90) years.
(b) The City must file with the Port a written request to renew at least one (1) year
prior to the Termination Date of this Easement or any subsequent renewal of this
Easement, and the Port will respond with denial or consent within ninety (90)
days. Renewal will be effective upon the Port’s written agreement. The Port may
deny the renewal request only if the City is in breach of any material term of this
Easement. The terms and conditions of any renewal term will be the same as this
Easement, except that the Port may charge fees for the renewal term if authorized
by law; require financial security if authorized by law; or modify or add
reasonable terms as provided in this Agreement.
3.3 End of Term. Upon the expiration, cancellation or termination of this Easement (“End
ofTerm”), the City shall remove Improvements in accordance with Section 5, Improvements,
and surrender the Easement Property to the Port restored to a condition substantially like the land
use at T117 as a whole at the time of surrender. If the City fails to restore the Easement
Property, the Port may perform the restoration, and the City shall pay all costs of the Port’s
remedy, including reasonable administrative costs.
SECTION 4 EXPENSES AND PAYMENTS
4.1 Construction and Operation Expenses. The City shall pay all costs related to the
construction, alteration, replacement, operation, maintenance, repair, modification, alteration,
demolition and deconstruction of Improvements (as defined below), including any costs required
pursuant to Section 9.3 and 9.5, and costs related to monitoring of system performance and
monitoring the quality or quantity of stormwater and stormwater solids discharges from the
Improvements.
4.2 Utilities. The City shall pay all fees charged for utilities, if any, in connection with the
Permitted Use.
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4.3 Taxes and Assessments. The City shall pay all taxes, assessments, and other
governmental charges, of any kind whatsoever, applicable or attributable to the Easement and the
Permitted Use.
4.4 Failure to Pay. If the City fails to pay any of the amounts due under this Easement, the
Port may pay the amount due, and the City will reimburse the Port within thirty (30) days after
written notice from the Port concerning the amount due. If the City fails to pay within 30 days,
the Port will charge 1% per month simple interest on the past due amount.
4.5 Habitat Damage Payment. If the Port constructs a Habitat Project at T117, and at any
time the City’s use of the Easement Property results in damage to the T117 Habitat Project, or
diminution of its mitigation or restoration value, the City shall provide notice to the Port of such
damages. If a regulatory authority requires that the City provide mitigation on Affected Aquatic
Lands, the City shall provide notice to the Port. Unless the Port determines that the damage is de
minimis, the City must compensate the Port for such damage or diminution in habitat value
within six (6) months of either Party receiving notice, or at such time that the diminution is
reasonably quantified as described below in Sections 4.5(a) or (b), whichever is later. There are
two options available for quantifying the value of the habitat damage, as described in Sections
4.5 (a) and (b) below. Regardless of which option is used, the City is responsible for paying all
costs (including reasonable administrative costs) incurred by the Port to remedy the damage to or
diminution in value of the T117 Habitat Project caused by the City’s use of the Easement
Property.
(a) Option 1. If the Port is seeking to evaluate lost habitat value for the purposes of
natural resource damage settlement with the Federal Natural Resource Trustees
(“Trustees”), the Port will request that the Trustees calculate and certify the lost
value in Discount Service Acre-years or “DSAYS” attributable to the presence of
the Permitted Use on the Easement Property. If the Trustees communicate that
they are willing and able to perform this action within the allotted time frame, the
Parties shall use the Trustees’ certification. The City shall compensate the Port at
a value of $125,000 per DSAY lost because of the Permitted Use, with any
portion of a DSAY being valued at pro rata.
(b) Option 2. If the Trustees are unwilling or unable to perform this action within the
allotted time frame, or if Port is seeking to evaluate lost habitat value for purposes
unrelated to natural resource damages, then the value shall be determined by a
three-member panel of experts who are qualified to determine the diminution of
value of the habitat attributable to the Permitted Use. Within sixty (60) days of
receiving notice, the City and the Port each shall appoint one member of the
panel. By consensus, the two appointed members shall select the third member.
The written decision of the majority of the panel shall bind the Parties.
SECTION 5 IMPROVEMENTS
5.1 Improvements Defined.
(a) “Improvements” are additions within, upon, or attached to the Easement Property,
including, but not limited to, habitat features, structures and fixtures.
(b) “Port-Owned Improvements” are Improvements made or owned by the Port,
including any construction, alteration, or addition to Port-Owned Improvements
made by the City.
(c) “City-Owned Improvements” are Improvements made by the City with the Port’s
consent.
(d) “Unauthorized Improvements” are Improvements made by the City on the
Easement Property without the Port’s prior consent, or Improvements made by the
City that do not conform with plans submitted to and approved by the Port.
(e) “Improvements Owned by Others” are Improvements made by Others with a right
to occupy or use the Easement Property or adjacent Port-owned lands.
5.2 Existing Improvements. The Port-Owned Improvements located on the Easement
Property as of the Commencement Date are depicted in Exhibit D. Other than as described in
Exhibit C, all improvements and associated structures at T117 depicted in Exhibit D must be
protected and maintained throughout the term of the Easement.
5.3 Construction, Major Repair, Modification, and Demolition.
(a) This Section 5.3 governs construction, alteration, replacement, major repair,
modification, alteration, demolition and deconstruction of Improvements
(“Work”). Section 6 governs routine maintenance and minor repair of
Improvements and Easement Property.
(b) Except in an emergency, the City shall provide the Port with written notice of
future construction on Easement Property, or other Significant Activity on any
part of the City-owned stormwater system that discharges to the Easement
Property, at least thirty (30) days in advance. “Significant Activity” means any
activity that could reasonably be anticipated to result in a claim being brought
against the Port. The Port has already received written notice of the construction
described in the Construction Documents in Exhibit C.
(©) Except in an emergency, the City shall not conduct any Work on Easement
Property without the Port’s prior written consent, as follows:
(1) The Port hereby consents to the Work described in the Construction
Documents in Exhibit C.
(2) The Port may deny consent if the Port reasonably determines that denial is
in the best interests of the Port. The Port may impose additional
reasonable conditions intended to protect specific, identifiable Port
interests to protect and preserve the Easement Property, Port-Owned
Improvements or Affected Aquatic Land, or to maintain access to the
Easement Property.
(3) Except in an emergency, the City shall submit to the Port plans and
specifications describing the proposed Work at least ninety (90) days
before commencement of Work. The City shall notify the Port of
emergency Work within five (5) business days of the start of such Work.
(4) The Port waives the requirement for consent if the Port does not notify the
City of its grant or denial of consent within sixty (60) days of submittal.
(d) Before completing Work, the City shall remove all debris and restore the
Easement Property, as nearly as possible, to a condition substantially like the land
use at T117 before the Work began.
(e) If Work is intended for removal of Improvements at End ofTerm, the City shall
restore the Easement Property in accordance with Section 3.3, End of Term.
0) Upon completion of Work by the City or City’s contractor(s), the City shall
provide the Port with as-built plans and specifications within ninety (90) days of
completion.
54 City-Owned Improvements at End of Term.
(a) Disposition
(1) The City shall remove the City-Owned Improvements in accordance with
Section 5.3 at the End ofTerm, unless the Port waives the requirement for
removal, or the Port determines that abandonment of Improvements is in
the best interests of the Port.
2) City-Owned Improvements remaining on the Easement Property after the
End of Term become Port-Owned Improvements without payment by the
Port, unless the Port elects otherwise. The Port may refuse or waive
ownership.
(3) If City-Owned Improvements remain on the Easement Property after the
End ofTerm without the Port’s consent, the Port may remove all
Improvements and the City shall pay the costs of removal and disposal.
4) Unauthorized Improvements belong to the Port, unless the Port elects
otherwise.
(b) Determination of Removal or Abandonment.
(1) The Port may waive removal of any or all City-Owned Improvements
whenever the Port determines that it is in the best interests of the Port
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(2) If the City renews the Easement or enters into a new Easement, the Port
may waive requirement to remove City-Owned Improvements
3) If the City does not renew the Easement or enter into a new Easement, the
Port and the City shall coordinate removal or abandonment as follows:
(1) The City must notify the Port at least one (1) year before the
Termination Date of its proposal to either leave or remove the
City-Owned Improvements.
(ii) The Port, within ninety (90) days, will notify the City whether the
Port (1) does not waive removal or (2) consents to abandonment.
(c) If the Port consents to abandonment, the City shall conduct Work necessary for
abandonment in accordance with Section 5.3.
(d) If the Port waives removal of any or all the City-Owned Improvements, the City
shall not remove Improvements and shall maintain such Improvements in
accordance with this Easement until the End of Term.
SECTION 6 ROUTINE MAINTENANCE AND REPAIR
6.1 The Port’s Repairs. This Easement does not obligate the Port to make any alterations,
maintenance, replacements, or repairs in, on, or about the Easement Property, during the Term,
except as set forth in Section 13 below.
6.2 The City’s Repairs and Maintenance.
(a) At the City’s sole expense, the City shall keep and maintain all City-Owned
Improvements and the Easement Property as it relates to the Permitted Use in
good order and repair and in a safe condition. The Port’s consent is not required
for routine maintenance or repair, unless such work could result in damage to the
T117 Habitat Project, thereby triggering Section 4.5.
(b) At the City’s own expense, the City shall make any additions, repairs, alterations,
maintenance, replacements, or changes to the Easement Property or to any
Improvements on the Easement Property that any public authority requires
because ofthe Permitted Use.
(c) The City shall follow procedures for the inspection, monitoring, routine
maintenance, and emergency plans in Exhibit C. The City shall provide the Port
with a copy of any final inspection, monitoring, operations or maintenance
manuals.
(d) Upon completion of maintenance activities, the City shall remove all debris and
restore the Easement Property, as nearly as possible, to the condition prior to the
commencement of work.
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SECTION 7 ASSIGNMENT
The City shall not assign any part of the City’s interest in this Easement or the Easement
Property or grant any rights or franchises to third parties without the Port’s prior written consent,
which the Port shall not unreasonably condition or withhold. The Port reserves the right to
reasonably change the terms and conditions of this Easement upon the Port’s consent to
assignment.
SECTION 8 INDEMNITY, FINANCIAL SECURITY, INSURANCE
8.1 Indemnity.
(a) To the extent allowed by law, the City shall indemnify, defend, and hold the Port,
its employees, officers, and agents harmless from any Claims arising out of the
Permitted Use or negligent acts or omissions related to the Permitted Use by the
City, its contractors, agents, invitees, employees or affiliates.
(b) “Claim” as used in this Section 8.1 means any financial loss, claim, suit, action,
damages, expenses, fees (including attorneys’ fees), penalties, orjudgments
attributable to bodily injury; sickness; disease; death; damages to tangible
property, including, but not limited to, land, aquatic life, and other natural
resources; and loss of natural resource values.
(c) The City is obligated to indemnify under this Section 8.1 regardless of whether
any other provision of this Agreement, or NPDES or other permit or license,
authorizes the discharge or release of the substance resulting in a claim.
(d) No damages or fees paid by the City to the Port under other provisions of this
Easement are a setoff against the City’s obligation to indemnify under this Section
8.1
(e) The Port shall not require the City to indemnify, defend, and hold the Port
harmless for claims that arise out of the willful or negligent act of the Port or the
Port’s elected officials, employees, agents or affiliates.
(H The City waives its immunity under Title 51 RCW to the extent it is required to
indemnify, defend, and hold the Port and its agencies, officials, agents, or
employees harmless.
(8) Section 9, Environmental Liability/Risk Allocation, exclusively governs the
City’s liability to the Port for Hazardous Substances and its obligation to
indemnify, defend, and hold the Port harmless for Hazardous Substances.
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8.2 Insurance Terms.
(a) The City, at City’s expense, shall procure and maintain a program of commercial
insurance, self-insurance, or a combination of commercial and self-insurance that
is acceptable to the Port. This program of insurance must be maintained
continuously throughout the term of this Easement. Any commercial insurance
coverage that the City carries shall be on a primary basis, and any insurance that
the Port may carry will apply strictly on an excess basis over any applicable
insurance the City may carry. The City’s insurance program shall provide
coverage that is as follows or equivalent in terms of coverage and limits.
(1 Commercial General Liability insurance on ISO Form CG 00 01 10 01 (or
equivalent) for third party property damage, bodily injury, personal and
advertising injury, and medical payments in an amount which is not less
than $1,000,000 per occurrence and $2,000,000 annual aggregate. The
Port shall be named as an additional insured on any insurance policy
purchased by the City for this Work on an endorsement that is approved
by the Port.
(2) Automobile Liability Insurance shall be provided in an amount not less
than $1,000,000 per occurrence on a combined single limit basis for
bodily injury and property damage using ISO Form CA 00 01 (or
equivalent).
(3) City is responsible for complying with the Washington State laws that
pertain to industrial insurance (Reference Revised Code of Washington,
Title 51 Industrial Insurance) for its employees.
(b) Waiver.
(1) The City and the Port waive all rights against each other for recovery of
damages to the extent insurance covers these damages.
(2) Except as prohibited by law, the City and Port waive all rights of subrogation
against each other for recovery of damages to the extent that they are covered
by insurance
(c) Proof of Insurance.
(1) City’s insurance program shall be reviewed by the Port at inception of the
Easement and annually thereafter for the duration of the term of the
Easement. If any deficiencies in the coverage requirements set forth above
are found, the Port shall provide written notice to City within fourteen (14)
days identifying any deficiencies in coverage. City shall have ten days
(10) to correct any of the deficiencies identified.
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(2) If commercial insurance is used, the City shall submit a Certificate of
Insurance along with an additional insured endorsement for the
commercial general liability insurance policy identifying the Port as an
additional insured.
(3) If a program of self-insurance is used, a description of the self-insured
program must be provided, along with validation that the program is
solvent and funded to pay existing and future liabilities that a program of
commercial insurance would otherwise cover.
(d) The Port must receive written notice before cancellation or non-renewal of any
commercial insurance obtained to fulfill the requirements of this Easement.
(e) Adjustments in Insurance Coverage
(1) The Port may impose changes in the type of insurance coverage required,
as well as the limits of liability for all types of insurance, as the Port
deems necessary as a result of a substantive increase in the risks of the
City’s Permitted Use, PROVIDED that the Port shall not require changes
in the type of insurance coverage required under this Easement more
frequently than every five calendar years.
(2) The City shall secure new or modified insurance coverage within sixty
(60) days after the Port requires changes in the limits of liability.
SECTION 9 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
9.1 Definitions.
(a) “Hazardous Substances” means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(b) “Release or threatened release of Hazardous Substances” means a release or
threatened release as defined under any law described in Section 9.1(a).
(c) “Utmost care” means the standard of care applicable under the Washington State
Model Toxics Control Act (“MTCA”), Chapter 70.105 RCW, as amended.
(d) “The City and affiliates” when used in this Section 9 means the City or the City’s
contractors, agents, employees, and affiliates, or any person on the Easement
Property in connection with the Permitted Use.
14
(f “Liabilities” as used in this Section 9 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys’ fees and
disbursements), penalties, or judgments.
(2) “Affected Aquatic Lands” means those aquatic lands affected by a release of
Hazardous Substances that occurs as a result of the Permitted Use.
9.2 General Conditions.
(a) The City’s obligations under this Section 9 extend to the area in, on, under, or
above:
(nN The Easement Property and
(2) Affected Aquatic Lands
(b) The City shall exercise the utmost care with respect to Hazardous Substances. In
relation to the Permitted Use, the City shall exercise utmost care for the
foreseeable acts or omissions of third parties with respect to Hazardous
Substances, and the foreseeable consequences of those acts or omissions.
9.3 Current Conditions and Duty to Investigate.
(a) Hazardous Substances are known to exist in, on, or under the Easement Property.
(b) This Easement does not impose a duty on the Port to conduct investigations or
supply information to the City about Hazardous Substances.
(©) The City is responsible for conducting all appropriate inquiry and gathering
sufficient information concerning the Easement Property and the existence, scope,
and location of any Hazardous Substances on the Easement Property necessary
for the City to meet the City’s obligations under the Easement and utilize the
Easement Property for the Permitted Use.
9.4 Use of Hazardous Substances.
(a) The City and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws and agency orders.
(b) The City shall not undertake, or allow others to undertake by the City’s
permission, acquiescence, or failure to act, activities that result in an unauthorized
release or threatened release of Hazardous Substances, or otherwise result in
Liabilities to the Port.
9.5 Management and Cleanup of Hazardous Substances.
(a) The City’s Permitted Use shall not:
(DH Damage or interfere with the operation and maintenance of remedial or
restoration activities;
15
2) Result in human or environmental exposure to contaminated media or
sediments at a level exceeding regulatory thresholds;
(3) Result in significant mechanical or chemical disturbance of the T117
Habitat Project.
(b) If during construction or operation of the Permitted Use, the City’s act, omission,
or breach of obligation under Section 9.4 or 9.5(a) results in the discovery,
disturbance or excavation of Hazardous Substances or a release of Hazardous
Substances that exceed the threshold limits of any applicable regulatory standard,
the City shall, at the City’s expense, promptly take any actions necessary, , to
properly manage such Hazardous Substances in accordance with applicable law
and regulatory agency directives, even if the cost of properly managing such
Hazardous Substances could have been deemed to be a Sediment or Upland Cost
under the terms of the 2008 Indemnity Agreement.
9.6 Notification and Reporting.
(a) The City shall immediately notify the Port if the City becomes aware of any of the
following with respect to the Easement Property:
(nN A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of any Hazardous Substances;
3) Any lien or action arising from Hazardous Substances;
4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances;
(5) Any notification from the EPA or Ecology that remediation or removal of
Hazardous Substances is or may be required at the Easement Property.
(b) The City’s duty to report under Section 9.6(a) extends to lands described in
Section 9.2(a), and to any other property under the City’s control in conjunction
with the Easement Property where a release or the presence of Hazardous
Substances on the other property would affect the Easement Property.
(©) The City shall provide the Port with copies of all documents the City submits to
any federal, state or local authorities concerning environmental impacts or
proposals relative to the Easement Property.
9.7 Indemnification.
(a) The City shall indemnify, defend, and hold the Port harmless from and against
Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, release
or disposal of any Hazardous Substance by the City and affiliates
occurring whenever the City occupies or has occupied the Easement
Property, including but not limited to costs to identify or manage such
16
Hazardous Substances remaining on the Easement Property at the
conclusion of the T117 EAA cleanup;
(2) The City’s use of the Easement Property.
(b) The City shall indemnify, defend, and hold the Port harmless for Liabilities that
arise out of or relate to the City’s breach of obligations under Section 9.5.
(c) The City is obligated to indemnify under this Section 9.7 regardless of whether a
NPDES or other permit or license authorizes the discharge or release of
Hazardous Substances.
9.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Section 9.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses either
Party may have against third parties. Nothing in this Section 9 benefits or creates
rights for third parties.
(0) The allocations of risks, Liabilities, and responsibilities set forth in this Section 9
do not release either Party from or affect the liability of either Party for
Hazardous Substances claims or actions by regulatory agencies.
9.9 Sampling, Reimbursement, and Split Samples.
(a) Each Party may conduct sampling, tests, audits, surveys, or investigations
(“Tests”) of the Property at any time to determine the existence, scope, or effects
of Hazardous Substances.
(b) In non-emergencies, each Party is entitled to obtain split samples of Test samples
from the other Party. The Party who is requesting the split samples (the
“Requesting Party’) must submit a written request to split samples to the Party
conducting the sampling (“the Conducting Party”) at least ten (10) calendar days
before the Tests are conducted. Upon demand, the Requesting Party shall
promptly reimburse the Conducting Party for additional cost, if any, of split
samples.
(c) If either Party conducts Tests on the Easement Property, the Conducting Party
shall provide the other with validated final data and quality assurance/quality
control/chain of custody information about the Tests within sixty (60) calendar
days of a written request by the other party, unless the Tests are part of a
submittal under Section 9.6(c), in which case the City shall submit data and
information to the Port without written request by the Port.
17
9.10 Closeout Assessment.
(a) The Port may require the City to conduct a Closeout Environmental Assessment
(“Closeout Assessment”) prior to Termination of the Easement.
(b) The purpose of the Closeout Assessment would be to determine the impacts of the
City’s Permitted Use on the Easement Property in relation to the existence and
scope of Hazardous Substances on the Easement Property and Affected Aquatic
Lands.
(c) No later than one hundred eighty (180) calendar days prior to the Termination
Date, or within ninety (90) days of valid notice to early termination, the Port shall
provide the City with written notice if the Port requires a Closeout Assessment.
(d) Within sixty (60) days of the Port’s notice that Closeout Assessment is required
and before commencing assessment activities, the City shall submit a proposed
plan for conducting the Closeout Assessment in writing for the Port’s approval.
The City shall coordinate the Closeout Assessment with all applicable regulatory
authorities.
(e) The Port shall not unreasonably disapprove of the City’s proposed Closeout
Assessment plan. If the Port fails to approve or disapprove of the plan in writing
within sixty (60) days of its receipt, the Port waives the requirement for approval.
® The City shall be responsible for all costs required to complete planning,
sampling, analyzing, and reporting associated with the Closeout Assessment.
(8) If the initial results of the Closeout Assessment disclose that Hazardous
Substances may have migrated to other property as a result of the Permitted Use,
the City will perform additional Closeout Assessment work to reasonably
determine the existence, scope, and effect of the City’s discharge or release of
Hazardous Substances on adjacent property or on natural resources.
(h) The City shall submit Closeout Assessment to the Port upon completion.
(1) To the extent required by law, the City shall report to the appropriate regulatory
authorities if the Closeout Assessment discloses a release or threatened release of
Hazardous Substances related in any way to the City’s Permitted Use of the
Easement.
SECTION 10 DAMAGE OR DESTRUCTION
10.1 Notice and Repair.
18
(a) In the event of material damage to or destruction of the Easement Property or any
Improvements, the City shall promptly give written notice to the Port. The Port
will not be deemed to have knowledge of the damage or destruction of the
Easement Property or any Improvements without the City’s written notice.
(b) In the event of material damage or destruction of Improvements, the City may
terminate the Easement, provided the City notifies the Port in writing within thirty
(30) days of casualty, of intent to terminate. The City shall terminate in
accordance with Section 3.3 End of Term. If not terminating, the City shall
promptly reconstruct, repair, or replace any Improvements in accordance with
Section 5.3, Construction, Major Repair, Modification, and Demolition. Where
material damage to the Affected Aquatic Lands is attributable to the City’s
Permitted Use, the City shall take any action required by law to eliminate or
mitigate the damage to Affected Aquatic Lands.
10.2 The Port’s Waiver of Claim. The Port does not waive any claims for damage or
destruction of the Easement Property unless the Port provides written notice to the City of each
specific claim waived.
10.3 Insurance Proceeds. The City’s duty to reconstruct, repair, or replace under this Section
10 is not conditioned upon the availability of any insurance proceeds.
SECTION 11 CONDEMNATION
In the event of condemnation, the Parties shall allocate the award between the Port and the City
based upon the ratio of the fair market value of (1) the City’s rights in the Easement Property and
City-Owned Improvements and (2) the Port’s interest in the Easement Property; the reversionary
interest in City-Owned Improvements, if any; and Port-Owned Improvements. In the event of a
partial taking, the Parties shall compute the ratio based on the portion of Easement Property or
Improvements taken. If the City and the Port are unable to agree on the allocation, the Parties
shall submit the dispute to binding arbitration in accordance with the rules of the American
Arbitration Association.
SECTION 12 BREACH, REMEDIES, DISPUTE RESOLUTION AND TERMINATION
12.1 Breach and Right to Cure.
(a) The Port shall provide prompt written notice of any allegation that the City is in
breach of the terms and conditions of this Easement.
(b) The City shall have sixty (60) days to cure the breach. If the breach arises from
the City’s failure to comply with Section 2.2, the City shall additionally mitigate
19
environmental damages that are caused by the City’s breach in accordance with
Section 12.2(b).
(c) For breaches not capable of cure within sixty days, the Port will not unreasonably
withhold approval of a reasonable alternative cure schedule. The City shall
submit a cure schedule within thirty (30) days of notice of breach. The City shall
work diligently and in good faith to execute the cure.
12.2 Remedies
(a) The Port may terminate this Easement upon the City’s failure to timely cure a
breach.
(b) If the breach that the City fails to timely cure arises from Section 2.2,
(1) The Port may, without terminating the easement, repair the damage
proximately caused by the City’s breach, and charge the City for the costs
and/or damages. Upon demand by the Port, the City shall pay all costs
and/or damages proximately caused by the City’s breach, or
(2) The City shall prepare a written plan, subject to the Port’s approval,
incorporating measures to (1) eliminate or minimize future environmental
impacts that the City’s breach may cause, (2) mitigate environmental
harm or address damaged natural resources that were proximately caused
by the City’s breach, and (3) monitor and report on plan implementation.
The City shall implement the plan upon the Port’s approval
(c) The remedies specified under this Section 12.2 are not exclusive of other remedies or
the sole means of redress to which the Port is lawfully entitled for the City’s breach or
threatened breach of any provision of this Easement.
12.3 Termination by Nonuse. If the City does not use the Easement Property for a period of
three (3) successive years, this Easement terminates without further action by the Port. The
City’s rights revert to the Port upon Termination by Nonuse. The City’s obligations upon
Termination remain in effect upon Termination by Nonuse.
12.4 Termination by the City. The City may terminate this Easement upon providing the
Port with written notice of intent to terminate. Termination by the City is effective upon
completion of all obligations under Section 3.3.
12.5 Dispute Resolution. In the event that the Parties disagree on any material term of this
Easement or material decision under this Easement, including but not limited to actions to be
conducted by any Party, the disagreement shall be settled as follows, PROVIDED that nothing in
this section precludes the Parties from meeting at any time to attempt to resolve the dispute
informally. The Parties shall convene a Dispute Resolution Panel (“DRP”) by each appointing
one impartial member to the DRP. The two appointed members shall then by agreement select
20
an impartial third member. The DRP shall be instructed that the task of the DRP is to (a) resolve
the dispute of the Parties based on general principles of law, and (b) to ensure that any required
reasonable actions flowing from the DRP decision, if any, are focused on effectively mitigating
or eliminating adverse impacts and liabilities in an efficient and cost-effective manner. The
Parties shall each submit a position brief no longer than ten (10) pages long, unless leave to file a
longer brief is granted by the DRP. Each Party shall be given the opportunity to respond to the
other Party’s brief in a five (5) page Response, served no later than 7 days after service of the
position brief. Within 30 (thirty) days of the submission of the Response briefs, the DRP shall
issue a written decision of the majority resolving the dispute and the DRP’s decision shall be
binding, PROVIDED that (a) the Panel’s decision is not contrary to law, and (b) if a Party is
required to perform some action as a result of the DRP’s decision, that Party’s obligation to act is
contingent on having the requisite legal and budgetary authority to carry out the Panel’s decision.
In the event that either Party believes that the DRP decision is contrary to law, or requires actions
by a Party that is not authorized by law to conduct such actions, or requires actions for which
requisite funds are not appropriated, then the Parties reserve all rights, defenses and claims, and
may seek relief from any competent tribunal.
SECTION 13 PORT’S OBLIGATIONS
13.1 Port’s Obligation to Do No Harm to Conveyance System and Outfall on the
Easement Property.
(a) The Port shall take all reasonable precautions to do no harm to the City-Owned
Improvements located on the Easement Property. The Port shall provide a copy
to the City of its 100% design plans for construction of the T117 Habitat Project
when such plans are finalized. The City hereby agrees that construction of the
T117 Habitat Project will not harm the City-Owned Improvements, so long as the
Port constructs it in accordance with the design plans.
(b) Except as part of the construction of the T117 Habitat Project or in an emergency,
the Port shall consult with the City at least 5 (five) days prior to conducting, or
allowing to be conducted, any heavy equipment excavation or grading on the
Easement Property.
(c) In the event that a negligent act or omission by the Port directly results in damage
or injury to the City’s stormwater drainage pipe or outfall located on the
Easement Property, the Port agrees to compensate the City for the costs of repair
of the damage or replacement of the damaged elements caused by the Port’s acts
or omissions.
SECTION 14 NOTICE AND SUBMITTALS
21
Following are the locations for delivery of notice and submittals required or permitted under this
Easement. Any Party may change the place of delivery upon ten (10) days written notice to the
other.
City: CITY OF SEATTLE
Jeff Massie
Seattle Public Utilities
PO Box 34018
700 Fifth Avenue, #4900
Seattle, WA 98124-4018
Email: jeff.massie(@seattle.gov
Phone: 206-684-0976
Port: PORT OF SEATTLE
Kathy Bahnick
Seaport Division (Environmental)
2711 Alaskan Way
P.O. Box 1209
Seattle WA 98111-1209
Email: Bahnick.k@portseattle.org
The Parties may deliver any notice in person, by email, or by certified mail. Depending on the
method of delivery, notice is effective upon personal delivery, upon receipt of a delivery
confirmation if delivered by email, or three (3) days after mailing.
SECTION 15 MISCELLANEOUS
14.1 Authority. The City and the person or persons executing this Easement on behalfof the
City represent that the City is qualified to do business in the State of Washington, that the City
has full right and authority to enter into this Easement, and that each and every person signing on
behalf of the City is authorized to do so, PROVIDED THAT the Parties acknowledge that the
Seattle City Council and the Port Commission are required to approve this Easement, and the
Mayor is required to sign such legislation when passed by the City Council.
14.2 Successors and Assigns. This Easement binds and inures to the benefit of the Parties,
their successors, and assigns.
14.3 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
14.4 Entire Agreement. This Easement, including the exhibits and addenda, if any, contains
the entire agreement of the Parties. This Easement merges all prior and contemporaneous
agreements, promises, representations, and statements relating to this transaction or to the
22
Easement Property. To the extent that this Easement Agreement is in conflict with the 2008
Indemnity Agreement, this Easement Agreement controls.
14.5 Waiver.
(a) The waiver of any breach or default of any term, covenant, or condition of this
Easement is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Easement. The Port’s acceptance of payment is not a waiver of any preceding or
existing breach other than the failure to pay the particular payment that was
accepted.
(b) The renewal of the Easement, extension ofthe Easement, or the issuance of a new
Easement to the City, does not waive the Port’s ability to pursue any rights or
remedies under the Easement.
14.6 Cumulative Remedies. The rights and remedies under this Easement are cumulative and
in addition to all other rights and remedies afforded by law or equity or otherwise.
14.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Easement.
14.8 Language. The word “Parties” means the Port and the City in the collective. The word
“Party” means either or both the Port and the City, depending on context.
14.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
14.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute means that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Easement is in the Superior Court for King County,
Washington.
14.11 Recordation. At the City’s expense and no later than thirty (30) days after receiving the
fully-executed Easement, the City shall record this Easement, including its exhibits, with King
County. The City shall include the parcel number of the upland property used in conjunction
with the Property, if any. Any exhibit previously or separately recorded may be referenced by the
recording number. The City shall provide the Port with recording information, including the date
of recordation and file number.
14.12 Modification. No modification of this Easement is effective unless in writing and signed
by the Parties. Oral representations or statements do not bind either Party.
14.13 Survival. Any obligations of the City not fully performed upon termination of this
Easement do not cease, but continue as obligations of the City until fully performed.
23
14.14 Exhibits. All referenced exhibits are incorporated in this Easement unless expressly
identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
The Port of Seattle, a Washington The City of Seattle
municipal corporation Seattle Public Utilities
By By
Title Title
Date , 2014 Date , 2014
STATE OF )
) SS.
COUNTY OF )
I certify that I know or have satisfactory evidence that
is the person who appeared before me and signed this instrument, on oath stated
that s/he was authorized to execute the instrument and acknowledged it as
Director/Director’s Designee, Seattle Public Utilities, the City of Seattle, to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
SUBSCRIBED AND SWORN to before me this day of
2013
NAME
(Print name)
NOTARY PUBLIC in and for the State of Washington
Residing at Seattle
My appointment expires: 20
,
STATE OF )
COUNTY OF )
I certify that I know or have satisfactory evidence that on this day of , ,
before me, a notary public in the for the State of Washington, duly commissioned and swom, came
24
, personally known or having presented satisfactory evidence to be the
of the Port of Seattle, that executed the foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of the Port of Seattle for the uses and purposes therein
mentioned, and on oath stated that he/she is authorized to execute the said instrument on behalf of said limited
liability company.
WITNESS MY HAND and official seal the day and year in this certificate first
above written
NAME
(Print name)
NOTARY PUBLIC in and for the State of Washington
Residing at Seattle
My appointment expires: ,2
25
EXHIBIT A
Exhibit A-1 is a map showing all of T117, and particularly the dividing line between the CWD
Property and the Fee Property.
Exhibit A-2 is a map showing the T117 EAA, and particularly the dividing line between the
Sediments, Uplands, Streets and Yards cleanup areas.
[Provided by Port]
EXHIBIT B
See attached maps of the (1) Construction Easement boundaries; (2) Operation Easement boundaries; and also
attached see (3) legal description of Easement property, provided by the City.
EXHIBIT C
100% Submittal outfall construction Plans Sheets 51, 52, and 53 (attached).
No All requirements that pertain to construction and operation that derive from the remedial
action design, including all requirements that are applicable or relevant and appropriate
(ARAR) State or local requirement, as submitted by the City to EPA on June 9, 2014,
incorporated herein by reference. These requirements are available at Seattle Public
Utilities, 700 5 Ave, Suite 4900, Seattle, WA 98124-4018.
. No stormwater discharges from the vegetated depression are allowed, except through
City stormwater conveyance system.
After outfall installation, the City shall restore the outfall bank at a 2:1 or shallower
slope, not higher than grade prior to City outfall construction, or lower than final T117
Restoration grade.
T117 access to 14" Ave S shall be maintained at all times.
TESC for the City’s work on T117 shall be installed in accordance with King County
code.
Only soil generated on T117, and clean imported backfill material for the construction of
the outfall on T117 are allowed to be stockpiled within the T117.
The final copies of the documents listed below, once approved by EPA, are incorporated
by reference into this Easement:
o Final Removal Action Design Report as approved by EPA
o Final Removal Action Work Plan as approved by EPA
o Final Long Term Monitoring and Maintenance Plan
28
EXHIBIT D
Port-owned Improvements on the Easement Property at the start of the Lease term,
provided by the Port.
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