3b attach
FINAL DRAFT Item No. 3b_attach
Meeting Date: August 15, 2017
MEMORANDUM OF UNDERSTANDING
FOR INTERGOVERNMENTAL COORPERATION BETWEEN THE
PORT OF SEATTLE AND THE CITY OF SEATTLE FOR
THE SAFE AND SWIFT CORRIDOR PROGRAM
This Memorandum of Understanding ("MOU") is made and entered into by the Port of Seattle, a municipal
corporation of the State of Washington, hereinafter called the "Port," and City of Seattle, a municipal
corporation of the State of Washington, hereinafter called the "City." The Port and the City are also
referred to in this MOU collectively as "the Parties," and individually as a "Party."
RECITALS
WHEREAS, the City's Comprehensive Plan establishes transportation goals and policies to
preserve and improve mobility and access for the transport of goods and services, to enhance Seattle's
role as a hub for regional goods movement and as a gateway to national and international suppliers and
markets, and to reliably connect the City's manufacturing/industrial centers, urban centers, and business
districts with the local, state, and international freight network; and
WHEREAS, Seattle's deep-water port and trade relations are important elements of the City's
economy, history, and cultural identity; and
WHEREAS, the movement of goods in and out of the City and for local deliveries on City streets
is a vital component of creating family-wage jobs and sustaining the City's economic vibrancy and quality
of life; and
WHEREAS, on October 3, 2016 the City adopted one of the nation's first municipal Freight
Master Plan to ensure efficient and reliable movement of goods by truck freight on City streets; and
WHEREAS, the joint venture of the ports of Seattle and Tacoma (The Northwest Seaport Alliance
or "NWSA") is the fourth largest gateway for containerized cargo in the western hemisphere and
generates $379 million in state and local tax revenue from marine cargo; investments in efficient
movement of goods to and from port terminals enables Seattle's competitiveness in the global economy,
and
WHEREAS, the maritime industry annually generates approximately $37.6 billion in economic
impact for the State of Washington, supporting tens of thousands of family-wage jobs; maritime wages in
2015 averaged $67,000 per year compared to the 2015 state average wage of $56,700; and each
maritime industry job supports 1.7 jobs elsewhere in the state economy; and
WHEREAS, the Alaskan Way, Elliott Avenue W, 15th Avenue W, and Mercer Street corridors are
critical to supporting Seattle's tourism economy, a growing industry in Seattle and King County, with
visitors spending $7 billion dollars and generating $718 million in state and local taxes in 2016; and
WHEREAS, the City and Port recognize Key Arena as an important civic asset, a historic anchor
to the Seattle Center and the Uptown Neighborhood, and a valuable source of tourism and entertainment
revenue for the City; and.
WHEREAS, the Port, City, State of Washington, private sector partners, and other agencies
within Puget Sound and the state have developed and signed funding agreements for freight
infrastructure improvements, including SR 519, the Spokane Street Viaduct, the East Marginal Way
Grade Separation, Duwamish Intelligent Transportation Systems, the Galer Street Flyover, and other
FAST Corridor projects, all of which provide freight mobility benefits for the region; and
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WHEREAS, contributions by the City and Port for projects outlined in this MOU will leverage
hundreds of millions of dollars in contributions from local, state, and federal sources; and
WHEREAS, the proposed South Lander Street Grade Separation project will benefit the Port and
the Duwamish Manufacturing and Industrial Center (MIC) by improving overall traffic congestion and
increasing freight mobility around Port facilities, including the adjacent east-west connectors on the
Spokane Street Viaduct and SR519/Atlantic Street; and
WHEREAS, the projects outlined in this agreement will improve safety for all modes of
transportation on critical freight routes within and between the Duwamish MIC and Ballard/Interbay MIC
WHEREAS; the Parties agree that the payment schedule for the Lander Agreement (Exhibit C),
should be revised and will consider this proposed amendment to this schedule through a separate action;
NOW, THEREFORE, in consideration of mutual promises and covenants contained herein, the Parties
hereby agree to the terms and conditions as follows:
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1. PURPOSE AND DEFINITIONS
1.1. The purpose of this MOU is to launch a new partnership between the City and the Port, to be
known as the Safe and Swift Corridor Program ("Program"). The Program will update multiple
efforts between the Parties to improve critical transportation corridors in Seattle and will be
focused on moving cargo, cars, transit and cyclists safely and swiftly on city streets.
1.2. The Program will include a series of projects that form the basis of this MOU. Those projects
include, but are not necessarily limited to, the Lander Project, the East Marginal Way
Improvement Project, transportation components of the Terminal 5 Modernization Project (and
related effort to establish a U.S. Federal Railroad Administration designated quiet zone, Exhibit
A), transportation components of the proposed Terminal 91 Uplands redevelopment, and
transportation components of the proposed Key Arena redevelopment.
1.3. As used in this MOU, "Lander Project" means the construction of South Lander Street Grade
Separation Project, a four-lane bridge spanning the west coast BNSF mainline railroad tracks
between 1st and 4th Avenues South. The Lander Project is anticipated to begin construction in
2018 and open to traffic in late 2019, with Final Acceptance expected in 2020.
1.4. As used in this MOU, "Terminal 5 Modernization Project " or "T5 Project" means the Port and
NWSA's Terminal 5 Modernization Project which is set to provide terminal improvements
necessary to serve more environmentally sustainable, newer and larger vessels that will help
maintain the NWSA's competitive position, preserve and grow jobs, and support a healthy
economy for the region and state. The improvements include crane rail strengthening, berth
deepening, slope stabilization, electrical supply/distribution upgrades, new fender system and
structural rehabilitation of the dock.
1.5. As used in this MOU, "East Marginal Way Improvement Project " or "EMW-HHN Project" means
the long-term project planned for East Marginal Way (EMW) between South Michigan Street and
South Atlantic Street under the umbrella of the Heavy Haul Network (HHN) program that will
improve safety and reliability in the movement of people and goods, support heavy freight loads
by rebuilding the roadway to Heavy Haul standards, promote efficiency through signal
modifications and intelligent transportation systems (ITS), and improve safety by better
separating non-motorized modes from freight traffic.
1.6. Construction Contract Terms: The terms Final Inspection, Interim Final Inspections, Project
Phase, Project Completion, Physical Completion, Substantial Completion, Final Acceptance
shall have the meaning set forth in the City's standard specifications found at
http://www.seattle.gov/util/Engineering/StandardSpecsPlans/index.htm
2. SCOPE OF WORK
2.1. East Marginal Way (EMW) Corridor
a. Shared Responsibilities Between the Parties
i. The Parties will complete a study to determine the impacts to the Heavy Haul Network
(HHN) by trucks with HHN permits serving Port facilities and moving cargo within the
HHN. The location of the HHN is described in October 2015 MOU (Exhibit D).
ii. The Parties will work together to negotiate with Union Pacific Railroad for removal of
their western-most track for the purposes of widening the roadway in connection with
the EMW-HHN Project.
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iii. The Parties will coordinate and collaborate on the design of the EMW-HHN Project.
iv. The Parties will work together to improve bike safety adjacent to Port properties as
part of their work on the EMW-HHN Project.
b. City Responsibilities
i. The City will implement short-term improvements at the north end of the East Marginal
Way (EMW) corridor using striping, concrete barriers, signs, and/or spot paving.
ii. The City will expedite portions of EMW-HHN Project on the north end of the EMW
corridor within 12-18 months. This work is expected to include elements of the hybrid
option being considered for the EMW-HHN Project such as a multi-use path on the
west side of EMW south of South Hanford Street, a signalized diagonal crossing of
South Hanford Street, and two-way protected bike lanes on the east side of EMW
north of South Hanford Street to South Atlantic Street (see Exhibit G).
iii. The City will proceed with design of the EMW-HHN Project and achieve 30 percent
design by early 2018. Key project elements will include roadway paving to heavy haul
standards, separation between modes in the form of a multi-use path or protected
bike lanes, and Intelligent Transportation System (ITS) elements to provide
information and improve efficiency. The City will lead the effort to secure grants for the
project.
c. Port Responsibilities
i. The Port committed to contributing funds directly to the EMWHHN Project based on
the commitments of the October 2015 HHN MOU and on the results of the pavement
study (see Exhibit D).
ii. The Port will continue trucker and marine terminal operation education on improved
vigilance of sharing the road with other transportation modes. Education may include
field visits, trucker safety fairs, web page information and safety brochures.
iii. The Port will provide the City available information about cargo ship schedules and
related truck traffic impacts.
2.2. South Spokane Street Corridor
a. Shared Responsibilities
i. The Parties will work together to secure approval of a U.S. Federal Railroad
Administration designated quiet zone between the west end of the train bridge across
the West Waterway of the Duwamish and the Terminal 5 gate as provided for in the
MOU between the City and the Port (Exhibit A).
ii. The Parties will work together to complete improvements to the "five-way crossing" at
the intersection of Chelan Avenue SW, West Marginal Way SW, SW Spokane Street
and Delridge Way SW, including eventual closure of West Marginal Way leg leading
into Terminal 5 and better signalization (Exhibit B).
iii. The Parties will support the Lander Project which will be a new east-west grade
separation that is expected to minimize traffic volume along Spokane Street (and
Atlantic Street), and thus improve flow for freight.
iv. The Parties will work collaboratively to finalize the Port's conditionally approved street
vacation packages on Terminals 18 and Terminal 5. The Parties will strive to finalize
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the street vacations for Terminal 18 before the end of 2017 and the Terminal 5 street
vacations before the end of 2018.
v. The Port and the Seattle Department of Transportation (SDOT) will form a quarterly
review committee to account for how the $5 million match money (see section 2.2.b.ii)
will be expended on elements of freight improvement projects. Examples of such
projects include:
SDOT costs on the approved Quiet Zone
Cost savings on the Lander Project (Section 4.7)
SDOT staff time on T5 Project mitigation
If the City adds elements not related to freight to any of the Projects covered by this
MOU, or other freight-related projects undertaken by the City to achieve the $5 million
match, the Parties will evaluate whether or not these elements can be considered
towards the $5M match during their quarterly review committee meetings.
vi. The Parties will establish a new technical group to nimbly respond to projects through
the Spokane Street corridor (and EMW). The parameters of this group and specific
responsibilities of the group will be determined at the first quarterly meeting of the
group as referred to under 2.2.a.v.
vii. The Parties will work together to improve bike safety adjacent to Port properties.
b. City Responsibilities
i. The City shall match up to $5 million in the Port's investments in the Lander Project
with investments in other freight projects, smaller corridor improvement projects,
and/or savings from significant collaborative projects such as the T5 Project-related
Quiet Zone implementation and the Lander Project. The City's internal staff costs for
T5 Project Quiet Zone, signalization improvements and other Spokane corridor
projects shall count toward its $5 million dollars in matching funds. T he City shall
seek project cost savings for the Quiet Zone and signalization projects.
ii. The City shall establish truck/supply chain parking areas around the EMW/Spokane
Street intersection.
iii. The City agrees to release any and all claims against the Port related to street use
fees associated with the Port's use of City streets in and about Terminals 5 and 18
while the street vacation conditional approvals for Terminals 5 and 18 were being
processed, and hereby covenants not to bring suit against the Port with respect to any
such claims. The City's release of claims under this paragraph survives the
termination of this agreement.
c. Port Responsibilities
i. The Port will provide $10 million for the Lander Project. Of this $10 million, $5 million
will be matched by the City through other investments in freight projects, smaller
corridor improvement projects and savings with significant collaborative projects, like
the T5 Project related Quiet Zone and the Lander Project.
ii. In order to maintain reduced impacts on surrounding communities, the Port will
continue to provide parking for short-haul trucks at Terminal 25 South or an alternate
location.
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2.3. 15 Avenue W/Elliott Avenue W/Mercer Street Corridors
a. Shared Responsibilities
i. The Parties will establish a joint project group (with other relevant stakeholders) for
the expenditure of a new Transportation Fund to make transportation improvements in
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the 15 Avenue W/Elliott Avenue W/Mercer Street corridor, including areas around
Seattle Center.
ii. The Parties will work together to establish a transportation and infrastructure plan and
related agreements for the proposed Terminal 91 Uplands redevelopment prior to the
end of 2017.
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iii. In the 15 Avenue W corridor, the Parties will coordinate Seattle bicycle path projects
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with those on Port properties in the 15 Avenue W corridor to improve the bicycle
safety and connections between Fishermen's Terminal and downtown.
b. City Responsibilities
i. The City shall monitor new Expedia headquarters-related traffic impacts (construction
and eventually commuters) and shall endeavor to minimize traffic congestion resulting
from the addition of Expedia development traffic.
ii. The City shall coordinate with Expedia on the design and funding for the Port bike
path improvements along east side of Terminal 91 Uplands and shall endeavor to
require Expedia to contribute to funding these improvements.
iii. Within the to-be-defined parameters of the new Transportation Fund, the City shall
explore signal improvements (stemming from Mercer corridor) and implement
changes as future modeling may require.
iv. The City shall provide for the separation from freight for bike and pedestrian
access/improvements leading into the Uptown neighborhood (West Mercer Place).
v. The City shall partner with King County Metro to provide additional Rapid Ride service
to serve Interbay, South Lake Union and Uptown neighborhoods, thereby endeavoring
to remove additional single occupancy vehicles from the road.
c. Port Responsibilities
i. The Port will provide $5 million towards the Transportation Fund, once the parameters
are defined, to make transportation improvements dedicated to roadway
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improvements in the 15 Avenue W/Elliott Avenue W/Mercer Street corridor, including
areas around Seattle Center. The Port's contribution to the Transportation Fund is
contingent upon the City entering into a future development agreement for Key Arena.
3. TERMS AND CONDITIONS
3.1. Implementing Agency: Each individual projects implementing agency shall ensure compliance
for the respective project with the State Environmental Policy Act (SEPA) and the National
Environmental Policy Act (NEPA), and shall be responsible for obtaining all necessary permits
and/or agreements.
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3.2. Contact Persons: The Parties to this Agreement shall designate person(s) to act as liaison for
the Program and related projects. The contact persons shall meet on a mutually agreed
scheduled basis.
3.3. Other Agreements: Given the broad scope of the Program, the Parties agree to reference other
relevant agreements as needed, including, but not limited to, the agreements attached in the
Exhibits section.
3.4. Public Involvement: The Parties shall be responsible for the continued public involvement and/or
community outreach process for their respective led projects. Each shall develop a Public
Involvement Plan with input from the other Party.
3.5. M/W/DBE and Small Business Utilization: In implementing the Projects, the City and the Port
shall maximize the opportunities and participation of minority-owned, women-owned, and
disadvantaged businesses, including those small businesses within the Seattle-Metropolitan
region, within the rules and regulations of Federal funded projects.
4. COST REIMBURSEMENT AND FUNDING
The Port Commission authorizes the execution of this MOU and agrees to contribute an amount not to
exceed Fifteen-Million Dollars ($15,000,000) to the City as set forth in Section 2 Scope of Work subject to
the following conditions:
4.1. All environmental review and permitting will be completed in accordance with Federal, State, and
local requirements;
4.2. The Port and City continue to work together to ensure that the Project development and
implementation during design and construction meet the needs of both Parties. Prior to
application for the final payment for the Fifteen-Million Dollars ($15,000,000), the City shall
provide the opportunity for the Port to inspect and verify that the requirements of Physical
Completion have been met for each of the Projects that are subject to this Agreement. Once the
Port has verified that the requirements for Physical Completion have been satisfied for each
Project that is subject to this Agreement, the City shall issue a letter to the Port requesting the
Port issue final payment upon Final Acceptance.
4.3. The Lander Project is constructed as described in the August 31, 2016 MOA (Exhibit C);
4.4. The Port's obligations under this MOU shall not exceed Fifteen Million Dollars ($15,000,000) as
a cash payment, but may be reduced as provided in Section 4.7.
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4.5. For the 15 Ave W/Elliott Avenue W/Mercer Street corridor, including areas around Seattle
Center, as a portion of the total payment amount set forth in Section 4.4, the Port will reimburse
the City Five million dollars ($5,000,000) for costs expended on verifiable improvements in the
corridor and in coordination with the joint project group to be established under 2.3.a.i.
4.6. If either Party fails to fulfill its obligations outlined under the terms of this MOU, then either party
may elect pursue a dispute resolution process under Section 8. In the spirit of the cooperation
for which this MOU was entered, in addition to the processes outlined in Section 8, the dispute
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shall be discussed at the quarterly meeting at a minimum of two separate occasions to attempt
to find resolution prior to pursuit of legal action or termination (Section 10).
4.7. In the event the total Lander Project cost estimate at the time of the Lander Project's Final
Acceptance ("Final Cost") is less than the Lander Project estimate at the time of bid ("Bid
Estimate"), the Port's total funding contribution to the Lander Project shall be adjusted by
reducing the Port's contribution, up to Five Million Dollars ($5,000,000) prior to reduction in City
contributions. That adjustment to the Port's contribution shall be reduced by any already
incurred matching investments by the City in other freight priorities (as outlined in section
2.2.b.i).
5. AMENDMENT
Either Party may request amendments to the provisions contained in this Agreement. Any amendments
to this Agreement must be mutually agreed to by both Parties, in writing and executed with the same
formalities as the original Agreement.
6. NOTIFICATION
Any notice required or permitted to be given pursuant to this Agreement shall be in writing, and shall be
sent postage prepaid by U.S. Mail, return receipt requested, to the following addresses unless otherwise
indicated by the Parties to this Agreement:
To the City: Jessica Murphy, Project Manager
700 Fifth Ave, Suite 3700
PO Box 4996
Seattle, WA 98124-4996
To the Port: Geraldine Poor, Regional Transportation Manager
Port of Seattle
2711 Alaskan Way
Seattle, WA 98121
7. RECORDS RETENTION AND AUDIT
During the progress of the work on the Project and for a period not less than three (3) years from the date
of final payment by the Port to the City, the records and accounts pertaining to the Project and accounting
thereof are to be kept available for inspection and audit by the Port and the City shall provide the Port
with copies of all records, accounts, documents, or other data pertaining to the Project upon the Port's
request. If any litigation, claim, or audit is commenced, the records and accounts along with supporting
documentation shall be retained until all litigation, claims, or audit findings have been resolved, even
though such litigation, claim, or audit continues past the typical three year retention period. This provision
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is not intended to alter or amend records retention requirements established by applicable state and
federal laws.
8. DISPUTES
The designated representatives under Section 6.0, shall use their best efforts to resolve disputes between
the Parties. If the designated representatives are unable to resolve a dispute, then the responsible
Project directors for each Party shall review the matter and attempt to resolve it. If the Project directors
are unable to resolve the dispute, the matter shall be reviewed by the department director or chief
executive officer of each Party or his or her designee. The Parties agree to exhaust each of these
procedural steps before seeking to resolve disputes in a court of law or any other forum.
9. EFFECTIVENESS AND DURATION
This Agreement is effective upon the last date of execution by both Parties and will remain in effect until
Project completion, unless otherwise stated herein or unless amended or terminated.
10. TERMINATION
Either Party may terminate this Agreement at any time upon thirty (30) days written notice to the other
Party, but said written notice of termination shall not occur sooner than sixty (60) days from the execution
of this Agreement. If the Port decides to terminate this Agreement, the Port shall reimburse the City an
amount equivalent to the Port's proportionate share of those obligations that the City has contractually
undertaken consistent with this Agreement prior to receiving the Port's notice of termination, but in no
case shall the Port be obligated to reimburse the City any amounts in excess of the Port's Project funding
contribution set forth in Section 4 of this Agreement.
11. INDEMNIFICATION AND HOLD HARMLESS
10.1 To the maximum extent permitted by law, each party shall protect, defend, indemnify, and hold
harmless the other party, its officers, employees, and agents from any and all costs, claims,
judgments, and/or awards of damages, arising out of or in any way resulting from the negligent
acts or omissions of said indemnifying party, its officers, employees, and/or agents. Each party
agrees that its obligations under this subsection extend to any claim, demand, and/or cause of
action brought by or on behalf of any of its employees or agents. Each party, by mutual
negotiation, hereby waives, as respects the other party only, any immunity that would otherwise
be available to it against such claims under the Industrial Insurance provisions of Title 51 RCW.
In the event the indemnified party incurs any judgment, award, and/or cost arising therefrom,
including attorney's fees to enforce this provision, all such judgments, awards and costs shall
be recoverable from the indemnifying party.
10.2 The indemnification, hold harmless, and/or waiver obligation described in Section 10.1 of this
Agreement shall survive the termination of this Agreement.
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12. VENUE
This Agreement shall be deemed to be made in the County of King, State of Washington, and the legal
rights and obligations of the City and Port shall be determined in accordance with the laws of the State of
Washington. All legal actions in connection with this Agreement shall be brought in the County of King,
State of Washington.
12. OTHER PROVISIONS
12.1 Severability. A determination by a court of competent jurisdiction that any provision of
this Agreement or any part thereof is illegal or unenforceable shall not cancel or invalidate the remainder
of such provision of this Agreement, which shall remain in full force and effect.
12.2 Interpretation. The captions of the Sections or Paragraphs of this Agreement are not a
part of the terms or provisions of this Agreement. Whenever required by the context of this Agreement,
the singular shall include the plural and the plural shall include the singular. The masculine, feminine and
neuter genders shall each include the other.
12.3 Waivers. All waivers shall be in writing and signed by the waiving Party. Either Party's
failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either Party
from enforcing that provision or any other provision of this Agreement in the future.
12.4 Force Majeure. If either Party cannot perform any of its obligations due to events
beyond its reasonable control (other than the payment of money), the time provided for performing such
obligations shall be extended by a period of time equal to the duration of such events. Events beyond a
Party's reasonable control include, but are not limited to, acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or materials, government regulations or
restrictions and weather conditions.
12.5 Joint Drafting Effort. This Contract shall be considered for all purposes as prepared by
the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the
preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
12.6 Third Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than the Port and the City, and
all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of the Port and the City and not for the benefit of any other party.
12.7 Authority. Each individual executing this Agreement on behalf of the Port or the City
represents and warrants that he or she is duly authorized to execute and deliver the Agreement on behalf
of the Port or the City.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement which shall be effective upon
the date of recording.
PORT OF SEATTLE THE CITY OF SEATTLE
___________________________ ___________________________
David Soike, Interim Executive Director Edward B. Murray, Mayor
Port of Seattle City of Seattle
Date: ________________ Date: ________________
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Exhibit A: MOU Between the Port of Seattle and the City of Seattle to Establish a Railroad Quiet
Zone, authorized by The Northwest Seaport Alliance on August 1, 2017
Exhibit B: MOU Between the Port of Seattle and the City of Seattle to Permanently Close W
Marginal Way SW, Authorized by The Northwest Seaport Alliance on August 1, 2017
Exhibit C: MOA Between Port of Seattle and City of Seattle, Lander Project, authorized by the Port
of Seattle Commission, executed August 31, 2016
Exhibit D: MOU For Intergovernmental Cooperation between the Port of Seattle and The City of
Seattle for Future Roadway Repair, authorized by the Port of Seattle and the Seattle City
Council, executed October 30, 2015
Exhibit E: Map of locations referenced in this MOU
Exhibit F: Current Lander Summary Estimates of Cost and Funding Shares
Exhibit G: EMW-HHN Project details
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Exhibit A
Copy of Final ***The NWSA Managing Members authorized execution on August 1, 2017
MEMORANDUM OF UNDERSTANDING BETWEEN THE PORT OF SEATTLE AND
THE CITY OF SEATTLE TO ESTABLISH A RAILROAD QUIET ZONE
THIS MEMORANDUM OF UNDERSTANDING TO ESTABLISH A RAILROAD QUIET ZONE ("MOU") is made
and entered into by and between the City of Seattle, a Washington first class city and municipal
corporation, through its Department of Transportation ("City" or "SDOT") and the Port of Seattle
("Port"), either of which may be referred to hereinafter individually as "Party" or collectively as the
"Parties."
WHEREAS, The Port proposes to rehabilitate the existing marine cargo facilities at Terminal 5 at the west
margin of the West Waterway in Elliott Bay; and
WHEREAS, the proposed changes include modification of intermodal rail facilities; and
WHEREAS, a Final Environmental Impact Statement prepared by the Port of Seattle identifies train horn
noise required for public and private crossings and presence of human activity as an annoyance noise;
and
WHEREAS, the Port, as part of its permit application for a Shoreline Substantial Development Permit,
permit application Number 3019071, received from the City of Seattle ("City") "Analysis and Decision of
the Director of the Seattle Department of Construction and Inspections," dated April 3, 2017 ("City
Decision");
NOW, THEREFORE, in consideration of mutual promises, covenants and MOU terms set forth herein, and
for other good and valuable consideration, the sufficiency of which is hereby acknowledged by both
Parties, the Parties agree as follows:
1. PURPOSE
1.1. The purpose of this MOU is to describe how the Port and City will work together to secure
approval of a U.S. Federal Railroad Administration ("FRA") designated quiet zone between the
west end of the train bridge across the West Waterway of the Duwamish and the Terminal 5
gate ("Quiet Zone").
2. PORT RESPONSIBILITIES
2.1. The Port shall provide the funding to complete a scope of work and final design for appropriate
measures to at-grade crossings and the rail corridor to reduce the need for locomotive horns
that create noise impacts exceeding applicable standards and work together with the City to
qualify the rail use area as a FRA-designated quiet zone.
2.2. The Port shall perform outreach and/or agreement with stakeholders as required through the
FRA quiet zone approval process.
2.3. The Port shall convene regular meetings of Port and SDOT representatives to review proposed
scope of work, infrastructure design and installation, technical analysis, and regulatory
requirements.
2.4. After FRA approves final design for the Quiet Zone, the Port shall fund construction and
implementation of infrastructure and other measures in the Scope of Work and final design as
approved by SDOT and performed by BNSF or its designee.
2.5. If work performed by BNSF or its designee requires correction as identified by SDOT at the
completion of construction and implementation, the Port shall fund the cost of these
corrections.
2.6. The Port shall provide funding for the annual maintenance of the Quiet Zone as determined by
BNSF Railway as necessary to retain FRA quiet zone designation.
3. CITY RESPONSIBILIITES
3.1. SDOT shall provide general oversight to ensure that Port responsibilities under this MOU are
completed consistent with the terms of the City Decision.
3.2. SDOT shall review and provide direction to the Port or designated agent to ensure that after
completion of Port responsibilities the rail use area will qualify for FRA quiet zone designation.
3.3. SDOT may prepare one or more analyses to assess consistency with City Decision and FRA quiet
zone designation.
3.4. SDOT shall inform the Director of the Seattle Department of Construction and Inspections or his
designee as to SDOT's assessment of completed Port responsibilities.
3.5. SDOT shall prepare and submit an analysis to BNSF Railway for engineering and construction.
3.6. SDOT, as required by FRA quiet zone regulations, shall come to agreement with BNSF Railway
regarding final Quiet Zone design and implementation.
3.7. SDOT will issue the Notice to Proceed to BNSF Railway or its designated contractor to initiate
construction.
3.8. At the completion of each improvement, the City will identify any work that does not meet the
requirements as necessary to obtain FRA quiet zone designation, prepare a specific list of
revisions, and submit them to BNSF or its designee for correction. The Port will fund these
corrections as identified in Section 2.5.
3.9. SDOT will act as official petitioner to FRA for the purposes of establishing an FRA-designated
quiet zone.
4. INVOICING AND PAYMENT
4.1. SDOT may obtain reimbursement for actual costs from the Port for the purposes of providing
oversight and direction to the Port toward completing Port responsibilities and for completing
the Quiet Zone. Both Parties, in good faith, will work together to determine a reasonable
methodology for establishing the total cost of work performed.
4.2. SDOT shall keep records as appropriate to describe work performed and actual costs incurred
and submit an invoice on a regular basis, not more than once a month, for reimbursement for
the actual costs incurred by SDOT, subject to any appropriations and/or other authorizations
that may be necessary.
5. OWNERSHIP OF DOCUMENTATION
5.1. The Port shall own all documentation prepared by the Port to complete each Port
responsibility. The Port shall reasonably make available all interim and final documentation to
the City upon request for the purposes of timely oversight and direction by the City.
5.2. The City shall own all documentation prepared by the City for review and concurrence and for
purposes of applying to establish the Quiet Zone. The City shall reasonably make available all
interim and final documentation upon request for the purposes of review and comment by the
Port.
5.3. The Port and City shall notify the other Party of any requests for access to materials or
information prepared by either the Port or City by persons or entities outside this MOU. Both
Parties recognize that they are public entities and are subject to the public disclosure laws of
the State of Washington, and are not liable for breach if they disclose documents as required.
6. INDEMNIFICATION
6.1. Indemnification and Hold Harmless. Each Party shall protect, defend, indemnify, and save
harmless the other Party, its officers, officials, employees, and agents while acting within the
scope of their employment as such, from any and all suits, costs, claims, actions, losses,
penalties, judgments, and /or awards of damages, of whatsoever kind arising out of, in
connection with, or incident to activities undertaken pursuant to this MOU caused by or
resulting from each Party's (or their respective agents and contractors) own negligent acts or
omissions. Each Party agrees that it is fully responsible for the acts and omissions of its own
contractors and subcontractors, their employees, and agents, acting within the scope of their
employment as such, as it is for the acts and omissions of its own employees and agents. Each
Party agrees that its obligations under this provision extend to any claim, demand, and/or
cause of action brought by or on behalf of any of its employees or agents. The foregoing
indemnity is specifically and expressly intended to constitute a waiver of each Party's immunity
under Washington's Industrial Insurance Act, RCW Title 51, as respects the other Party only,
and only to the extent necessary to provide the indemnified Party with a full and compete
indemnity of claims made by the indemnitor's employees. The Parties acknowledge that these
provisions were specifically negotiated and agreed upon by them. Each Party shall require
similar indemnification language in all agreements with contractors and subcontractors entered
into in conjunction with this MOU.
7. EFFECTIVE DATE AND TERM OF MOU
This MOU and its obligations shall take effect when fully executed by all Parties. The MOU will end
when the Port has completed construction as per the approved and agreed design; provided,
however, the Port will retain responsibility for funding for annual maintenance of the Quiet Zone as
determined by BNSF Railway.
8. TERMINATION
8.1. Termination for Cause. Either Party may terminate this MOU with cause by giving the other
Party written notice of such termination at least (30) calendar days prior to the effective date of
termination.
9. ENTIRE MOU AND AMENDMENTS
9.1. Entire MOU. This document contains all term, conditions and provisions agreed upon by the
Parties hereto, and shall not be modified except by written amendment.
9.2 Amendments. Except as otherwise provided for in this MOU, amendments may be made to this
MOU within applicable authority for and on behalf of the City by its Transportation Director or
authorized representative, and for and on behalf of the Port by its Director of Seaport
Environmental and Planning or authorized representative and shall be in writing and executed
by such duly authorized representative of each Party. No variation or alteration of the terms of
this MOU shall be valid unless made in writing and signed by authorized representatives of the
Parties hereto.
10. NOTIFICATION AND IDENTIFICATION OF CONTACTS
10.1. Notice. Any notice or communication, other than termination for cause as provided for in
Subsection 8.1, required or permitted to be given pursuant to this MOU shall be in writing, and
shall be sent postage prepaid by U.S. Mail, return receipt request, to the contact persons and
addresses identified in Subsection 10.2 of this MOU unless otherwise indicated by the Parties in
writing.
10.2 Contact Persons and Addresses. The contact persons for the administration of this MOU are
as follows:
City of Seattle
Christopher Eaves, P.E.
700 5th Avenue, Suite 3800
Seattle, WA 98124-4996
(206) 684-4524
Port of Seattle
Anne Porter
2711 Alaskan Way
Seattle, WA 98121
(206) 787-3133
11. DISPUTE RESOLUTION PROCESS
The Parties, through their designated representatives identified in Subsection 10.2 of this MOU,
shall use their best efforts to resolve any disputes pertaining to this MOU that may arise between
the Parties. If these designated representatives are unable to resolve a dispute, the responsible
project leads of both Parties shall review the matter and attempt to resolve it. If they are unable to
resolve the dispute, the matter shall be reviewed by the department directors of the Parties or their
designees. The Parties agree to exhaust each of these procedural steps before seeking to resolve
disputes in a court of law or any other forum.
12. RECORDS RETENTION AND AUDIT
All MOU activities must be documented, including assessments, review comments, agendas and
minutes of meetings, copies of invoices, or financial system expense reports documenting these
items.
13. LEGAL RELATIONS
13.1. No Partnership or Joint Venture. No joint venture, agent-principal relationship or partnership
is formed as result of this MOU. No employees or agents of one Party or any of its contractors
or subcontractors shall be deemed, or represent themselves to be, employees or agents of the
other Party.
13.2. No Third Party Beneficiaries. It is understood and agreed that this MOU is solely for the
benefit of the Parties hereto and gives no right to any other person or entity.
13.3. Assignment. Neither this MOU, nor any interest herein, may be assigned by either Party
without the prior written consent of the other Party.
13.4. Binding on Successors and Assigns. This MOU, and all of its terms, provisions, conditions, and
covenants, together with any exhibits and attachments now or hereafter made a part hereof,
shall be binding on the Parties and their respective successors and assigns.
13.5. Mutual Negotiation and Construction. This MOU and each of the terms and provisions
hereof shall be deemed to have been explicitly negotiated between, and mutually drafted by
both Parties.
13.6. Waiver of Default. Waiver of any default shall not be deemed to be a waiver of any
subsequent default; as such, failure to require full and timely performance of any provision at
any time shall not waive or reduce the right to insist upon complete and timely performance of
any other provision thereafter. Waiver of breach of any provision of this MOU shall not be
deemed to be a waiver of any other or subsequent breach and shall not be construed to be
modification of the terms of this MOU unless stated to be such in writing, signed by duly
authorized representatives of the Parties, and attached to the original MOU.
13.7. Applicable Law. This MOU shall be governed by and construed in accordance with the laws of
the State of Washington.
13.8. Jurisdiction and Venue. The King County Superior Court, situated in Seattle, Washington,
shall have exclusive jurisdiction and venue over any legal action arising under this MOU.
13.9. Rights and Remedies. The Parties' rights and remedies in this MOU are in addition to any
other rights and remedies provided by law.
13.10. Severability. If any provisions of this MOU are held invalid by a court of competent
jurisdiction, the remainder of the MOU shall not be affected thereby if such remainder would
then continue to serve the purposes and objectives originally contemplated by the Parties.
13.11. Entire MOU. This MOU embodies the Parties' entire understanding and MOU on the issues
covered by it, except as may be supplemented by subsequent written amendment to this MOU,
and supersedes any prior negotiations, representations or draft MOUs on this matter, either
written or oral.
13.12. Survival. Each of the provisions of this Section 13 (Legal Relations) shall survive any
expiration or termination of this MOU.
14. EXECUTION OF MOU COUNTERPARTS
14.1. This MOU may be executed in two (2) counterparts, either of which shall be regarded for all
purposes as an original.
IN WITNESS THEREOF, the Parties hereto have executed this MOU on the date indicated under their
signatures.
The Port of Seattle The City of Seattle
________________________________ __________________________________
Signature Date Signature Date
________________________________ __________________________________
Type or Print Name Type or Print Name
________________________________ __________________________________
Title Title
________________________________ __________________________________
________________________________ __________________________________
Exhibit B
Copy of Final ***The NWSA Managing Members authorized execution on August 1, 2017
MEMORANDUM OF UNDERSTANDING BETWEEN THE PORT OF SEATTLE AND
THE CITY OF SEATTLE TO PERMANENTLY CLOSE W MARGINAL WAY SW
THIS MEMORANDUM OF UNDERSTANDING TO PERMANENTLY CLOSE W MARGINAL WAY SW ("MOU") is
made and entered into by and between the City of Seattle, a Washington first class city and municipal
corporation, through its Department of Transportation ("City" or "SDOT") and the Port of Seattle
("Port"), either of which may be referred to hereinafter individually as "Party" or collectively as the
"Parties."
WHEREAS, The Port proposes to rehabilitate the existing marine cargo facilities at Terminal 5 at the west
margin of the West Waterway in Elliott Bay; and
WHEREAS, the proposed changes include redesign of entrance/exit gates and access points; and
WHEREAS, a Final Environmental Impact Statement prepared by the Port of Seattle states that
eliminating the north leg of the five-legged SW Spokane Street / W Marginal Way SW / Chelan Avenue
SW / Delridge Way SW intersection would dramatically improve traffic operations; and
WHEREAS, the Port, as part of its permit application for a Shoreline Substantial Development Permit,
permit application Number 3019071, received from the City of Seattle ("City") "Analysis and Decision of
the Director of the Seattle Department of Construction and Inspections," dated April 3, 2017 ("City
Decision");
NOW, THEREFORE, in consideration of mutual promises, covenants and MOU terms set forth herein, and
for other good and valuable consideration, the sufficiency of which is hereby acknowledged by both
Parties, the Parties agree as follows:
1. PURPOSE
1.1. The purpose of this MOU is to describe how the Port and City will work together to accomplish
a permanent closure of the surface railroad crossing of W Marginal Way SW north of SW
Spokane St, across the Terminal 5 lead railroad tracks, to all motorized traffic, and retain and
upgrade nonmotorized access.
1.2. The closure will take place before or when the number of lifts at the Terminal 5 On-Dock
Intermodal Yard exceeds 245,000 lifts in a 12-month period (equivalent to 426,300 intermodal
TEUs).
2. PORT RESPONSIBILITIES
2.1. The Port shall provide the funding to complete a scope of work that will identify appropriate
measures to design and implement street closure measures in compliance with Condition 2 in
the City Decision.
2.2. The Port shall provide the funding to implement measures associated with the street closure
identified in the scope of work defined in 2.1 and as approved by SDOT, before or when the lift
volumes in Section 1.2 are reached.
2.3. The Port shall coordinate with adjacent businesses north of West Marginal Way SW between
the Terminal 5 gate and under the West Seattle Freeway prior to implementation of any access,
signalization, signage, or striping changes in the public right-of-way adjacent to and connecting
Terminal 7 to West Marginal Way SW under the West Seattle Freeway and prior to approval by
SDOT.
2.4. The Port shall convene regular meetings of Port and SDOT representatives to review the
proposed scope of work and to implement the street closure.
2.5. The Port shall retain nonmotorized access across active railroad tracks at W Marginal Way SW,
and upgrade as needed to maintain access before and after the street is closed to motorized
traffic.
2.6. The Port shall install a pedestrian pathway extending southeast from the northeast corner of
the SW Spokane St/Delridge Way SW/W Marginal Way SW intersection to the crossing to the
east for use when the primary nonmotorized crossing at W Marginal Way SW is blocked by a
train.
2.7. The Port shall complete an analysis of the existing Terminal 5 bridge to determine if it is feasible
to reconfigure existing lanes to accommodate Terminal 5 truck service as well as emergency
access and heavy vehicle movement to industrial sites adjacent to Terminal 5, and north and
east of rail lines that provide service to the terminal and the West Seattle yard. The analysis
will specify lane dimensions, truck circulation and queue capacity for all lanes. The Port will
submit the analysis to SDOT for review and approval of the re-channelization changes should
the study indicate that the bridge could support three lanes of traffic. If the Port, SDOT and/or
the Seattle Fire Department (SFD) determine that the existing bridge structure is insufficient to
provide the three-lane cross section, the Port will provide alternate truck and emergency
access to these sites equivalent to the mitigation provided by the three-lane cross section
subject to the review and approval of SDOT and SPD, to be implemented prior to occupancy of
Terminal 5 by a tenant.
2.8. The Port shall monitor and report the number of lifts annually at the Terminal 5 On-Dock
Intermodal Yard to SDOT, noting specifically when the number of lifts approaches the threshold
for street closure.
2.9. If work performed by the Port or its designee requires correction to meet the agreed plan per
2.1 above as identified by SDOT at the completion of road closure construction, the Port shall
fund the cost of corrections.
3. CITY RESPONSIBILIITES
3.1. SDOT shall provide general oversight, direction, review and approval to ensure that Port
responsibilities under this MOU are completed consistent with the terms of the Decision.
3.2. SDOT shall provide direction, review, and approval of all Port measures needed to safely close
the street to ensure that after completion of Port responsibilities that measures will promote
safe and efficient transportation operations.
3.3. At the completion of each improvement, the City will identify any work that does not meet the
terms of the Decision, prepare a specific list of revisions, and submit them to the Port or its
designee for correction.
3.4. For purposes of safety, SDOT may approve construction of quiet zone improvements as set
forth in the memorandum of understanding between the Port and the City to establish a
railroad quiet zone, that supersede the schedule for providing public access using permanent
nonmotorized access improvements. Reasonable temporary nonmotorized access shall be
provided during construction.
3.5. SDOT may prepare one or more additional analyses to assess design, implementation and
efficacy of Port measures to ensure consistency with the Decision.
3.6. SDOT shall inform the Director of the Seattle Department of Construction and Inspections or his
designee as to SDOT's assessment of completed Port responsibilities.
4. INVOICING AND PAYMENT
4.1. SDOT may obtain reimbursement for actual costs from the Port for the purposes of providing
oversight and direction to the Port toward completing Port responsibilities and for completing
any assessment of Port-implemented measures. Both Parties, in good faith, will work together
to determine a reasonable methodology for establishing the total cost of work performed.
4.2. SDOT shall keep records as appropriate to describe work performed and actual costs incurred
and, if it is obtaining reimbursement for actual costs, submit an invoice on a regular basis, not
more than once a month, for reimbursement for the actual costs incurred by SDOT, subject to
any appropriations and/or other authorizations that may be necessary.
5. OWNERSHIP OF DOCUMENTATION
5.1. The Port shall own all documentation prepared by the Port to complete each Port
responsibility. The Port shall reasonably make available all interim and final documentation to
the City upon request for the purposes of timely oversight and direction by the City.
5.2. The City shall own all documentation prepared by the City for review and concurrence and for
purposes of assessing Port measures. The City shall reasonably make available all interim and
final documentation upon request for the purposes of review and comment by the Port.
5.3. The Port and City shall notify the other Party of any requests for access to materials or
information prepared by either the Port or City by persons or entities outside this MOU. Both
Parties recognize that they are public entities and are subject to the public disclosure laws of
the State of Washington, and are not liable for breach if they disclose documents as required.
6. INDEMNIFICATION
6.1. Indemnification and Hold Harmless. Each Party shall protect, defend, indemnify, and save
harmless the other Party, its officers, officials, employees, and agents while acting within the
scope of their employment as such, from any and all suits, costs, claims, actions, losses,
penalties, judgments, and /or awards of damages, of whatsoever kind arising out of, in
connection with, or incident to activities undertaken pursuant to this MOU caused by or
resulting from each Party's (or their respective agents and contractors) own negligent acts or
omissions. Each Party agrees that it is fully responsible for the acts and omissions of its own
contractors or subcontractors, their employees and agents, acting within the scope of their
employment as such, as it is for the acts and omissions of its own employees and agents. Each
Party agrees that its obligations under this provision extend to any claim, demand, and/or
cause of action brought by or on behalf of any of its employees or agents. The foregoing
indemnity is specifically and expressly intended to constitute a waiver of each Party's immunity
under Washington's Industrial Insurance Act, RCW Title 51, as respects the other Party only,
and only to the extent necessary to provide the indemnified Party with a full and compete
indemnity of claims made by the indemnitor's employees. The Parties acknowledge that these
provisions were specifically negotiated and agreed upon by them. Each Party shall require
similar indemnification language in all agreements with contractors or subcontractors entered
into in conjunction with this MOU.
7. EFFECTIVE DATE AND TERM OF MOU
7.1. This MOU and its obligations shall take effect when fully executed by all Parties. The MOU will
end when the Port has completed construction as per the approved and agreed design.
8. TERMINATION
8.1. Termination for Cause. Either Party may terminate this MOU with cause by giving the other
Party written notice of such termination at least (30) calendar days prior to the effective date of
termination, and allowing the other Party to remedy the cause of termination.
9. ENTIRE MOU AND AMENDMENTS
9.1. Entire MOU. This document contains all term, conditions and provisions agreed upon by the
Parties hereto, and shall not be modified except by written amendment.
9.2 Amendments. Except as otherwise provided for in this MOU, amendments may be made to this
MOU within applicable authority for and on behalf of the City by its Transportation Director or
authorized representative, and for and on behalf of the Port by its Director of Seaport
Environmental and Planning or authorized representative and shall be in writing and executed
by such duly authorized representative of each Party. No variation or alteration of the terms of
this MOU shall be valid unless made in writing and signed by authorized representatives of the
Parties hereto.
10. NOTIFICATION AND IDENTIFICATION OF CONTACTS
10.1. Notice. Any notice or communication, other than termination for cause as provided for in
Subsection 8.1, required or permitted to be given pursuant to this MOU shall be in writing, and
shall be sent postage prepaid by U.S. Mail, return receipt request, to the contact persons and
addresses identified in Subsection 10.2 of this MOU unless otherwise indicated by the Parties in
writing.
10.2 Contact Persons and Addresses. The contact persons for the administration of this MOU are
as follows:
City of Seattle
Christopher Eaves, P.E.
700 5th Avenue, Suite 3800
Seattle, WA 98124-4996
(206) 684-4524
Port of Seattle
Anne Porter
2711 Alaskan Way
Seattle, WA 98121
(206) 787-3133
11. DISPUTE RESOLUTION PROCESS
The Parties, through their designated representatives identified in Subsection 10.2 of this MOU,
shall use their best efforts to resolve any disputes pertaining to this MOU that may arise between
the Parties. If these designated representatives are unable to resolve a dispute, the responsible
project leads of both Parties shall review the matter and attempt to resolve it. If they are unable to
resolve the dispute, the matter shall be reviewed by the department directors of the Parties or their
designees. The Parties agree to exhaust each of these procedural steps before seeking to resolve
disputes in a court of law or any other forum.
12. RECORDS RETENTION AND AUDIT
All MOU activities must be documented, including assessments, review comments, agendas and
minutes of meetings, copies of invoices, or financial system expense reports documenting these
items.
13. LEGAL RELATIONS
13.1. No Partnership or Joint Venture. No joint venture, agent-principal relationship or partnership
is formed as result of this MOU. No employees or agents of one Party or any of its contractors
or subcontractors shall be deemed, or represent themselves to be, employees or agents of the
other Party.
13.2. No Third Party Beneficiaries. It is understood and agreed that this MOU is solely for the
benefit of the Parties hereto and gives no right to any other person or entity.
13.3. Assignment. Neither this MOU, nor any interest herein, may be assigned by either Party
without the prior written consent of the other Party.
13.4. Binding on Successors and Assigns. This MOU, and all of its terms, provisions, conditions, and
covenants, together with any exhibits and attachments now or hereafter made a part hereof,
shall be binding on the Parties and their respective successors and assigns.
13.5. Mutual Negotiation and Construction. This MOU and each of the terms and provisions
hereof shall be deemed to have been explicitly negotiated between, and mutually drafted by
both Parties.
13.6. Waiver of Default. Waiver of any default shall not be deemed to be a waiver of any
subsequent default; as such, failure to require full and timely performance of any provision at
any time shall not waive or reduce the right to insist upon complete and timely performance of
any other provision thereafter. Waiver of breach of any provision of this MOU shall not be
deemed to be a waiver of any other or subsequent breach and shall not be construed to be
modification of the terms of this MOU unless stated to be such in writing, signed by duly
authorized representatives of the Parties, and attached to the original MOU.
13.7. Applicable Law. This MOU shall be governed by and construed in accordance with the laws of
the State of Washington.
13.8. Jurisdiction and Venue. The King County Superior Court, situated in Seattle, Washington,
shall have exclusive jurisdiction and venue over any legal action arising under this MOU.
13.9. Rights and Remedies. The Parties' rights and remedies in this MOU are in addition to any
other rights and remedies provided by law
13.10. Severability. If any provisions of this MOU are held invalid by a court of competent
jurisdiction, the remainder of the MOU shall not be affected thereby if such remainder would
then continue to serve the purposes and objectives originally contemplated by the Parties.
13.11. Entire MOU. This MOU embodies the Parties' entire understanding and MOU on the issues
covered by it, except as may be supplemented by subsequent written amendment to this MOU,
and supersedes any prior negotiations, representations or draft MOUs on this matter, either
written or oral.
13.12. Survival. Each of the provisions of this Section 13 (Legal Relations) shall survive any
expiration or termination of this MOU.
14. EXECUTION OF MOU COUNTERPARTS
14.1. This MOU may be executed in two (2) counterparts, either of which shall be regarded for all
purposes as an original.
IN WITNESS THEREOF, the Parties hereto have executed this MOU on the date indicated under their
signatures.
The Port of Seattle The City of Seattle
________________________________ __________________________________
Signature Date Signature Date
________________________________ __________________________________
Type or Print Name Type or Print Name
________________________________ __________________________________
Title Title
________________________________ __________________________________
________________________________ __________________________________
Exhibit C
Page 2
WHEREAS, the Port supported the City's application for a Fostering Advancements In Shipping
And Transportation For The Long-Term Achievement Of National Efciencies (FASTLANE) grant and for
which a $45,000,000 award is currently proposed, $8,000,000 Freight Mobility Strategic Investment Board
(FMSIB) grant, and various grants from the Puget Sound Regional Council;
NOW, THEREFORE, the Parties agree as follows:
1. SCOPE OF WORK
1.1. Project Title: The S Lander St Grade Separation Project (CIP Project TC366150).
1.2. Description: The Project will construct a bridge on S Lander St between 1St Ave S and 4th Ave S
spanning the BNSF mainline railroad tracks, including a separated multi-use path (or equivalent
separated facility), and four, 11-feet travel lanes for vehicles. Intersections at 1St and 4th Avenues
provide for separated left-turning movements with sufcient capacity for trucks to clear the
intersection. The grade will not exceed 7.5% and signalization will be implemented such that trucks
are not predicted to need to stop on the uphill grade based on the 2016 Transportation Discipline
Report (DRAFT dated June 30, 2016). The construction phase cost of the Project is currently
estimated to be One Hundred and Twenty-Five Million Dollars ($125,000,000) by the City.
1.3. Schedule: The Project is anticipated to begin construction in 2018 and open to trafc in late
2019, with Final Acceptance expected in 2020.
2. TERMS AND CONDITIONS
2.1. Implementing Agency: As the implementing agency the City shall ensure Project compliance
with the State Environmental Policy Act (SEPA) and the National Environmental Policy Act
(NEPA), and shall be responsible for obtaining all necessary permits and/or agreements. The
City shall be responsible for accomplishing all aspects of the Project scope.
2.2. Contact Persons: The Parties to this Agreement shall designate person(s) to act as liaison for
the Project. The contact persons shall meet on a mutually agreed upon, scheduled basis at a
frequency appropriate to the phase and status of the Project.
2.3. Scope: The Project's dened scope as it relates to freight benets shall be based on input from
the funding partners. Any changes during design or construction to the functionality of the
Project and benets to the Port, as described in Section 1.2, and further illustrated by the
description of Project benets, and the Project plan as provided in Exhibits B and C, shall require
the Port's review to maintain the Port's funding obligation. (See Exhibit B and Exhibit C) The
Port's funding is contingent upon the commitments outlined in Section 1.2.
2.4. System Mobility: The City recognizes that other east-west corridors in the Duwamish provide
signicant utility to the Port. The City shall not reduce capacity on other east-west corridors in
the Duwamish when the Project is completed without providing notice to and
opportunity for
input from the Port. Specically, S Holgate St provides connections from 1St Ave S to 6 Ave S
over the mainline railroad crossing with 4 lanes of capacity, as well as connections from there to
Airport Way and on an elevated bridge to Beacon Hill. The improvements at S Lander St should
add to the mobility in the neighborhood, and are not intended to be offset by other lane
reductions. The City will work with the Port and others to maintain efcient freight mobility
throughout the Duwamish Manufacturing/Industrial Center (MIC). Should there be a specic
proposal to close S Holgate St, or if safety issues arise on S Holgate St or other critical freight
routes, or should the City be required by outside entities to perform mandated actions that
require changes, the City will include the Port in discussions regarding the resolution of the
issue, and specifically discuss how mobility is maintained.
Page 3
2.5. Industrial Lands Protection: The City will support efforts to protect, preserve, and enhance
issues.
industrial lands and highlight the critical connection to freight mobility and other maritime
2.6. that includes a copy of the
Progress Report: The City shall provide the Port with a report
WSDOT/FHWA approved Project schedule (or analogous format), and nal engineer's estimate
with contract bid items or summary of values. At the time of making application for each
Port a progress report. The progress
payment under Section 3, the City shall provide to the
since the last report, an updated
report will include a narrative describing the Project progress
and percent completion of the major
Project construction schedule showing the current progress
that percent
work elements, and a tabulation of the construction progress payments made such
completion can be determined.
issuance of Notices of
2.7. Inspections: The City shall provide opportunities for Project inspection by
Final Inspection and/or Interim Final Inspections by Project Phase to the Port and other funding
within the specied timeframe to
partners. The Port shall participate in inspections of the Project
inform punch-list requirements for Project Completion and to conrm its satisfaction that Project
Prior to
improvements, as dened in Section 1.2 and 2.3, are in place and fully operational.
the Port the
issuance of Notice of Physical Completion (to the Contractor), the City will provide
Opportunity for verication of Final Inspection work. Project conditions existing at the time of the
for nal payment is
Project's Final Inspection, but not identied by the Port until the request
made under 3.6, shall not be grounds for payment to be withheld.
and/or
2.8. Public Involvement: The City shall be responsible for the continued public involvement
Public Involvement Plan
community outreach process for the Project. The City shall develop a
it desire
for the Project with input from the Port and shall be specic with requests should
engagement from the Port.
3. COST REIMBURSEMENT AND FUNDING
contribute an amount of
The Port Commission authorizes the execution of the Agreement and agrees to
Five-Million Dollars ($5,000,000) for the Project subject to the following conditions:
and
3.1. All environmental review and permitting will be completed in accordance with Federal, State,
local requirements;
and
3.2. The Port and City continue to work together to ensure that the Project development
both Parties
implementation during design and construction meet the needs of ;
Section 2.3;
3.3. The Project is constructed as described in Section 1.2 or modied consistent with
a cash
3.4. The Port's total contribution shall not exceed Five Million Dollars ($5,000,000) as
3.7.
payment, but pay be reduced as provided in Sections 3.5 and
Dollars
3.5. Total construction cost is currently estimated to be One-Hundred Twenty-Five Million
($125,000,000). (See Exhibit D, Summary Estimates of Cost and Funding Shares, attached.)
The Port shall make three payments as follows:
a. The rst payment of Two Million ($2,000,000) shall occur after the City has made
least 50% of the construction Contract
progress payments to the Contractor totaling at
value. (This is expected in 2018).
b. The second payment of Two Million Dollars ($2,000,000) shall occur upon Substantial
as issued by the City
Completion (as defined in the construction contract) of the Project,
to the Contractor.
c. The nal payment of One Million Dollars ($1,000,000) shall occur upon Final Acceptance
of Section 2.7 and
(as dened in the construction contract), subject to the requirements
Section 3.6, and the Port's receipt of a progress report and a letter from the City Project
Manager attaching the Certicate of Final Acceptance. This is expected in 2020. The
nal payment may be subject to a reduction based on Section 3.7 of this Agreement.
Page 4
3.6. Prior to application for the nal payment, the City shall provide opportunity for the Port to inspect and
verify that the requirements of Physical Completion have been met in accordance with Section 2.7.
The City shall issue a letter to the Port requesting final payment upon Final Acceptance.
3.7. in the event the total construction contract value at the time of the Project's Final Acceptance
("Final Cost") is less than the Project estimate at the time of bid ("Bid Estimate"), the Port's total
funding contribution shall be adjusted by a percentage that represents the proportional share of
$5,000,000 to the Bid Estimate.
4. AMENDMENT
Either Party may request changes to the provisions contained in this Agreement. Any change to this
Agreement must be mutually agreed to by both Parties, in writing and executed with the same formalities
as the original Agreement.
5. NOTIFICATION
Any notice required or permitted to be given pursuant to this Agreement shall be in writing, and shall be
sent postage prepaid by US. Mail, return receipt requested, to the following addresses unless othenivise
indicated by the Parties to this Agreement:
To the City: Jessica Murphy, Project Manager
700 Fifth Ave, Suite 3700
PO Box 4996
Seattle, WA 98124-4996
To the Port: Geraldine Poor, Regional Transportation Manager
Port of Seattle
2711 Alaskan Way
Seattle, WA 98121
6. RECORDS RETENTION AND AUDIT
During the progress of the work on the Project and for a period not less than three (3) years from the date
of nal payment by the Port to the City, the records and accounts pertaining to the Project and accounting
thereof are to be kept available for inspection and audit by the Port and the City shall provide the Port
with copies of all records, accounts, documents, or other data pertaining to the Project
upon the Port's
request. If any litigation, claim, or audit is commenced, the records and accounts along with supporting
documentation shall be retained until all litigation, claims, or audit ndings have been resolved,
even
though such litigation, claim, or audit continues past the typical three year retention period. This provision
is not intended to alter or amend records retention requirements established by applicable state and
federal laws.
7. DISPUTES
The designated representatives under section 5.0, NOTIFICATION, shall use their best efforts to resolve
disputes between the Parties. If the designated representatives are unable to resolve a dispute, then the
responsible Project directors for each Party shall review the matter and attempt to resolve it. If the Project
directors are unable to resolve the dispute, the matter shall be reviewed by the department director
or
chief executive ofcer of each Party or his or her designee. The Parties agree to exhaust each of these
procedural steps before seeking to resolve disputes in a court of law or any other forum.
Page 5
8. EFFECTIVENESS AND DURATION
will remain in effect until
This Agreement is effective upon the last date of execution by both Parties and
amended or terminated.
Project completion, unless othenNise stated herein or unless
9. TERMINATION
notice to the other
Either Party may terminate this Agreement at any time upon thirty (30) days written
sooner than sixty (60) days from the execution
Party, but said written notice of termination shall not occur
of this Agreement. If either Party decides to terminate this Agreement, the Port shall reimburse the City
of notice of termination,
its proportionate share of all costs payable under this Agreement at the time
to the notice of termination, but
. including those obligations that the City has contractually undertaken prior
of the Port's Five
in no case shall the Port be obligated to reimburse the City any amounts in excess
Million Dollars ($5,000,000) contribution set forth in Section 3 of this Agreement.
10. INDEMNIFICATION AND HOLD HARMLESS
and hold
10.1 To the maximum extent permitted by law, each party shall protect, defend, indemnify,
harmless the other party, its ofcers, employees, and agents from any and all costs, claims,
from the negligent
judgments, and/or awards of damages, arising out of or in any way resulting
Each party
acts or omissions of said indemnifying party, its ofcers, employees, and/or agents.
extend to any claim, demand, and/or cause of
agrees that its obligations under this subsection
mutual
action brought by or on behalf of any of its employees or agents. Each party, by
that would otherwise
negotiation, hereby waives, as respects the other party only, any immunity
be available to it against such claims under the Industrial Insurance provisions of Title 51 RCW.
In the event the indemnied party incurs any judgment, award, and/or cost arising therefrom,
awards and costs shall
including attorney's fees to enforce this provision, all such judgments,
be recoverable from the indemnifying party.
10.1 of this
10.2 The indemnication, hold harmless, and/or waiver obligation described in Section
Agreement shall survive the termination of this Agreement.
11. VENUE
and the legal
This Agreement shall be deemed to be made in the County of King, State of Washington,
in ascordance with the laws of the State of
rights and obligations of the City and Port shall be determined
of King,
Washington. All legal actions in connection with this Agreement shall be brought in the County
State of Washington.
12. OTHER PROVISIONS
of
12.1 Severability. A determination by a court of competent jurisdiction that any provision
or invalidate the remainder
this Agreement or any part thereof is illegal or unenforceable shall not cancel
of such provision of this Agreement, which shall remain in full force and effect.
are not a
12.2 Interpretation. The captions of the Sections or Paragraphs of this Agreement
the context of this Agreement,
part of the terms or provisions of this Agreement. Whenever required by
feminine and
the singular shall include the plural and the plural shall include the singular. The masculine,
neuter genders shall each include the other.
12.3 Construction Contract Terms. The terms Final Inspection, Interim Final Inspections,
Final Acceptance shall
Project Phase, Project Completion, Physical Completion, Substantial Completion,
Page 6
have the meaning set forth in the City's standard specications found at
httg://www.seatt|e.gov/util/EngineerinngtandarngecsPlans/index.htm
12.3 Waivers. All waivers shall be in writing and signed by the waiving Party. Either Party's
failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either Party
from enforcing that provision or any other provision of this Agreement in the future.
12.4 Force Majeure. If either Party cannot perform any of its obligations due to events
beyond its reasonable control (other than the payment of money), the time provided for performing such
obligations shall be extended by a period of time equal to the duration of such events. Events beyond a
Party's reasonable control include, but are not limited to, acts of God, war, civil commotion, labor
disputes, strikes, re, ood or other casualty, shortages of labor or materials, government regulations or
restrictions and weather conditions.
12.5 Joint Drafting Effort. This Contract shall be considered for all purposes as prepared by
the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the
preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
12.6 Third Party Beneciaries. Nothing in this Agreement is intended to, nor shail be
construed to give any rights or benets in the Agreement to anyone other than the Port and the City, and
all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benet of the Port and the City and not for the benet of any other party.
12.7 Authority. Each individual executing this Agreement on behalf of the Port or the City
represents and warrants that he or she is duly authorized to execute and deliver the Agreement on behalf
of the Port or the City.
12.8 Exhibits. This Agreement includes the following exhibits: Exhibit A: Lander Vicinity Map;
Exhibit B: Project Benefits; Exhibit C: Project Plan & Prole and Cross Sections; and Exhibit D: Summary
Estimate of Cost and Funding Shares which shall be deemed incorporated into this Agreement by this
reference.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement which shall be effective upon
the last date set forth below.
PORT OF SEATTLE CITY OF SEATTLE
Theodore J. Fick,
Date: I a"
Exhibit D
Port
of Seattle
MEMORANDUM OF UNDERSTANDING
FOR INTERGOVERNMENTAL COOPERATION BETWEEN THE PORT OF
SEATTLE AND THE CITY OF SEATTLE FOR FUTURE ROADWAY REPAIR AND
ROADWAY CONSTRUCTION PROJECTS LOCATED WITHIN SEATTLE'S HEAVY
HAUL NETWORK
This Memorandum of Understanding ("MOU") is entered into by the PORT OF SEATTLE, a
port district and Washington municipal corporation ("Port"), and the CITY OF SEATTLE, a
Washington municipal corporation ("City"), (collectively the "Parties").
WHEREAS, import containers that are shipped by rail from the Port can exceed weight
limits allowed on state highways and local streets; and
WHEREAS, the Port is served by two intermodal rail hubs-the Burlington Northern
Railway's Seattle International Gateway and Union Pacific's Argo Yard-that require containers
to be trucked (drayed) on local streets from the Port's marine terminals; and
WHEREAS, local transload businesses that reconsolidate container loads may also
receive heavy import containers that must be trucked from the marine or rail terminals; and
ATTACHMENT 1, Version 2
WHEREAS, to address this conict, other West Coast ports, including Los Angeles,
Long Beach and Tacoma, have created heavy haul networks to move cargo over short distances
at low speeds within their harbor areas on standard marine chassis; and
WHEREAS, the City's existing load limits put the Port at a competitive disadvantage
with other West Coast ports; and
WHEREAS, Chapter 46.44 of the Revised Code of Washington authorizes the City to
issue a special permit authorizing the applicant to operate or move a vehicle or combination of
vehicles of a load exceeding the maximum weight upon City rights of way; and
WHEREAS, a heavy haul network will create a better working environment for truck
owners and shippers by enabling them to compete more effectively for cargo by reducing costs
and expediting the movement of goods, without compromising safety; and
WHEREAS, shippers, truck owner-operators, trucking companies, railroads and the Port
have an interest in increasing cargo volumes through the city and are requesting the
establishment of a heavy haul network linking marine terminals to local railheads and nearby
transload facilities; and
WHEREAS, the City, Port, and the State of Washington have made signicant
investments to maintain and improve access to and from the marine port with rebuilt roadways,
new bridges, and new road connections; and
WHEREAS, the City supports the Port's efforts to enhance its competiveness in
international and national trade; and
WHEREAS, the City wants to implement transportation related measures that will grow
Seattle's diverse economy and support living wage jobs; and
WHEREAS, the City and Port agree that creating a heavy haul network, allowing
overweight trucks serving Port facilities to operate on the network under permit, will result in
some accelerated damage to existing roadways and additional cost for future roadway repair and
rebuilding projects within the Heavy Haul Network; and
WHEREAS, RCW 53.08.330 and 53.08.340 authorize the expenditure of Port funds in
conjunction with plans of the local jurisdiction in order to upgrade, improve or repair roads
serving Port facilities; and
WHEREAS, the City and Port agree that implementing a heavy haul network will
require an enforcement ofcer to monitor the network and ensure the safety for all roadway
users;
NOW THEREFORE, in consideration of mutual promises and covenants contained
herein, the Parties hereby agree to the terms and conditions as follows:
1.0 ADOPTION OF HEAVY HAUL NETWORK LEGISLATION
1.1 The City will make its best effort to adopt heavy haul legislation in 2015.
Page 2 of 10
ATTACHMENT 1, Version 2
1.2 To support the legislative process, the Port will satisfy all reasonable requests from the City
for supporting materials and information regarding Port operations.
1.3 This MOU will commence ("Commencement Date") on the effective date of City heavy
haul network legislation that includes all of the following elements:
i. The adopted heavy haul network legislation includes all routes contained in
Attachment A to this MOU, incorporated herein by this reference; and
ii. The adopted heavy haul network legislation allows for a maximum tandem
drive axle weight of forty three thousand (43,000) pounds and a maximum
gross vehicle weight of ninety eight thousand (98,000) pounds;
2.0 DETERMINING THE IMPACT OF OVERWEIGHT TRUCKS
2.1 The City and the Port engineers agree that allowing overweight trucks that serve Port
facilities on the roadways that connect Port marine terminals to local railheads and nearby
transload facilities, identied on Attachment A to this MOU ("Heavy Haul Network"), will
result in some accelerated damage to such roadways and additional costs for future
roadway repair or rebuilding projects within the Heavy Haul Network, described as
follows:
i. Accelerated damage of existing roadways is estimated to be equal to
approximately ten percent (10%) of the cost to repair said roadway; and
ii. Additional project costs for roadway repair and construction projects is
estimated to be equal to approximately ten percent (10%) of the cost of said
project.
2.2 The City and Port agree that the City and Port will jointly commission and pay equal shares
for the actual costs of a study to determine the actual impacts to the Heavy Haul Network
by trucks with Heavy Haul Network permits serving Port facilities and moving cargo
within the Heavy Haul Network, including additional costs for future roadway repair and
rebuilding projects within the Heavy Haul Network ("Study").
i. The City and Port must commission the Study within two (2) months of the
Commencement Date.
ii. The consultant hired by the City to conduct the Study will, among other
things, complete a count of overweight vehicles using the Heavy Haul
Network.
iii. The Study must be complete within six months of the Commencement Date
of this MOU.
iv. The Port will reimburse the City for its equal share ofthe Study costs within
thirty (30) days of receiving a copy of the Study and the City's request for
reimbursement.
Page 3 of 10
ATTACHMENT 1, Version 2
2.3. The City and Port agree that, in order to determine future impacts to the Heavy Haul
Network by by trucks with Heavy Haul Network permits serving Port facilities, the Study
will be updated every (5) ve years and be issued before June 30, 2021, 2026, and 2031
(collectively, the "Study Updates").
2.4 The City and Port agree that all dollar gures contained within this MOU will be adjusted
to current dollars for each of the Study Updates. The dollar gures will be updated using
the Consumer Price Index provided by the United States Bureau of Labor Statistics or its
successor.
3.0 PORT FINANCIAL COMMITMENT
3.1 Subject to Section 1.3, the Port agrees to pay the City up to Two Hundred and Fifty
Thousand Dollars ($250,000) in support of the Heavy Haul Network implementation and
operations through 2017, detailed as follows:
i. Upon adoption of the Heavy Haul Network legislation, not to exceed Ninety
Thousand Dollars ($90,000) to account for one-time start-up costs, including
an enforcement vehicle, portable truck scales, and direct administrative costs to
establish the new Heavy Haul Network permit type. The Port will reimburse the
City no later than thirty (30) days after the Port's receipt of a letter from the
City documenting actual, direct start-up costs payable under this subsection
3.1(i).
ii. In 2016, not to exceed Ninety Thousand Dollars ($90,000) towards the
difference between annual Heavy Haul Network permit revenues and annual
Heavy Haul Network direct operational costs.
iii. In 2017, not to exceed Seventy Thousand Dollars ($70,000) toWards the
difference between annual Heavy Haul Network permit revenues and annual
Heavy Haul Network direct operational costs.
iv. All requests for payment by the City under subsections 3.1(ii) and (iii) will
include a letter from the City identifying the applicable annual Heavy Haul
Network permit revenues and the annual Heavy Haul Network direct
operational costs. The Port will make payment to the City no later than thirty
(30) days after receiving the information required in this subsection 3.1(iv).
3.2 Subject to Section 1.3, the Port agrees to pay the City a minimum of Ten Million Dollars
($10,000,000) and maximum of Twenty Million Dollars ($20,000,000) over the next
twenty (20) years to account for accelerated damage to existing roadways within the Heavy
Haul Network by trucks with Heavy Haul Network permits serving Port facilities, and
additional costs for future roadway repair or rebuilding projects within the Heavy Haul
Network, subject to the following:
i. The City and the Port will, by agreement, develop a list and schedule for Heavy
Haul Network project(s).
Page 4 of 10
ATTACHMENT 1, Version 2
ii. Ifthe Study shows that accelerated damage to existing roadways by trucks with
Heavy Haul Network permits serving Port facilities, and additional costs for
future roadway repair or rebuilding projects within the Heavy Haul Network
totals between Ten Million Dollars ($10,000,000) and Twenty Million Dollars
($20,000,000), the Port will pay the City in accordance with the provisions of
Section 3.2.
iii. If the Study or any of the Study Updates shows that accelerated damage to
existing roadways by trucks with Heavy Haul Network permits serving Port
facilities, and additional costs for future roadway repair or rebuilding projects
within the Heavy Haul Network totals either less than Ten Million Dollars
($10,000,000) or more than Twenty Million Dollars ($20,000,000), the Port and
City agree to renegotiate the terms of this MOU.
iv. The Port's contributions under this Section 3.2 will not exceed Two Million
Dollars ($2,000,000) during any single calendar year during the term of this
MOU, unless the Port Commission and the City agree to a greater amount to
achieve the goals of this MOU.
When developing designs for roadway repair and rebuilding projects within the
Heavy Haul Network, the City will consult with the Port during conceptual
design and at regular intervals during design and construction. The City will
make every effort to devise project design components that maintain efcient
freight movements throughout the Heavy Haul Network. Where feasible, such
designs will consider separation of transportation modes to preserve and
enhance multi-modal safety and mobility.
vi. The Port will not be required to make any contributions under this Section 3.2
before the City has certied that a Heavy Haul Network project has reached
substantial completion by sending the Port a copy of the Seattle Department of
Transportation Engineer letter to the City's contractor establishing the
substantial completion date, as required by the City's standard specications
for construction projects. The City and the Port will agree on the minimum
advance notication to the Port of a particular project's substantial completion
and the Port reserves the right to request inspection of any such project prior to
issuance of substantial completion.
All requests for payment by the City under this Section will include a letter
from the City identifying the project, itemizing project categories and
expenditures that support reimbursement to the City for actual direct costs
incurred by the City on a Heavy Haul Network project. The Port will make
payment to the City no later than thirty (30) days after receiving the information
required in this Section.
vi. In the event the Port secures funding from other non-City sources for the Heavy
Haul Network roadway repair and construction projects, the amount of such
funding will be credited against the Port's obligations under this Section 3.2.
Page 5 of 10
ATTACHMENT 1, Version 2
4.0 DURATION
4.1 This MOU will commence on a date consistent with the requirements of Section 1.3 and
will remain in effect until December 31, 2035, unless earlier terminated in accordance with
Section 5.1.
5.0 AMENDMENT AND TERMINATION
5.1 The MOU may be terminated prior to December 31, 2035, only by a written instrument
executed by each of the parties hereto. If it is impracticable to perform under the MOU
due to a change in the law, the parties will rst seek to amend the MOU; if amendment is
not possible, the MOU may be terminable by either party.
6.0 SUCCESSORS AND ASSIGNS
6.1 This MOU will be binding and inure to the benet ofthe Parties hereto and their respective
successors and assigns.
6.2 Neither this MOU nor any term or provision hereof, or any inclusion by reference, will be
construed as being for the benet of any party not a signatory hereto (except for any
successors and assigns thereto). No other person or organization will have any right of
action based upon any provision of this MOU.
7.0 DISPUTE RESOLUTION
7.1 If disputes occur, the City and Port will designate representatives for the purpose of
resolving disputes that arise under this Agreement:
7.2 The Designated Representatives will use their best efforts to resolve disputes between the
parties. If the Designated Representatives are unable to resolve a dispute, the responsible
department directors will review the matter and attempt to resolve it. If they are unable to
resolve the dispute, the matter will be reviewed by the chief executive ofcer of each party
or his or her designee. The parties agree to exhaust each of these procedural steps before
seeking to resolve disputes in a court of law or any other forum.
7.3 In any action by a party hereto required to enforce this MOU, each party should bear its
own costs including attomey's fees and all reasonable costs and expenses incurred as a
result of a breach of this MOU, and of bringing or defending the suit.
8.0 NOTICES
8.1 Any notice required or permitted to be given pursuant to this MOU will be in writing and
will be deemed to have been duly given when delivered in person or upon receipt after
dispatch by certied or registered rst class mail, postage prepaid, return receipt requested,
to the party to whom the same is so given or made, to the addresses set forth in Section 8.0,
or to such other address as any party may designate by giving notice to the other party
hereto.
Page 6 of 10
ATTACHMENT 1, Version 2
9.0 INDEMNIFICATION AND HOLD HARMLESS
9.1 Each of the Parties will protect, defend, indemnify, and save harmless the other Party, its
ofcers, ofcials, employees, and agents, while acting within the scope of their
employment as such, from any and all costs, claims, judgment, and/or awards of damages,
arising out of, or in any way resulting from, each of the Party's own negligent acts or
omissions. The City will also protect, defend, indemnify and save harmless the Port, its
ofcers, ofcials, employees and agents ("Port indemnied parties"), from any and all
costs, claims, judgment and/or awards of damages, arising out of, or in any way resulting
from the design, permitting, or construction of the Heavy Haul Network projects. No Party
will be required to indemnify, defend, or save harmless the other Party, its ofcers,
ofcials, employees and agents if the claim, suit, or action for injuries, death, or damages
is caused by the sole negligence of the other Party. Where such claims, suits, or actions
result from the concurrent negligence of the Parties, the indemnity provisions provided
herein will be valid and enforceable only to the extent of a Party's own negligence. Each
of the Parties agrees that its obligations under this Section extend to any claim, demand
and/or cause of action brought by, or on behalf of, any of its employees or agents. For this
purpose, each of the Parties, by mutual negotiation, hereby waives, with respect to each of
the other Party only, any immunity that would otherwise be available against such claims
under the Industrial Insurance provision of Title 51 RCW.
9.2. In the event of legal action challenging the Port's legal authority to provide funding
assistance to the Heavy Haul Network projects, the Port, in its sole discretion, may defend
such legal action or may tender the defense to the City within ten (10) business days after
the service of such legal action. Failure to tender the legal action to the City as provided
herein will constitute a waiver of Port's right, if any, to seek indemnity for the claims
asserted therein.
9.3 The indemnication, hold harmless, and/or waiver obligations described in this Section
will survive the termination of this MOU. In any action to enforce the provisions of this
Section, the prevailing Party will be entitled to recover its reasonable attomey's fees and
costs incurred from the other Party.
10. RECORDS RETENTION AND AUDIT
10.1 The Port or its designee will have the right to inspect, audit and/or copy records supporting
or pertaining to the Port's funding contributions to the Heavy Haul Network throughout
the term (and any extensions) of this MOU and accounting thereof for the purpose of
determining anything that is of consequence to this MOU.
10.2 The City will retain the records pertaining to or supporting the Port's funding contributions
to the Heavy Haul Network for the periods required below. The City will also ensure that
relevant wage, payroll and cost records of all contractors, subcontractors and suppliers at
all tiers will be retained and open to similar inspection or audit for the periods required
below:
Page 7 of 10
ATTACHMENT 1, Version 2
i. During the progress of work related to the Heavy Haul Network projects
receiving Port funds;
ii. For a period of not less than six (6) years after the termination of this MOU;
provided that if the Port uses debt to provide funding contributions to the Heavy
Haul Network, the City will retain those records necessary to address an audit
for the period required under applicable regulations for the use of debt; and
iii. If any claim, audit, or litigation arising out of, in connection with, or related to
this MOU is initiated, all documents and records will be retained until such
claim, audit or litigation involving the records is resolved or completed,
whichever occurs later.
10.3 The City, its contractors, subcontractors and suppliers will make a good faith effort to
cooperate with the Port and its designees when the Port gives notice of its need to inspect
or audit records referenced in this Section 10. Cooperation will include assistance as may
be reasonably required in the course of inspection or audit, including reasonable access to
personnel with knowledge of the contents of the records being inspected or audited so that
the information in the records is properly understood by the persons performing the
inspection or audit. Cooperation will also include establishing a specic mutually
agreeable timetable for making the records available for inspection by the Port and its
designee. Unless otherwise agreed, ifthe City, its contractors, subcontractors and suppliers
cannot make at least some of the relevant records available for inspection within twenty-
eight (28) calendar days of the Port's written request, cooperation will necessarily entail
providing the Port with a reasonable explanation for the delay in production of records.
11.0 GENERAL PROVISIONS
11.1 The parties will work to expeditiously answer requests for information and to provide
approvals or consents provided for in this MOU. The parties agree to take further actions
and execute further documents, either jointly or within their respective powers and
authority, to implement the intent of this MOU. The Parties agree to work cooperatively
with each other to achieve the mutually agreeable goals as set forth in this MOU.
11.2 This MOU will be interpreted, construed and enforced in accordance with the laws of the
State of Washington. Venue for any action under this MOU will be King County,
Washington.
11.3 Each Party will be responsible for its own costs, including legal fees, incurred in
negotiating or nalizing this MOU unless otherwise agreed in writing by the parties.
11.4 This MOU may be amended only by a written instrument executed by each of the parties
hereto.
11.5 This MOU constitutes the entire agreement ofthe parties with respect to the subject matters
of this MOU, and supersedes any and all prior negotiations (oral and written),
understandings and agreements with respect hereto.
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ATTACHMENT 1, Version 2
ATTACHMENT A: STREETS TO BE INCLUDED WITHIN HEAVY HAUL NETWORK
South Atlantic Street
South Atlantic Street
South Hol-ate Street
South Hol-ate Street
Avenue SW
Avenue SW
Street
Wa
East Mar-inal Wa South
Spokane Duwamish Bridge South Spokane Street Duwamish Avenue South
RP Bride
Duwamish Avenue South Spokane Duwamlsh Brldge East Marginal Way South
Brid6 RP
South 0re-on Street
Page 10 of 10
ATTACHMENT 1, Version 2
11.6 Section headings are intended as information only, and will not be construed with the
substance of the section they caption.
11.7 In construction of this MOU, words used in the singular will include the plural and the
plural the singular, and "or" is used in the inclusive sense, in all cases where such meanings
would be appropriate.
11.8 This MOU may be executed in several counterparts, each of which will be deemed an
original, and all counterparts together will constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the Parties has executed this MOU by having its authorized
representative afx his/her name in the appropriate space below:
CITY OF SEATTLE PORT OF SEATTLE
Edward B. Mu Ted J. Fick, C ief Executive Ofcer
City of Seattle Port of Seattle
Page 9 of 10
THE SAFE AND SWIFT
CORRIDOR PROGRAM
Exhibit E: Map of Locations Referenced in the MOU August 2017
Exhibit G: EMW-HHN Project details
Diagram of signalized
diagonal crossing of
South Hanford Street
EAST MARGINAL WAY
CORRIDOR IMPROVEMENT PROJECT
B
O
R
E FACT SHEET March 2017 N
A
V
E
PROJECT BACKGROUND
EAST MARGINAL WAY
As Seattle grows, improvements to freight mobility are CORRIDOR IMPROVEMENT PROJECT
essential to promote regional and international economic
I 90
CENTURY
competitiveness. East Marginal Way is a major freight corridor EXPRESS
LINK
FIELD
for trucks transporting goods, over-sized trucks, and those
S ROYAL BROUGH AM WAY
carrying ammable cargo. The corridor also provides a major SAFECO
FIELD R S
D
connection for people who bike between the West Seattle EDGAR MARTINEZ AIRPORT
WAY S
S ATLANTIC ST
Bridge Trail, downtown, and the SODO neighborhood.
Through the East Marginal Way Corridor Improvement
99 S H OLGATE ST
Project, we will improve safety, efciency, and reliability in Project area
the movement of people and goods. We will rebuild the street 1S 4 T
T A H
E M A
to support freight loads, promote efciency in reduction of V V
AR E
S E S
bottlenecks through signal modications and intelligent G A N I
S LANDER ST L W
transportation systems (ITS), and improve safety for all modes HARBOR
ISLAND SAY
by better separating non-motorized modes from freight trafc.
S H ANFORD ST
PROJECT BENEFITS S HORTON ST
Improved freight mobility: Support the economic vitality of
SPOKANE S T VIA D UCT
our region including the Port of Seattle and local industrialWEST SEATTLE BRIDGE
WEST SEATTLE BR I D G E
businesses.
99
Safety: Better access and connections in combination with
separating non-motorized modes to reduce potential conicts. 1S T 4
S NEVADA ST T A H VE V A
Better pedestrian and bike connections: New and upgraded S S E
S IDAHO ST
facilities for people walking and biking also improve access
for employees using transit or non-motorized modes to get to DUWAMISH RIVER S
E
V
A
L D
A
N E
O N
G
work in the area. V
A
I E
D E M R
A
V
E
AR
S
GI N
A S HUDSON ST
L
W
WHAT YOU NEED TO KNOW A
Y S DAWSON ST
S
99 S LUCILE ST
We are rebuilding the roadway to Heavy Haul standards,
W M
allowing heavier cargo to be transported along the corridor
AR with appropriate permits
GI N AL W
We will make improvements to signal timing and waynding 1S AY T A T
S
N
A
G
I
SW We have options for better separating people biking and H
C
I
VE M
S
N S walking from freight trafc BR I E DG We want to hear from you!
PROJECT INFORMATION AND CONTACT
Dawn Schellenberg, Communications Lead
EastMarginal@seattle.gov|(206) 684-5189
www.seattle.gov/transportation/eastmarginal.htm
PROJECT FUNDING OUTREACH SCHEDULE
Funding to evaluate alternatives and complete early This project began in 2015 with the examination of
design is provided by the 9-year Levy to Move Seattle, existing conditions and community input. A variety of
approved by voters in 2015. Learn more about the levy at: methods engaged stakeholders, such as briengs, a public
www.seattle.gov/LevytoMoveSeattle workshop, and an online survey.
Full funding is dependent on contributions from other In 2017, we are using public input, data collection, and
public partners such as the Port of Seattle and the State, technical analysis to evaluate different options for the
as well as competitive Federal grant programs such future of the corridor.
as FASTLANE. Learn more about FASTLANE grants at:
www.transportation.gov/buildamerica/FASTLANEgrants
PROJECT SCHEDULE
Pending success in funding:
20156 2017 2018 2019 2020
WINTERSPRING SUMMER FALL
Data collection Develop Create 30% design Apply for Complete Begin
Early design options preliminary complete federal grants design construction
workshops Seek input engineering Secure other
on options designs
Preliminary funding
trafc analysis partnerships
Online Open House and Survey
ONGOING OUTREACH AND ENGAGEMENT
If you need this information translated, call (206) 684-5189
Si necesita traducir esta informacin al espaol, llame al (206) 684-5189
(206) 684-5189
PROJECT INFORMATION AND CONTACT
Dawn Schellenberg, Communications Lead
EastMarginal@seattle.gov22|22(206) 684-5189
www.seattle.gov/transportation/eastmarginal.htm
Exhibit F: Current Lander Summary Estimates of Cost and Finding Shares
SUMMARY ESTIMATE OF CONSTRUCTION COST: $123M
SUMMARY ESTIMATE OF CONSTRUCTION FUNDING SHARES:
Source Contribution
Federal USDOT (FASTLANE) $45,000,000
Federal PSRC STP funds $9,500,000
Federal National Highway Freight Program (NHFP) $3,000,000
State - Freight Mobility Strategic Investment Board (FMSIB) $8,000,000
State Connecting Washington $7,000,000
Local Levy to Move Seattle $20,000,000
Local Other City sources $13,000,000
Local - Port of Seattle $15,000,000
Local BNSF (pursuant to 23 CRF 666.210) $2,500,000
Total: $123,000,000
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