6b
Item 6b
PORT OF SEATTLE
MEMORANDUM
COMMISSION AGENDA Item No. 6b
Date of Meeting December 13,2011
DATE: December 5, 2011
TO: Tay Yoshitani, Chief Executive Officer
Joe McWilliams, Managing Director, Real Estate an~Pr erty Management
Tom Tanaka, Sr. Port Counsel, Legal Department
Boeing/Port Settlement Agreement including Easement d Access Agreements
to Portions of Former Commercial Waterway District No. 1 Property
Net Proceeds to the Port: $1.5 million
ACTION REQUESTED:
Request Commission authorization for the Chief Executive Officer to execute a Settlement
Agreement that grants the Boeing Company (Boeing) access to Wtdertake environmental
cleanup, bankline corrective measures, habitat restoration, and instaiVimprove stormwater
infrastructure on former Commercial Waterway District No. 1 property. In exchange, Boeing
will provide $1.5 million in compensation as well as allow the Port temporary access to a portion
of the Boeing Developmental Center for construction of the Terminal 117 Natural Resource
Damage Habitat Restoration project.
BACKGROUND:
The Commercial Waterway District No. 1 of King County (CWD) was formed in the early 1900s
to straighten the course of the Lower Duwamish River from Harbor Island to Turning Basin #3.
The CWD owned a 500 foot swath of land through which the waterway flowed. The CWD
decided to dissolve in the early 1960s and it asked the Port if it would take the District's assets.
The Port agreed and the CWD transferred its interests, including the waterway basin land, to the
Port in 1963.
Boeing owns property abutting the east bankline of the former CWD property on either side of
the South Park Bridge. This property, as well as portions of the former CWD property which it
abuts, are both the subject of an Administrative Order on Consent (AOC) from the U.S.
Environmental Protection Agency (EPA) and Washington State Department of Ecology
(Ecology) that requires Boeing to clean up pollution in the soil/sediments as well as improve
conditions along the bankline.
Item 6b
COMMISSION AGENDA
Tay Yoshitani, Chief Executive Officer
December 5, 2011
Page 2 of6
Subsequent to the AOC, Boeing entered in to a consent decree with the Elliott Bay Trustee
Council (Trustees) that resolves Boeing's natural resource damage liability associated with the
pollution that they are cleaning up. The consent decree specifies that Boeing will implement a
habitat restoration project to restore and/or create off-channel and riparian habitats in the Lower
Duwamish Waterway. Boeing would like to build this project partially on former CWO
property that has been previously identified in the Lower Duwamish River Habitat Restoration
Plan as Sites #18, 21 and 22. The project is designed to include removal of over-water structures,
reduction of slopes, cutback of banks, softening of banks, creation of new intertidal habitat,
creation ofbrackish marsh fringe and addition of large woody debris habitat features.
Boeing is also seeking to redevelop and improve its stormwater management system. Various
existing stormwater facilities and systems are located throughout the Boeing property, including
a storm drain line that discharges stormwater through an outfall pipe currently located in the
former CWD property. As part of the redevelopment, Boeing intends to upgrade the stormwater
system by, among other things, installing new storm drain lines and outfall pipes to three new
outfalls in the fomer CWO property, as well as modifying the existing outfall.
By carrying out its restoration project on the former CWD property, Boeing will be precluding
the Port, or any other party, from receiving natural resource damage (NRD) settlement credit for
habitat improvements on that property. As compensation to the Port for that lost opportunity, the
Settlement Agreement specifies that Boeing will pay the Port the sum of $1.5 million.
Additional compensation to the Port includes site access rights through the Boeing Development
Center to support the Terminal 117 NRD Restoration project ifand when it is constructed.
ACCESS AND EASEMENT AGREEMENTS:
The Settlement Agreement includes four separate access and easement agreements that would be
executed concurrently. They are:
Site Access Agreement (Exhibit 3). The AOC will require that Boeing, its contractors
and its agents be granted access to the former CWD property to perform the necessary
cleanup and bankline corrective work. The Site Access Agreement specifies terms and
conditions related to schedule, cooperation, work standards and indemnification.
Habitat Restoration Easement Agreement (Exhibit 4). The Boeing Consent Decree
requires Boeing to obtain site access and a perpetual conservation easement for the
habitat restoration project. The Habitat Restoration Easement Agreement conveys to
Boeing the transferable rights of the Port's with respect to the former CWO property
needed for the Boeing habitat project.
Stormwater Outfall Easement Agreement (Exhibit 5). The Settlement Agreement
includes a Stormwater Outfall Easement Agreement that will grant Boeing temporary and
perpetual easements to construct, modify, maintain, monitor, replace and restore Boeing's
Item 6b
COMMISSION AGENDA
Tay Yoshitani, Chief Executive Officer
December 5, 2011
Page 3 of6
storm drain lines and outfalls in the former CWD property. The easement agreement
includes an indenmity provided by Boeing to protect the Port from any liability
associated with discharges from the stormwater outfalls.
Port Access through Boeing Development Center Agreement (Exhibit 6). This
agreement allows the Port temporary upland access to the former CWD property through
the Boeing Development Center in order to facilitate construction of the Terminal 117
NRD Restoration project. The easement will lower costs, improve safety and improve
the Port's ability to manage environmental impacts during construction if the Port
chooses to move forward with the project
These documents may be subject to some further modification by the parties, but the content
would be substantively similar to the forms presented here.
STRATEGIC OBJECTIVES:
This project supports the Port's strategies to "Ensure Airport and Seaport Vitality" and "Exhibit
Environmental Stewardship through our Actions".
The Settlement Agreement contributes to Seaport vitality by:
o Generating revenue from previously non-revenue generating property.
o Validating an emerging market for natural resource functions and ecosystem
services that may be important to the Port in the future.
o Improving relationships with South Park and Georgetown communities,
environmental groups, regulatory agencies and the Trustees.
o Reducing construction costs for Terminal 117 NRD Restoration project if/when it
is constructed.
The Settlement Agreement furthers Seaport goals, guiding principles and objectives related
to environmental stewardship by:
o Allowing Boeing to undertake important fish and wildlife habitat restoration
activities on former CWD property. Habitat restoration in the Duwamish corridor .
is viewed as a key component of salmon recovery efforts, among other things.
The easement helps to facilitate Boeing's restoration project, which is one of
several projects proposed or being contemplated for this portion ofthe Duwamish.
Cumulatively, the Boeing project will contribute to a regionally significant
complex of restored fish and wildlife habitat.
o Supporting water quality improvement and river-wide pollution "source control"
efforts by facilitating better stormwater management on Boeing'sproperty.
o Allowing Boeing to conduct environmental cleanup that will improve conditions
for people, fish and wildlife.
o Allowing Port access through the Boeing Development Center, which will lower
costs, improve safety and reduce construction-related environmental impacts (if
the Port chooses to construct the project).
Item 6b
COMMISSION AGENDA
Tay Yoshitani, Chief Executive Officer
December 5, 2011
Page 4 of6
o Establishing a benchmark for valuation of natural resource functions and
ecosystem services.
BUSINESS PLAN OBJECTIVES:
Capitalizing on natural resource functions and ecosystem services that are provided, or
could be provided, in the former CWD property demonstrates value and creates
opportunity for low performing or non-revenue generating properties.
Collaboration with NRD potentially responsible parties (in this case Boeing) will help to
foster a positive working relationship with the Trustees, community and others, which
enhances our ability to achieve a cost-effective NRD settlement.
Port access through the Boeing Development Center will significantly lower costs if the
Port chooses to construct the T-117 NRD Restoration project.
FINANCIAL ANALYSIS:
The Port is unable to control uses on the former CWD property due to Washington State
Supreme Court precedent. As such, the former CWD property has not been a source of revenue
to the Port in the past. Howev~r, the former CWD property has value for habitat restoration
purposes and for parties like Boeing that wish to settle their natural resource damages liability
through the creation of habitat projects. The agreements with Boeing will allow the Port to
obtain value for the transfer ofhabitat development rights to a third party and will set a precedent
for future transactions that could be favorable to the Port financially.
Negotiations with Boeing regarding the settlement amount were underpinned by the imperative
that the Port should be compensated for the value of foregone habitat credit opportunities in the
easement area. To support the negotiation and establish the range of value, the Port completed
an analysis that estimated:
the potential number of credits that could be produced if the Port undertook its own
habitat project in the easement area~
the costs to produce the credits; and,
potential market value of the credits.
The analysis confirmed that the settlement realizes returns from the Port's asset that could not
otherwise be achieved.
Bud~:etJAuthorization Summary
Previous Authorizations NA
Current request for authorization NA
Total Authorizations, including this request NA
Remaining budget to be authorized NA
Item 6b
COMMISSION AGENDA
Tay Yoshitani, Chief Executive Officer
December 5, 2011
Page 5 of 6
Source ofFunds
No funds are required by this transaction. This transaction will generate approximately $1.5
million in cash proceeds.
Financial Analysis Summary
CIP Category NA
Pro.iect Type NA
Risk adjusted Discount rate NA
Key risk factors
Boeing has indicated that they need to authorize the
Settlement Agreement and complete the financial
transaction before the end of 2011 to avoid delays
associated with their budgeting process.
Each of the Easement Agreements include "hold
harmless" and indemnity conditions as appropriate.
Project cost for analysis NA
Business Unit (BU) Seaport Division
Effect on business Granting of the easement will result in $1.5 million of
performance non-operating revenue to the Seaport in 2011.
IRRINPV NA
SUSTAINABILITY AND LIFE CYCLE COSTS:
Future costs associated with maintenance of Boeing's habitat project and stormwater
infrastructure within the granted easements will be the sole responsibility of Boeing. The
Settlement Agreement will not increase life cycle costs associated with Port interests in the
former CWD property.
From a sustainability perspective, the Settlement Agreement will promote environmental
cleanup, habitat restoration, water quality improvement, and community benefits.
ALTERNATIVES CONSIDERED AND THEIR IMPLICATIONS:
Alternative 1 - No Action -- do not enter into a Settlement Agreement with Boeing.{tanlJ This
alternative would put our relationship with Boeing, the Trustees, the EPA, Ecology, the
community and environmental groups at risk, and it would forego $1.5 million in proceeds.
However, it would preserve the Port's ability to construct fish and wildlife habitat within the
Item 6b
COMMISSION AGENDA
Tay Yoshitani, ChiefExecutive Officer
December 5, 2011
Page 6 of6
former CWD property at this location in the future, to use either for Port liability resolution
or to capitalize on NRD and mitigation markets.
Alternative 2- Partial Action. Enter into a Settlement Agreement with Boeing that includes
site access for cleanup and bankline corrective actions only. This alternative would preserve
our relationship with EPA and Ecology and generate environmental improvements in the
former CWD property (not including habitat restoration). However, it would be damaging to
our relationship with the Trustees, Boeing, the community and environmental groups,
inasmuch as the Port would be perceived to be standing in the way of habitat restoration.
This alternative would also forego potential environmental benefits and indemnity associated
with Boeing'sstormwater infrastructure in the former CWD property. ltan2J
Alternative 3 - .Execute the Settlement Agreement and related agreements in exchange for
$1.5 million and access rights through the Boeing Developmental Center for construction of
the Tl17 NRD Restoration project (if Port chooses to move forward with that project). This
alternative fosters important relationships with Duwamish stakeholders, generates revenue
from marginal property, and results in significant environmental improvements. This is the
recommended alternative.
OTHER DOCUMENTS ASSOCIATED WITH THIS REQUEST:
The access and easement agreements that are attachments to the Settlement Agreement include
map exhibits which illustrate the boundaries of the site access and habitat easement areas. The
Settlement Agreement is attached to this memo.
PREVIOUS COMMISSION ACTIONS OR BRIEFINGS:
On July 7, 2009 the Port Commission adopted the Lower Duwamish River Habitat Restoration
Plan (WRHRP), which includes identification of 31 potential habitat restoration sites. The
Settlement Agreement includes portions of LDRHRP Sites 18,21 and 22.
Item 6b
BOEING/PORT AGREEMENT
This Agreement ("Agreement" or "Port/Boeing Agreement")) is made between
Port of Seattle ("Port") and The Boeing Company ("Boeing") (hereinafter the "Parties").
The effective date of the Agreement is [INSERT DATE] (the "Effective Date").
WHEREAS, the Port is the successor in interest to Commercial Waterway
District No. 1of King County, which acquired interests in certain real property located in
King County, Washington, lying along and including a portion of the shoreline and
submerged lands on the Lower Duwamish Waterway and generally shown on
EXHIBIT 1 (the "Port Property").
WHEREAS, Boeing owns certain real property adjacent to the Port Property and
generally shown on EXHIBIT 2 (the "Boeing Property").
WHEREAS, Boeing intends to complete the Duwamish Sediment Other Area
("DSOA") and Southwest Bank Corrective Measure pursuant to the Administrative Order
on Consent [RCRA Docket No 1092-01-22-3008(h)], issued to Boeing in 1994 by the
United States Environmental Protection Agency under RCRA Section 3008(h), as
amended by 42 U.S.C. 6928(h). A portion of the DSOA and Southwest Bank Corrective
Measure is to occur on the Port Property.
WHEREAS, Boeing has executed a consent decree ("Consent Decree") with the
United States of America (on behalf ofthe National Oceanic and Atmospheric
Administration, the United States Department of the Interior, and the United States Fish
and Wildlife Service), the State of Washington through the Washington Department of
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Ecology, the Muckleshoot Indian Tribe and the Suquamish Tribe (the "Trustees").
Pursuant to the terms ofthe Conseut Decree, Boeing will, among other things, implement
a habitat restoration project (the "Boeing Habitat Project") to restore and/or create offchannel
and riparian habitats in the Lower Duwamish Waterway in an area where they
have been largely eliminated, and facilitate the Port'sgrant ofa conservation easement to
the Trustees related to the portion of the Boeing Habitat Project occurring on the Port
Property.
WHEREAS, as part of the redevelopment of Plant 2, Boeing is upgrading its
stormwater system, including modifying existing storm drain lines/outfalls and installing
new storm drain lines/outfalls. One of the storm drain lines/outfalls Boeing intends to
modify is on Port Property. Three of the storm drain lines/outfalls Boeing intends to
install are on Port Property.
WHEREAS, the Port is considering whether to conduct a habitat restoration
project ("Port Habitat Project") in the LDW adjacent to Boeing'sSouth Park property.
Access on the South Park property would facilitate completion of the Port Habitat
Project.
NOWt THEREFORE, IT IS AGREED:
l. Site Access Agreement: The Parties will execute concurrently with this
Agreement a site access agreement, attached hereto as EXHffiiT 3, under which the Port
provides access to the Port Property for Boeing and its contractors and agents to perform
the DSOA and Southwest Bank Corrective Measure.
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2. Habitat Restoration Easement Agreement: The Parties will execute
concurrently with this Agreement a Habitat Restoration Easement Agreement, attached
hereto as EXHIBIT 4, under which the Port grants to Boeing a perpetual easement to
construct, maintain, monitor, replace and restore the portion of the Boeing Habitat Project
located on the Port Property.
3. Declaration of Conservation Easement: The Port will execute
concurrently with this Agreement a Declaration ofConservation Easement, a draft of
which is attached hereto as EXHIBIT 5, under which the Port grants to the United States
Department of Commerce acting through the National Oceanic and Atmospheric
Administration, a conservation easement to ensure the permanent preservation ofthe
Boeing Habitat Project located on the Port Property. 4. Stormwater Outfall
Easement Agreement: The Parties will execute concurrently with this Agreement -a
Stormwater Outfall Easement Agreement, attached hereto as EXHIBIT 6, under which
the Port grants to Boeing temporary and perpetual easements to construct, modify,
maintain, monitor, replace and restore Boeing'sstorm drain lines and outfalls on Port
Property.
5. Port Access through the Boeing South Park Property: If the Port
detennines that it will proceed with the Port Habitat Project, Boeing will allow access to
the adjacent Boeing South Park Property under the general terms and conditions set forth
in the draft access agreement attached hereto as EXHIBIT 7. Prior to executing the
applicable access agreement, the specific terms and conditions, such as locations, times,
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and manner of access, will be negotiated in good faith by the Parties once more details
are known about the Port'sPort Habitat Project and access needs.
6. Release and Covenant Not to Sue:
a. Mutual Release and Covenant Not to Sue: The Parties agree to
release and covenant not to sue each other from and against any claims, suits, actions,
causes of action, or demands, whether known or l.Ulknown, related to (i) all past and
future remedial action costs, response costs, and payments to third parties (including
without limitation all reasonable consultant fees and attorney fees), incurred or to be
incurred in the areas addressed by or related to the DSOA and Southwest Bank
Corrective Measure actions; and (ii) all past and future natural resource damage
liabilities, assessment and restoration costs, and payments to the Trustees, incurred or to
be incurred in the area of or related to the Boeing Habitat Project. The Parties' hold
harmless and indemnity obligations as set forth in the attachments shall be unaffected by
this paragraph. To the extent the Parties' hold harmless and indemnity obligations set
forth in the attachments are inconsistent with this paragraph, the obligations in the
attachments shall govern.
b. Reservation of rights: Except for those claims, suits, actions,
causes of action, or demands expressly released above in subsection 6(a), the Parties
reserve all other claims, suits, actions, causes of action, or demands they may have
against each other.
7. Payment to the Port: Within thirty (30) days of the Effective Date,
Boeing shall pay to the Port the sum of One Million Five Hundred Thousand and Zero
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Cents ($1,500,000.00). Boeing shall make this payment to the Port by way of bank check
payable to the "Port ofSeattle."
8. Notice:
a. Any notices or other communications under this Agreement shall be
directed to the following party representatives:
To the Port:
Kathy Bahnick
Port of Seattle
P.O. Box 1209.
Seattle, W A 98111
Phone: (206) 787-3128
Email: Bahnick.K@portseattle.org
Thomas H. Tanaka
Port of Seattle
P.O. Box 1209 3600
Seattle, W A 98111
Phone: (206) 787-3007
Email: Tanaka.T@portseattle.org
To Boeing:
Leah Krider
EHS, Boeing Law Department
2710 160m Avenue SE
Bellevue, W A 98008
Phone: (425) 373-7123
Email: Leah.M.Krider@boeing.com
Mark Schneider
Perkins Coie LLP
1201 Third Avenue, Suite 4800
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Item 6b
Seattle, WA 98101-3099
Phone: (206) 359-8000
Email: MWSchneider@perkinscoie.com
b. Any party may change the person or address to which communication
may be directed by giving written notice to the representatives provided above.
9. Successor and Assigns: This Agreement shall be binding upon
successors and assigns of the Parties. No assignment or delegation of the obligations to
make any payment or reimbursement hereunder shall release the assigning Party without
the prior written consent of the other party. Prior to entry into any contract with a third
party concerning the property where the DSOA and Southwest Bank Corrective Measure
and the Boeing Habitat Project will be constructed, the Port shall first provide a copy of
this Agreement to the third party.
10. No Third-Part:y Beneficiaries: This Agreement is intended by the Parties
for their sole and exclusive benefit. The Parties expressly do not intend to benefit any
other party, and expressly do not intend to create any third-party beneficiaries to this
Agreement.
11. Unenforceable Provisions: Ifany provision of this Agreement is held to
be unenforceable for any reason, it shall be adjusted, rather than voided, ifpossible, to
achieve the intent of the Parties. If any portion of this Agreement becomes unenforceable,
null, or void, the balance of this Agreement shall remain in full force and effect.
12. Governin& Law: All rights and obligations of the Parties to this
Agreement will be construed and enforced in accordance with, and governed by, the laws
of the State of Washington. With respect to any disagreement, dispute, controversy, or
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claim arising out ofor relating to this Agreement or any interpretation of this Agreement,
and solely for the purposes of this Agreement, each of the Parties irrevocably submits to
the jurisdiction of the United States District Court for the Western District of Washington
(unless federal jurisdictional requirements cannot be met, in which case each of the
Parties irrevocably submits to the jurisdiction of the King County Superior Court).
13. Entire Agreement: This Agreement and all attachments constitute the
entire agreement between the Parties. This Agreement and its attachments may not be
modified or amended, except by writing signed by the Parties.
14. Execution in Counterparts: This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all ofwhich shall constitute
one and the same instrument.
15. Authority to Sign: Each person signing this Agreement represents and
warrants that he or she is duly authorized to enter into this Agreement by the entity on
whose behalf the person is signing.
Accepted:
Port ofSeattle The Boeing Company
By:___________ By:___________
Title:___________ Title:___________
Date:____________ Date:____________
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Port/Boeing Agreement 8
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Item 6b
MAIN AGREEMENT EXHIBITS
Item 6b
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Item 6b
Item 6b
"DUWAMISH SEDIMENT AND OTHER AREA"
AND
SOUTHWEST BANK INTERIM MEASURE
SITE ACCESS AGREEMENT
This Site Access Agreement ("SAA") is made between Port ofSeattle ("Port")
and The Boeing Company ("Boeing") (hereinafter the "Parties").
RECITALS
A. The Port is the successor in interest to Commercial Waterway District No.
1 of certain real King County, which acquired interests in certain real property located in
King County, Washington, lying along and including a portion of the shoreline and
submerged lands on the Lower Duwamish Waterway and generally shown on
EXHIBIT A (the "Poit Property").
B. Boeing owns certain real property adjacent to the Port Property and
generally shown on EXHffiiT B (the "Boeing Property").
C. Boeing intends to complete the Duwamish Sediment Other Area
("DSOA") and Southwest Bank Corrective Measure pursuant to the Administrative Order
on Consent [RCRA Docket No 1092-0l-22-3008(h)] ("Order"), issued to Boeing in 1994
by the United States Environmental Protection Agency ("EPA") under RCRA Section
3008(h), as amended by 42 U.S.C. 6928(h). The approximate location of the DSOA and
Southwest Bank Corrective Measure is shown on EXHIBIT C. The proposed elements
for the DSOA and Southwest Bank Corrective Measure are more fully described in
EXHIBIT D, and are hereinafter referred to as the "Work." A portion of the Work is to
occur on the Port Property.
D. The Parties have agreed to enter into this SAA to provide access to the
Port Property for Boeing and its contractors and agents to perform the Work.
Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 1
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E. Concurrent with the Parties' entry into this SAA, Boeing and the Port are
entering into a Habitat Restoration Easement Agreement, under which the Port is
granting to Boeing an exclusive, perpetual easement to construct, maintain, monitor,
replace and restore the portion of a habitat restoration project located on the Port
Property.
F. Concurrent with the Parties' entry into this SAA, Boeing and the Port are
entering into a Stormwater Outfall Easement Agreement, under which the Port is granting
to Boeing a non-exclusive, perpetual easement to construct, operate, maintain, repair,
modify, monitor, and replace storm water drain lines and outfalls on a portion ofthe Port
Property.
In consideration ofthe mutual covenants and agreement herein, the Parties agree
as follows:
AGREEMENT
The Port hereby grants to Boeing and its contractors and agents a non-exclusive
license for access to the Port Property to conduct the Work. Boeing agrees that it will
provide a copy ofthis SAA to any contractor or agent retained to assist in the Work, and
that all contractors and agents must agree in writing to be bound by its terms.
The time and manner of such access shall be pursuant to the terms of this SAA:
1. Time/Schedule.
a. This SAA shall remain in full force and effect until the Work is
completed. Boeing shall coordinate with the Port to ensure that the Work is done in a
timely manner.
b. Boeing and its contractors and agents shall have twenty-four
(24)hour access, seven (7) days per week, 365/366 days per year to the Port Property
starting on the Effective Date of this SAA.
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 2
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c. Boeing, through its contractors or agents, shall conduct the Work
in accordance with the Order.
2. The Port'sCooperation with the Work; No Conflicting 3nJ Party
Agreements. The Port, including its representatives, contractors, or agents, shall
cooperate in the performance of the Work by Boeing, including its representatives,
contractors, or agents. At all times while this Agreement remains in place, the Port shall
refrain from entering into any agreements with third parties concerning the Port Property
that would be detrimental to Boeing'sefforts to conduct and complete the Work in a
timely and diligent manner.
3. Work Standards. Boeing, through its contractors and agents, shall perform
all Work consistent with the requirements mandated by the EPA, including those set forth
in the Order.
4. Hold Harmless and Indemnification.
4.1 Boeing'sHold Harmless and Indemnification Agreement: Boeing
shall indemnify and hold the Port harmless from and against (i) any and all
claims, losses, costs, expenses, liabilities or damages (collectively, "Claims")
arising out of Boeing's negligentor willful failure to perform its obligations under
this Agreement, (ii) any and all Claims related to the release ofhazardous
substances at, on, under or from the Port Property caused by Boeing'suse ofthe
Port Property after the Effective Date of this Agreement until the Work is
complete, and (iii) any and all claims or liability for bodily injury to or death of
any person or loss of or damage to any property, including reasonable attorneys'
fees and costs, arising out of Boeing'sor its contractors',consultants', or agents'
negligence or willful misconduct associated with Boeing'suse of the Port
Property after the Effective Date of this Agreement until the Work is complete,
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 3
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except to the extent such Claims are caused by the negligence or willful
misconduct ofthe Port or the Port'sagents, employees, contractors or invitees.
4.2 The Port's Hold Hannless and Indemnification Agreement: The
Port will indemnify, defend, and hold Boeing harmless from and against (i) any
and all Claims arising out of the Port'snegligent or willful failure to perform its
obligations under this Agreement, and (ii) any and all Claims for bodily injury to
or death of any person or loss of or damage to any property, including reasonable
attorneys' fees and costs, arising out of the Port'sor its contractors',consultants',
or agents' negligence or willful misconduct associated with the Port'suse of the
Port Property after the Effective Date of this Agreement until the Work is
complete, except to the extent such Claims are caused by the negligence or willful
misconduct on the part of Boeing, its agents, employees, contractors or invitees.
4.3 No Effect on Allocation of Responsibility for Prior Releases. This
Agreement shall not be interpreted to have any effect on the Parties ' liability with
respect to actions or activities that occurred prior to the Effective Date of this
Agreement, including without limitation, liability for past releases of hazardous
substances to the Duwamish Waterway.
5. Party Representatives. Communication under this Agreement shall be
directed to the following party representatives:
To the Port:
Kathy Bahnick
Port ofSeattle
P.O. Box 1209
Seattle, W A 98111
Phone: (206) 787-3128
Email: Bahnick.K@portseattle.org
Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 4
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Tom Tanaka
Port of Seattle
P.O. Box 1209
Seattle, W A 98111
Phone: (206) 787-3007
Email: tanaka.t@portseattle.org
To Boeing: Mike Gleason
The Boeing Company
P.O. Box 3707
M/C lW-12
Seattle, WA 98124-2207
Phone: (206) 290-6576
Email: michael.j.gJeason@boeing.com
Leah Krider
EHS, Boeing Law Department
2710 160lh Avenue SE
Bellevue, W A 98008
Phone: (425) 373-7123
Email: Leah.M.Krider@boeing.com
Any party may change the person or address to which communication may be
directed by giving written notice to the representatives provided above.
6. Authority to Execute. Each person executing this SAA on behalfof
another person or entity represents and warrants that he or she is fully authorized to
execute and deliver this SAA on behalf of such person or entity. The Parties each
represent and warrant to each other that no consent of any person or entity not a party to
this SAA is necessary in order for this SAA to be fully and completely binding upon the
Parties.
Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 5
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7. Entire Agreement. Except for the Boeing/Port Agreement, this SAA
contains the entire understanding between the Parties related to the Work and supersedes
any prior or contemporaneous understandings and agreements between the Parties with
respect to the Work. There are no other representations, agreements, arrangements or
understandings, verbal or written, between and among the parties hereto, or any ofthem,
relating to the Work. No amendment or supplement to this SAA shall be valid or
effective unless made in writing and executed by the Parties hereto.
8. No Waiver of Remedy for Breach. A failure by any party to this SAA to
enforce a term or condition of this SAA does not constitute a waiver of that party's
remedies for any breach of this SAA. Waiver by a party to this SAA of one or more
terms or conditions of this SAA does not constitute a waiver of any other terms or
conditions of this SAA.
9. Applicable Law. This SAA shall be governed by the laws ofthe State of
Washington, exclusive of its choice of law rules. Venue for all disputes shall be King
County, Washington.
10. Successors and Assigns. This SAA shall inure to the benefit of and be
binding upon the Parties' respective successors and assigns.
11. Effective Date. The Effective Date of this SAA is the first date upon
which the SAA has been executed by all Parties.
12. Miscellaneous. This SAA may be executed in any number of
counterparts, each of which when executed and delivered shall constitute an original
document, but all of which together shall constitute one and the same document. Neither
Party shall record this SAA, nor any memorandum of this SAA. This SAA is solely for
the benefit ofthe Parties and their successors and assigns, and no third party beneficiaries
are intended to result herefrom.
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 6
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Accepted:
Port of Seattle The Boeing Company
By:___________ By:___________
Title:___________ Title:___________
Date:____________ Date:____________
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 7
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03008.0337/LEGAL222S9663.1
Item 6bItem 6b
Item 6b
SITE ACCESS AGREEMENT
EXHIBITS
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EXHIBIT C TO SITE
ACCESS AGREEMENT
DSOA AND SOUTHWEST
BANK CORRECTIVE MEASURE
Item 6b
EXHIBIT D
To Site Access Agreement
Boeing's proposed project consist ofthe following primary components: design data collection
sampling, sediment/soil remediation, temporary construction structure installation, and maintenance
and monitoring. Each project component is described below.
1.0 DESIGN DATA COLLECTION
During design of the corrective measure, Boeing may have a requirement to collect additional
environmental and/or geotechnical data within the project area. All design data collection activities
will be conducted pursuant to Boeing's Administrative Order on Consent (Order) with EPA.
2.0 SEDIMENT/SOIL REMEDIATION
The Duwamish Sediment Other Area (DSOA) and Southwest Bank Corrective Measure includes the
following project elements:
Dredging with subsequent backfilling ofthe DSOA open-wat~r areas,
Dredging with backfilling of the 2-40s Under-building area,
Removal of sediment and subsequent backfilling ofthe Outfall 12 area,
Removal of contaminated bank fill material from the Southwest Bank area with subsequent
reconstruction of the bank, and
Removal of sediment from 4 areas with subsequent backfilling within the Boeing-owned
portion of Slip 4.
2.1 DREDGING OF THE DSOA OPEN-WATER AREAS
The area of the DSOA (excluding the Under-building Area) is 13.96 acres. The northern boundary of
the DSOA extends to the opening of Slip 4, while the southern boundary extends approximately 150
feet south ofthe Boeing Plant 2/Jorgensen Forge property line. The eastern boundary ofthe DSOA
open-water area is the toe of the slope along the shoreline or building faces and the western
boundary extends at least to the Federal Navigation Channel along the length of the Facility. The final
configuration ofthe DSOA Corrective Measure relative to the Navigation Channel will be detennined
as part of the final design ofthe dredge cuts.
The corrective measure for the DSOA is a variable-depth dredge and backfill design. Over about 50%
ofthe DSOA, elevated concentrations of polychlorinated biphenyls (PCBs) are confined to the top 4
feet below the existing mudline; however, in about 10% of the DSOA elevated concentrations of PCBs
extend beyond 12 feet below mudline. The minimum proposed dredge cut over the entire DSOA
1
Item 6b
would be 2 feet with deeper dredge cuts in areas where there are concentrations of PCBs above the
Sediment Management Standards (SMS) Sediment Quality Standards SQS; WAC 173-204-320) at
depth. After dredging, the DSOA will be backfilled with clean material (no detectable PCBs and other
SMS analytes will be below the SQS) to restore elevations, except that fill within the navigation
channel and 10 feet inshore of the channel above -17 feet mean lower low water (MLLW), is not
required.
The total dredge volume of the DSOA open-water area is estimated to be approximately 200,000 cy.
Dredged material from this corrective measure will be transported to a permiHed Subtitle D facility for
disposal except for a small volume of sediment (approximately 400 cy) that may require Subtitle C
disposal.
Water management equipment will be staged upland to handle the dredge return water (water from
the barges and water that comes in contact with the stockpiled sediment at the Site). That equipment
may in_clude holding tanks, pumps, flocculent dispensing equipment, and Geotubes, and will be used
as appropriate, to remove sediment from the dredge return water prior discharge to the Lower
Duwamish WateiWay (LDW).
2.2 THE 2-408 UNDERBUILDING AREA
The 2-40s Under-building area is an approximate 1,000-foot-long section of Buildings 2-41, 2-44, and
2-49 that overhang the Duwamish WateiWay shoreline bank. The overhanging portion is
approximately 50 feet wide and is supported by wooden piles. It is physically separated from the
uplands by a continuous bulkhead wall. Running underneath the overhang are a number of pipes,
foundations, and other utility infrastructure that once supported the former manufacturing operations
within the buildings. The surface beneath the overhang is covered with riprap extending to a
scalloped sediment interface that is only exposed during low tide.
Boeing is currently removing the over-water portion of the buildings. This project includes the removal
of the concrete slab, piling, riprap, foundations, and bulkheaded areas with subsequent excavation of
sediments in the under-building area. The sediments in the Under-building area contain elevated
concentrations of PCBs and other constituents which are, with a couple of exceptions, limited to 6 feet
below the existing sediment surface.
The proposed excavation area of approximately 10,000 cy. The excavation will then be backfilled with
clean sand (no detectable PCBs and other SMS analytes will be below the SOS).
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2.3 OUTFALL 12 AREA
Outfall 12 is in the intertidal zone located on the bank at the south end of the Building 2-49 adjacent to
the Southwest Bank. An interim measure was conducted in this area to remove sediment and soils
with elevated concentrations of PCBs (Weston 1998). Approximately 20 cy of sediment were
removed at Outfall12. Sediments with concentrations of PCBs above the SQS still remain in place
below the backfilled interim measure excavation.
The Outfa1112 action will be designed to remove sediments with elevated concentrations of PCBs.
Within the footprint of the prior interim measure, sediment will be removed to a depth of approximately
6 feet below mudline. After excavation, the Outfa1112 area will be backfilled with clean sand material
(i.e., no detectable PCBs and other SMS analytes will be below the SQS) to restore elevations. This
excavation is expected to be less than 100 cy.
2.4 SOUTHWEST BANK
The Southwest Bank refers to the southern-most portion of Plant 2 fronting the LOW, specifically that
section of riverbank located between the Plant 2 southern border and the 2-49 Building located
approximately 400 feet to the north. The current bank is steep (on the order of 1.5 to 1 H:1V) and
consists of riprap and miscellaneous debris fill. Elevated metals concentrations (primarily cadmium,
copper, lead, and zinc) found in Southwest Bank soils appear to be related to large amounts of debris
found within the upper deposits of the Southwest Bank fill. PCBs were also occasionally detected in
the Southwest Bank. The proposed excavation is approximately 7,000 cy.
2.5 SLIP 4
Based on review of existing sediment data in Slip 4, there are four areas within the Boeing-owned
portion of Slip 4 that will be excavated and backfilled. Within these areas, sediments will be
excavated to a nominal depth of 2, 3, or 4 feet and subsequently backfilled with clean sand. The
estimated volume of the sediment to be removed is approximately 650 cy. The cleanup in Slip 4 will
be conducted at the same time as the DSOA corrective measure.
3.0 TEMPORARY CONSTRUCTION STRUCTURES
To support the Boeing Plant 2 sediment remediation project, a number of temporary mooring points
for floating equipment (barges, tug boats, dredge equipment, etc.) will be required. These mooring
points will provide locations where equipment can be temporarily moored during the project. These
mooring points may be installed, removed and reinstalled within the project area during the course of
the project.
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Mooring points may consist of single steel piling or 3 piling clusters (dolphins). The pile used will
typically be steel, 12 to 24 inches in diameter. They will be installed and removed using vibratory
equipment to the extent practicable.
It is anticipated that up to 10 individual mooring points (single piles or three pile dolphins) may be
installed at any one time, and that each of these could be removed and reinstalled several times
during the course of the project.
4.0 MONITORING
As part ofthe Order with EPA, monitoring may be required to periodically collect sediment samples to
determine if recontamination of the remedy is occurring.
4
Item 6b
RESTORATION EASEMENT
EXHIBITS
Item 6b
Return Address
DocumentTitle(s) (or transactions contained therein):
I. HABITAT RESTORATION EASEMENT AGREEMENT
2.
3.
Reference Number(s) ofDocuments assigned or released:
(on page_ ofdocuments(s))
Grantor(s) (Last name first, then first name and initials):
I. Port ofSeattle, a Washington municipal coqJOration
2.
3.
Grantee(s) (Last name first, then first name and initials):
I. The Boeing Company, a Delaware corporation
2.
3.
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
Portion ofSE 114 ofSec. 29, T. 24N, R. 4E, W.M. AND portion of NW 1/4 ofSec. 33, T. 24N, R.
4E,W.M.
Fu1llegal is on page _ ofdocument.
Assessor'sProperty Tax Parcel/Account Number
INSERT
HABITAT RESTORATION EASEMENT AGREEMENT - Exhibit 4 to Port/Boeing Agreement
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HABITAT RESTORATION EASEMENT AGREEMENT
THIS HABITAT RESTORATION EASEMENT AGREEMENT rAgreement") is
made this __, day of , 2011 (the ..Effective Date"), by and between the
PORT OF SEATTLE, a Washington municipal corporation (the ..Port") and THE BOEING
COMPANY, a Delaware corporation ("Boeing") (hereinafter the ..Parties").
RECITALS
A. The Port is the successor in interest to Commercial Waterway District No. 1
ofKing County, which acquired interests in certain real property located in King County,
Washington, lying along and including a portion ofthe shoreline and submerged lands on the
Lower Duwamish Waterway and more particularly described on EXHffiiT A (the ..Port
Property").
B. Boeing owns certain real property adjacent to the Port Property and more
particularly described on EXHIBIT B (the ..Boeing Property").
C. Boeing has entered into a consent decree (as the same may be modified from
time to time, the ..Consent Decree") with the United States of America (on behalfofthe
National Oceanic and Atmospheric Administrat~on, the United States Department of the
hlterior, and the United States Fish and Wildlife Service), the State of Washington through
the Washington Department ofEcology, the Muckleshoot Indian Tribe and the Suquamish
Tribe (collectively the Trustees"). Pursuant to the terms of the Consent Decree, Boeing
will implement a habitat restoration project (the ..Habitat Project") to restore and/or create
off-channel and riparian habitats in the Lower Duwamish Waterway in an area where they
have been largely eliminated. The Habitat Project will include, but not be limited to, removal
ofcertain over-water structures, reduction of slopes, cutback ofbanks, softening ofbanks,
creation of new intertidal habitat, creation ofbrackish marsh fringe and addition of large
woody debris. A portion ofthe Habitat Project is to occur on the Port Property.
D. The Consent Decree requires Boeing to take all necessary actions to obtain an
eaSeDJ.ent on behalf of the Trustees so that the Habitat Project will be protected in perpetuity
and the Trustees will be permitted access to the Port Property on which the Habitat Project
will be constructed at the times and under the circumstances described in the Consent
Decree.
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F. The Parties now desire to enter into an agreement to grant to Boeing a
perpetual easement to construct, maintain, monitor, replace and restore the portion ofthe
Habitat Project located on the Port Property, together with certain other rights, all subject,
however, to the terms and conditions set forth in this Agreement. The Parties intend for the
Port to grant Boeing the same degree of control over the Port Property as the Port is legally
entitled to exercise over the Port Property to the extent necessary for Boeing to satisfy its
obligations under the Consent Decree.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency ofwhich are acknowledged, the Parties agree as follows:
AGREEMENT
1. Easement for Habitat Project
1.1 Grant of Easement
The Port does hereby grant, convey and quitclaim to Boeing, for the benefit of Boeing
and of the Boeing Property, an exclusive, perpetual easement (the "Easement") on, across,
under, in and through the Port Property to excavate, remove, construct, reconstruct, install,
use, operate, repair, replace, monitor, restore, maintain, relocate and alter (collectively,
"Construct and Maintain") portions ofthe Habitat Project, togethe~ with all appurtenant
fixtures and equipment that are necessary or convenient and that are directly related to the
Habitat Project, including without limitation, the right to excavate and remove soil and the
right to use the subsurface area in connection with the Habitat Project, and together with such
rights of access as may be necessary or desirable for the full use and enjoyment of the rights
granted in this Agreement. The exclusive purposes ofthis grant ofeasement are to provide
for the establishment, maintenance and operation of portions ofthe Habitat Project ou the
Port Property, and to establish the Habitat Project as the exclusive use of the Port Property,
subject only to the rights ofthe public to use ofthe Lower Duwamish Waterway as required
by law or as otherwise provided in Section 1.11 below. The Parties expressly agree that there
is no intent to convey any rights other than those that are granted in this Agreement. The
Parties do not iutend for this Agreement to convey fee title in any form or any other interest
other than an easement subject to the conditions described in this Agreement.
1.2 Trustee Access and Use Under the Consent Decree
The Trustees and each of them, aud their respective contractors, shall have the right to
enter outo the Port Property for purposes of inspecting and monitoring the Habitat Project,
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 3
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and, provided each Trustee that enters onto the Port Property agrees to each of the terms and
conditions of this Agreement, including without limitation, the obligation to indemnify and
hold the Port harmless as set forth in Section 6.1 below, to conduct such further work on the
Habitat Project as it deems necessary or desirable so long as that work complies in all
respects with the terms of the Consent Decree.
1.3 Establishment of Restrictive Covenant
The Port further declares that the Port Property shall be held, conveyed,
hypothecated, encumbered, leased, used, occupied and improved subject to this Agreement
and to all of its terms, which are declared and agreed to be equitable servitudes in furtherance
ofa plan for the improvement and use of the Port Property, and are established and agreed
upon for the purposes set forth in this Section 1. The Parties agree, however, that under no
circumstances will the Port's underlying interest in the Port Property be subordinated or
otherwise made subject to any security interest. All such covenants, conditions and
restrictions shall run with the Port Property and each part of it, and shall be binding upon,
and shall be for the benefit of, the Parties to this Agreement and their respective successors
and assigns. The Port hereby reliQquishes forever, for itself and for its successors and
assigns, the right to develop or use the Port Property in any manner that would be
inconsistent with the Habitat Plan or Boeing'sobligations under the Consent Decree.
1.4 Exclusive Rights
Commencing on the Effective Date, Boeing will have the sole and exclusive right to
enter onto the Port Property and to take such actions as are necessary to Construct and
Maintain the Habitat Project, subject only to the rights of the Trustees set forth in Section 1.2
above. Without limiting the generality of the foregoing, subject to the rights of the public to
navigation as established by law and those rights set forth below in Section 1.11, Boeing
shall have all ofthe Port'sright to exclude all persons from the Port Property during
construction, reconstruction, maintenance, and other activities related to the Habitat Project,
and to take such other actions for the safety and protection of Boeing and its employees,
contractors and agents as Boeing may elect in its sole discretion.
1.5 Water Rights; Plant Material
To the extent pennitted by law, Boeing shall have the sole and exclusive right to use
and appropriate all water rights appurtenant to the Port Property for the Habitat Project. The
Port grants, conveys and transfers to Boeing all ofthe Port'sright, title and interest in and to
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 4
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those water rights; provided, however, that they shall be used and applied solely for the
purposes ofconstructing, maintaining and operating the Habitat Project.
The Port further grants, conveys and transfers to Boeing all of the Port'sright, title
and interest in and to all trees and other plants and plant materials that are located on the Port
Property on the Effective Date, and grants to Boeing the right to remove and dispose of any
or all of them, to make any or all of them a part ofthe Habitat Project, and to allow any or all
of them to remain as a part of the Port Property, all in Boeing'ssole discretion.
1.6 Plans and Specifications for Habitat Project
The Port approves the preliminary conceptual design for the Habitat Project as
described in the project description and scope of work attached as EXHffiiT C. The Habitat
Project shall be constructed, installed and maintained in accordance with final plans and
specifications approved by Boeing pursuant to the Consent Decree. Boeing shall cooperate
with the Port to the extent reasonably practicable to take into account the Port'scomments to
the proposed final plans and specifications. The Port acknowledges and agrees, however,
that final plans and specifications for the Habitat Project shall be those that are approved by
Boeing pursuant to the Consent Decree.
1.7 Utilities
Boeing will pay for all utilities used in connection with the Habitat Project during the
term ofthis Agreement, including all utility service during construction of the Habitat Project
and all utilities used in the operation and maintenance ofthe Habitat Project.
1.8 Termination by Boeing
Boeing shall have the right to terminate the easement granted in this Section 1 if the
easement is no longer needed by Boeing in order to fulfill its obligations under the Consent
Decree. The easement, and all of Boeing'srights under the easement, may be terminated
pursuant to this Section 1.8 by written notice given by Boeing to the Port, stating the date on
which the easement will terminate. The Parties' obligations under Section 6 shall survive
termination of the easement.
1.9 Port Cooperation
The Port shall cooperate with Boeing in Boeing'sexercise of the easement rights
granted in this Agreement and shall refrain from entering into any agreements with third
HABITAT RESTORATION EASENIENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 5
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parties concerning the Port Property, or otherwise taking actions, that would be detrimental
to the free and unfettered exercise by Boeing of those rights.
1.10 Stormwater Control
The Port and Boeing acknowledge the presence of certain stormwater control
facilities on the Port Property. The Port and Boeing further anticipate that they will enter
into one or more easement agreements for installing and maintaining existing and/or new
stormwater control facilities, provided that there shall be no interference with the Habitat
Project as a result ofthe installation and maintenance of such facilities.
1.11 Access Righ~ sunder 1991 Easement
The Port and Boeing acknowledge the existence ofthe Access Easement granted by the Port
to Boeing in June 1991 for the purpose of facilitating public access through the Port Property
to the Duwamish River shoreline as part of the City of Seattle'spermitting requirements for
Boeing'sconstruction of the North Duwamish Campus ("1991 Easement"). The access rights
granted under the 1991 Easement are not superseded by this Agreement and will remain in
effect until the City of Seattle approves alternate shoreline public access for the North
Duwamish Campus.
2. Notices
Notices required to be given under this Agreement shall be in writing, via United
States mail, electronic mail, or hand delivery, and shall be given as follows:
Ifto the Port: Port ofSeattle
P.O. Box 1209
Seattle, W A 98111
Attn: Kathy Bahnick
Email: Bahnick.K@portseattle.org
Ifto Boeing: Boeing
The Boeing Company
P.O. Box 3707
MJC lW-12
Seattle, WA 98124-2207
Attn: Mike Gleason
Email: michael.j.gleason@boeing.com
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Notices shall be deemed effective, if mailed, on the fifth day following deposit
thereof in the United States mail, postage prepaid, certified or registered mail, return receipt
requested, or upon delivery thereof ifgiven in any other manner. Either party may change
the address and recipient to which notices may be given by giving notice in the manner
provided in this Section 2.
3. Compliance with Laws and Rules
The rights granted to Boeing in this Agreement shall be exercised in accordance with
the requirements ofall applicable statutes, orders, rules and regulations of any public
authority having jurisdiction.
4. Work Standards
All work performed by Boeing on the Port Property shall be completed in a careful,
competent and workmanlike manner, free of all claims of liens. Following any construction,
Boeing shall replace any property comer monuments, survey references or hubs which were
disturbed or destroyed by activities conducted by Boeing or at Boeing'sdirection.
S. Port'sUse ofEasement Area
. The Port retains the right to fully use and enjoy the Port Property to the extent not
inconsistent with the rights granted to Boeing in this Agreement. The Port shall not construct
or maintain any buildings or other permanent structures on or over the Port Property without
Boeing'sprior written consent.
6. Hold Harmless and Indemnity Agreement
6.1 Boeing'sHold Harmless and Indemnity Agreement
Boeing shall indemnify and hold the Port hannless from and against (i) any and all
claims, losses, costs, expenses, liabilities or damages (collectively, ..Claims") arising out of
Boeing'snegligent or willful failure to perform its obligations under this Agreement, (ii) any
and all Claims related to the release of hazardous substances at, on, under or from the Port
Property caused by Boeing'suse of the Port Property after the Effective Date ofthis
Agreement, and (iii) any and all Claims for bodily injury to or death of any person or loss of
or damage to any property arising out of Boeing'sor its contractors' consultants',or agents'
negligence or willful misconduct associated with Boeing'suse of the Port Property after the
Effective Date ofthis Agreement, except to the extent such Claims are caused by the
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 7
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Item 6b
negligence or willful misconduct of the Port, aR:y Trustee exercbing its right to coR:dl:tet work
oR the Port ProJ3e1ty, or any other person or entity seeking indemnification under this
Section 6, or their agents, employees, contractors or invitees.
6.2 The Port'sHold Harmless and Indemnity Agreement
The Port shall indemnify and hold Boeing and its affiliates and officers, directors,
members, employees, agents, contractors, successors and assigns hannless from and against
(i) any and all Claims arising out of the Port'snegligent or willful failure to perform its
obligations under this Agreement, and (ii) any and all Claims for bodily injury to or death of
any person or loss of or damage to any property arising out of the Port'sor its contractors'
consultants',or agents' negligence or willful misconduct associated with Port'suse of the
Port Property, except to the extent such Claims are caused by the negligence or willful
misconduct on the part of Boeing, any Trustee exercising its right to conduct work on the
Port Property, or any other person or entity seeking indemnification under this Section 6, its
agents, employees, contractors or invitees.
6.3 No Effect on Allocation of Responsibility for Prior Releases
This Agreement shall not be interpreted to have any effect on the Parties' liability with
respect to actions or activities that occurred prior to the Effective Date of this
Agreement, including without limitation, liability for past releases of hazardous
substances to the Duwamish Waterway.
7. Attorneys'Fees
In the event either party brings a legal action against the other party to enforce its
rights under this Agreement, the substantially prevailing party shall be entitled to receive
reimbursements from the other party for such prevailing party'scosts incurred in such legal
action (including the costs of appeal), including the reasonable fees and disbursement of the
prevailing party'sattorneys, in addition to all other rights and remedies available to the
prevailing party at law or in equity.
8. Complete Agreement
Except for the Boeing/Port Agreement and the 1991 Easement described in Section
1.11 above, this Agreement contains the entire agreement ofthe Parties with respect to the
Habitat Project and supersedes all prior or contemporaneous writings or discussions relating
to any easement to the Port Property and agreements provided for therein. This Agreement
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 8
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may not be amended except by a written document executed after the date hereofby ~e duly
authorized representatives of Boeing and the Port.
9. Choice of Law; Invalidity
This Agreement shall be governed by the laws of the State of Washington, exclusive
of its choice of law rules. In the event any term, covenant, condition, provision or easement
contained in this Agreement is held to be invalid, voided or otherwise unenforceable by any
court of competentjurisdiction, such holding shall in no way affect the validity or
enforceability of any other term, covenant, condition, provision or easement contained
herein.
10. Successors and Assigns
The rights herein granted and the duties hereby agreed to shall inure to the benefit of
and be binding upon the Parties' respective successors and assigns. Notwithstanding the
foregoing, Boeing expressly reserves the sole and exclusive right to modify or terminate the
this Agreement and the easement granted in it on behalf of the grantee and holder ofthe
easement rights without the agreement or joinder ofany other party, other than the Port,
including without limitation any successor to Boeing as owner of the Boeing Property or any
part of it.
11. Exhibits
The following exhibits attached to this Agreement are incorporated into it by this
reference and made a part of it as though fully set forth:
Exhibit A Port Property
Exhibit B Boeing Property
Exhibit C Project Description and Scope of Work
IN WITNESS WHEREOF, the Parties have executed this Agreement through their
appropriate officials and representatives.
The Port:
PORT OFSEATILE, a Washington
municipal corporation
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By
Name: __________________________
Title: ------------------------
Boeing:
THE BOEING COMPANY.
a Delaware corporation
By
Name: __________________________
Title: -------------------------
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Item 6b
STATE OF WASHINGTON )
) ss.
COUNTYOF )
On this __day of , 20_, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared , to me known to be the person who
signed as . of PORT OF SEATTLE, the Washington
municipal corporation that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said municipal corporation for
the uses and purposes therein mentioned, and on oath stated that was duly elected,
qualified and acting as said officer ofthe municipal corporation, that __ was authorized
to execute said instrument and that the seal affixed, if any, is the corporate seal of said
municipal corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
NOTARY PUBLIC in and for the State
of Washington, residing at--------
My appointment expires: --------
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 11
12/6/11
03008-0337/LEGAL22259552. I
Item 6b
STATE OF WASHINGTON )
) ss.
COUNTYOF )
On this __day of , 20_, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared , to me known to be the person who
signed as ofTHE BOEING COMPANY, the
Delaware corporation that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned, and on oath stated that was duly elected, qualified and
acting as said officer ofthe corporation, that__was authorized to execute said instrument
and that the seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
NOTARY PUBLIC in and for the State
of Washington, residing at--------
My appointment expires:--------
HABITAT RESTORATION EASEMENT AGREEMENT- Exhibit 4 to Port/Boeing Agreement 12
1216/1 I
03008-0337/L.EGAL22259552.1
Item 6b
Y,$W:HT AREA- POBJ QF SUULE MEa "fHL l!f!SPIIQ!D
THAT PORT10fl OF THE IIOVtlii!MT CIUo\RTER OF SECTIOM 28, TOWNS. :lA NOirTH,
RMIGE o.t EAST, W.M., CITY OF aATTLE, Ill ICIIoiO COUNTY, WAIJ.-GTOfl, LYING WITliN
THE DUW-H C~<:IAL WATERWAY, DEIICIUIIED loS FOLLOWS:
~IIGAT THE NORnfWfiST BOUN)AJIY CO- DF THE~ IIOElNG PLMT
2 IOUHONtYSURVEY, AS III!COitDID Ill VOLU. 1S1 OF SURVEYS, PAGE18t. RECOfti)SDF
KMG COUNTY, W-GTON. SMI CORNER BEING THE llnERSECnOH OF THE -TH1.1NE
OF THE BDEIHG PLANT 2 Bow">ARY, WITH THE -THEASTEIU.Y RIOHf OF WAY 1.111E OF EASEI!IE!!! AI!EA- PORI OF SEATl1JN!EAt1 !l.iGAL Qi&CRII"TION!
THE DUWAMISH COIDIERCIAL WATBIWAY,~CE ALONG SAil) AIGHT DF WAY,_, WEST
BOUNDARY, 80\JTH 47~1-31 EAST. A DISTANCE OF 101.AS FEET TO 1lE T111.1E PC:Wff OF THAT PCRTlON OF ntE IC)~BT QUARTtR OF SECTION SS, TCMNSifiP 24 MDRTII,
BEGINNING: TltENCE SOIITl1 :10-117~ WEST, A DISTANCE OF 31.M FEET: THENCE RANGE o.t LUT, W CIT\'OF 1UICWILA. IN KING COUNTY, WAIHINliTDN, LYlNO WITHIN
CONTliMNG AlONG SAID EASEMEHT THE FOlLOWING COURSES AND DISTANCES; 1'11EDUW~H~ERCAIL WAn.wAY DDCRIIIIDM Fot.l.OWII:
SOUTHONI2~ EAST, 4&.57 F&T: SOtfTH 17-45-a EAST, "-51 FEET; SOUTH $4.4H4 EAST, COM-OAT THE IOU~ST BOUNDARYC~R OF THE AMENDED BQI;IHG PlANT
4113 FEET; SOUTH 15-11EAST, 42.22 Fl:ET; SOUTH :"-14-63 EAST, 40.87Fl:ET: SOUTtl$3- 210UNDARY SUit\IEY, AI RECORIIIII IllVOLUME 131 DFSURVEYS, PAGE 119, RltCORDS DF
58~ EAST, t2.t2 Fl:ET; SOIITll 40-5741 EAST, 53.07 FEET; SOunt oiS-50-37 EAST, 137.M lONG COUNTY, WASHINGTON. SAl) CORMP.IelNO THE INTERaECTION OF TltE IOUTif UNE
FEET; SOVTH 48.4J~ EAST, 10.13 FET; SOUTH 62-36~7 EAST, 5e.Q FEET; SOUTH S2-14-10 OF SAID 11091G PI.NfT 2110UNDARY, WITH THE NOfl'TifEAITERLY RIGHT OFWAY UHE OF
EAST, 83.~ FEET; NORTH Uoo1WS EAST, 4&.94 FEET; NORTH :lS~-13 WEST, 20.00 FEET: 1'11E DUWAIIIIIf C:OMMERQAL WATfRWAY, SAID INTERSEcnON 111MO A POINT ON A
NORTH 17-3~WEST, :ZO.U FEET; NOfl'Tif1104Ne EAST. 2U$ FEET: TltEHCE NORTH4T.S1- CUIWE TO 1'11E LEFT F- WMENCE 1'11E CENTtR Bl'AIIa SOUTH 53'50'0$"WEST, A
3fwt:ST, A DISTANCE OF 137.78FEETTOTHE TRUE PaNTOF 81!GINN1HG. DISTANCE OF 1,!1e9.12 FEET; THEMCIE ALONG SAID CURVE, AND WIESTEIU.Y BOUNDARY,
ni'IOUGHA c:EN"mAL AMGLE OF 01"10'01", AN All<: LENGnt OF 40.14 FEET TO TlG! TRUE
POINT Of BEGlNNINO;
THEHCE CON111MNG ALONG SAID CURW TO 1HE I.DT, THROUGH A CENTRAL ANGLE OF
10"31'31",AM ARC LENGTH OF :1111.71 F1!ET TO TliE POINT OF TANGENCY; TIENCE NORTH
47"51'31" WfST, ALONG SAID 'WA~WAY, A DISTANCE OF 114.1$ FEET; T~NCE SOUTlt
0$""5'WEAST. A DISTANCE ~ t.ss R!ET; THENCE CONnNUING ALONG SAID EASEMENT,
THE FOLI.CMlNO ODUIIllllel AlGI OISTANCES; IOU'IM 41"311'~ EAST, 11.D FEET; SOUTH
03'5e'SZ"EAST, 2a.05FEET: SOUTH17":111'34"1!MT,.:1.73 FEET, SOUTlt 27"21'52"EAST, :ti.tS
FEET; soutH W5r51" lAST, 2t.IO fEET; SOUTII 52"11'05" EAST, 7Z.34 FEET; SOUTH
441"1S'11" EAST, 14M FEET; SOUTH 43"31'35" lAST, 101 ... FEET; SOUTH 57"12'20"EAST.
13.28 FEET: 1'11EHCENewtnl ruEAST, A IKSTNo!CE OF 44.11 FEET TO THE l'AUI:POINT
OFlUlGI-.
nz"f!f[AREA PORTOFSEAULEAREAU-!LEGAJ. DfSCI!PDD!Q
Pori Pr~erty
THAT PORTION OF THE SOUT11EAST QUARTER OF SECTlON 2t, TOWNSHIP 24 NORTH, RANG~: o.t EAST, W.M., OTY
OF SEATTl, IN KINO COUNTY, WASHIICOTON, l YIIIG WITHII TilE DUWAMISH COIIMEACIAL WATD(WAY,
COMMENCING AT THE NORTHWEST BOUNDAAY COIINER OF THE AMENDED BOEING Pl..NIT 2 BOUIIDARY
EXHIBIT A TO HABITAT
8URVEY, loS RECORDED- IN YOI.UIIt 131 OF SURVEYS, PAGE 1n. !IECORDS OF KING COUNTY, WASMINGTC:..
SAID CORNER BEING Tltl: INTERSE.CllOII OF THE NOR1'11 LINE OF THE BOEING PLAHT 2 BOUIIDAAY, WITH TH.E
RESTORATION
NORlMEASTERLY RIGHT OF WAY UM: OF THE DUWAimH COIIIIERCIAL WATERWAY, ntENCE ALOIIIG SAID
AIGHT OF WAY AND WEST 80U-Y, $lOUTH 47"51'"" EAST, A DISTANCE OF GUO FEET; lltENCI: SOUTH
42"01'24"WIEST, A DISTANCE OF 13.19 FEET TO Tt.: TRUE POINT OF 8EGINNIItG; THENCE SOUTH 41'53'15"EAST, EASEMENT
A DISTANCE OF 29.t&FEET: THENCE SOUTH ol1"05'3ll" WfST, ADISTAHCE OF 30.00 FEET; 1'11ENCENORTH
AGREEMENT
CONT.-....G 900 SQUAAE FEET, OR .t. O.Ga1 IICRE3. MORE OR LESS.
PORT PROPERTY
Item 6b
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EXHIBIT B TO HABITAT
RESTORATION
EASEMENT
AGREEMENT
BOEING PROPERTY
Item 6b
Exhibit C
Presented in this exhibit is the Scope of Work (SOW) for the Boeing habitat restoration projects
which is an appendix to a Consent Decree between Boeing and the Natural Resource Trustees.
The habitat projects are:
The Building 2-41 and Southwest Bank Project involves the removal of the overwater
portion of the Building 2-41 complex at the south end of Plant 2 with
subsequent restoration of shoreline along the Southwest Bank and Building 2-41
complex; and
The Building 2-122 Project involves the creation of a blind channel at the north end
of Plant 2 adjacent to Boeing's Building 2-122 along with shoreline restoration and
creation.
The two proposed restoration projects will restore and/or create off-channel and riparian
habitats in the Lower Duwamish Waterway in an area where they have been largely eliminated
due to the channelization and industrialization of the Waterway.
Between the two projects:
approximately 4.8 acres of intertidal and riparian area will be restored/created;
approximately 2,400 linear feet of shoreline will be restored (at elevation +1 0 feet
mean lower low water; MLLW); and
approximately 700 linear feet of new shoreline will be created (at elevation +1 0 feet
MLLW.
It is anticipated that pile-supported herbivore control systems will be installed at each of the two
restoration project sites. Up to 30 12- to 16-inch steel piles will be placed in the intertidal area of
the projects to support the herbivore control systems.
Based on a requirement of the Consent Decree with the Natural Resource Trustees, Boeing will
provide net attachment points for the Muckleshoot Tribal fishers. The location of the net
attachment piles have not been determined; however, the piles will be located in the intertidal
zone adjacent to Plant 2 between the shoreline and the federal navigation channel. Some of
the steel piles for the herbivore control systems may be left in place after the herbivore control
system is removed to serve as the net attachment points. If the herbivore control system piles
do not meet the requirements of Tribal fishers, additional piles may be installed elsewhere in the
intertidal area adjacent to Plant 2.
Item 6b
The SOW also includes monitoring and long-term maintenance requirements for the habitat
projects. The monitoring and maintenance requirements will be specified plans that will be
developed during design.
Item 6b
Return Address
National Oceanic and Atmospheric Administration
7600 Sand Point Way NE
Seattle, W A 98115
Attention:
Docwnent Title(s) (or transactions contained therein):
1. Declaration ofConservation Easement
Reference Number(s) ofDocuments assigned or released:
(on page N/A ofdocuments(s)}
Grantor(s) (Last name first, then first name and initials):
I. Port ofSeattle, a municipal corporation
Grantee{s) (last name first, then first name and initials):
I. United States Department ofCommerce acting through the National Oceanic and Atmospheric
Administration
Legal description (abbreviated: i.e. Lot, block, plat or section, township, range)
PortionofSE 1/4 ofSec. 29, T. 24N, R. 4E, W.M. AND portion ofNW 114 ofSec. 33, T. 24N, R. 4E,
W.M.
D Full legal is on page _ ofdocument.
Assessor'sProperty Tax ParceVAccount Number
INSERT
Port Conservation Easement Agreement - Exhibit 5 to Boeing/Port Agreement
12/5/11
030080337/LEGAL2225920.1
Item 6b
Declaration ofConservation Easement
This Declaration of Conservation Easement ("Declaration") is made this _ day of
______, 20_bythePortofSeattle('Grantor")for the benefitofthe United States
Department ofCommerce, acting through the National Oceanic and Atmospheric Administration
CNOAA"), for itselfand on behalf of the Trustees named in the Consent Decree described
below (..Trustees").
Recitals
A. This Declaration is made pursuant to and in accordance with the Consent Decree
by and among The Boeing Company cBoeing")as Defendant and NOAA, the United States
Department ofthe Interior, the Washington State Department of Ecology, the Muckleshoot
Indian Tribe and the Suquamish Tribe, Civil No. CV-10-758 RSM, December 14, 2010 (the
"Consent Decree").
B. Grantor is the successor in interest to Commercial Waterway District No. 1 of
King County. which acguired interests in certain real property located in King County.
Washington, lying along and including a portion ofthe shoreline and submerged lands on the
Lower Duwamish Waterway the fee ewHeF ef eeftaia real propeFty (the "Port Easement Areas")
located in the Col:lfity of Kiag, State of Washiflgtoa that ftf&-is the subject ofthe Boeing Habitat
Project Scope of Work ('Scopeof Work") attached to the Consent Decree as Appendix A. The
Port Easement Areas are legally described in Exhibit A attached to and made a part ofthis
Declaration by this reference. The Port Easement Areas are also depicted on Exhibit A for
reference purposes only. Pursuant to the Consent Decree, Boeing will implement a habitat
restoration project (the ..Habitat Restoration Project") on the Port Easement Areas to restore
and/or create off-channel and riparian habitats in the Lower Duwamish Waterway.
C. Grantor desires to make this declaration ofconservation easement'in accordance
with the terms ofthe Consent Decree.
Declaration
NOW THEREFORE, Grantor declares that, to the extent permitted by law, the Port
Easement Areas shall be held, conveyed, hypothecated, encumbered, leased, used, occupied and
improved subject to the following covenants, conditions and restrictions, all ofwhich are
declared and agreed to be equitable servitudes in furtherance of a plan for the improvement and
use ofthe Port Easement Areas, and are established and agreed upon for the purpose of
Port Conservation Easement Agreement - Exhibit 5 to Boeing/Port Agreement 1
12/5/11
03008.Q337/LEGAL22259620.1
Item 6b
enhancing and protecting the values of the Port Easement Areas for the purposes set forth in the
Consent Decree. All such covenants, conditions and restrictions shall run with the Port
Easement Areas and each part ofthem, and shall be binding upon, and shall be for the benefit of,
Grantor, NOAA and each ewner of fee tide to all or aAY portioa of~e Port Easemeat t\reas &Hd
~ftheir successors in interest or assigns sueeessOfS ia owaership offee title.
Section 1. The Port Easement Areas shall, , to the extent permitted by law, be used only
for the Habitat Restoration Project and for such traditional industrial uses (including, but are not
limited to, navigation for commercial purposes), stormwater facilities, and utility installations as
are consistent with the Habitat Project, and shall not be used for any purpose or activity that
interferes with the Habitat Restoration Project.
Section 2. Authorized representatives of the Trustees shall have the right to enter the Port
Easement Areas at the times.2..--ftftEl..under the circumstances, and in compliance with the
obligations described in the Consent Decree. frhe Trustees waive any and all claims, losses,
costs. expenses, liabilities or damages against the Port arising from the Trustees'access to the
Port Easement Areas.JNNIJ
Section 3. This Declaration may not be modified or amended except by a writing signed
by Grantor and NOAA.
Section 4. Every person who now or hereafter owns or acquires any right, title or interest
in or to any portion of the Port Easement Areas is and shall be conclusively deemed to have
consented and agreed to every covenant, condition, restriction and provision contained in this
Declaration.
Section 5. This Declaration may be enforced by any Trustee which is acting on behalfof
all of the Trustees.
Section 6. This Declaration shall be governed by the laws ofthe State ofWashington.
Section 7. This Agreement may be executed in a number of identical counterparts. Each
of the counterparts will be deemed an original for all purposes and all counterparts will
collectively constitute one Agreement.
Section 8. The sole remedy for breach of this Declaration shall be specific performance,
and damages shall not be recoverable against the Port or any successor in interest iB ov;aership
Port Conservation Easement Agreement- Exhibit 5 to Boeing/Port Agreement 2
12/5/11
03008-0337/LEGAL222S9620.1
Item 6b
of the Port Easement Area; provided, however, that nothing in this Declaration shall limit the
remedies that are available to NOAA and the Trustees under the Consent Decree.
Section 10. If any covenant, condition, provision, term or agreement of this Declaration
is to any extent held invalid or unenforceable, the remaining portion thereof and all othe
PORT OF SEATILE
By: _____________________
Its: -----------------------
Dated: --------------------
UNITED STATES DEPARTMENT OF COMMERCE ACTING THROUGH THE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
By: _____________________
Its: _______________________
Dated: --------------------
Port Conservation Easement Agreement - Exhibit 5 to Boeing/Port Agreement 3
12/5/11
03008-0337/LEGAL22259620- I
Item 6b
STATEOF WASHINGTON )
) ss.
COUNTYOF-------/
On this __day of , 20_, before me, the undersigned, a Notary Public in
and for the State ofWashington, duly commissioned and sworn, personally appeared
--------------'to me known to be the person who signed as
_______ofThePort ofSeattle, the corporation thatexecuted the within andforegoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed ofsaid
corporation for the uses and purposes therein mentioned, and on oath stated that
_______was dulyelected, qualified and acting as said officerofthe corporation, that
_______was authorized to execute said instrument and that the seal affixed, ifany, is
the corporate seal ofsaid corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
_______,residingat--------
My commission expires----------
Port Conservation Easement Agreement - Exhibit 5 to Boeing/Port Agreement 4
12/5111
03008-0337/LEGAL22259620.1
Item 6b
STATE OF WASHINGTON )
) ss.
COUNTYOF )
On this __day of , 20_, before me, the undersigned, a Notary Public in
and for the State ofWashington, duly commissioned and sworn, personally appeared
--------------'to me known to be the person who signed as
_______ofthe National Oceanic and Atmospheric Administration, the United States
Department ofthe Interior, the agency that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed ofsaid agency for the
uses and purposes therein mentioned, and on oath stated that was authorized
to execute said instrument and that the seal affixed, ifany, is the corporate seal of said agency.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
_______,residingat--------
My commission expires ----------
Port Conservation Easement Agreement- Exhibit 5 to Boeing/Port Agreement 5
12/5/ lJ
030080337JI..EGAL22259620. I
Item 6b
CONSERVATION EASEMENT
EXHIBITS
Item 6b
CWIIJIJIT AW PQBI Qf SCADLC AREA 12 O.CGAL QQCBifDONl
TW.T I'OinlOH OF TIE SOUTHEAIIT QUAifnR Of SECTION 29, T~ l4 NORTI\
~04 EAST, W.M, CITY Of seA~ .. KDG COUNTY, WASfeiQTC">. L~ wn..-.
THE DUWAMISH COIIIMERCIAL WATBMAY,~D~ FOU.OW8:
COIUIE..c.IG AT TIE NO!n'HWEST IIOUNDARY CORHER Of THE AMEHDm aoBHG I'LAHT
2110UNDARY SURVEY, AS RECOROI!.D IIVOWIE 131 Of SURVeYS, PAGE 1U, AECORDS Of
KING COUNTY, WAStiiNGTOM. SAID CORHEit BII!IIIG lHE IHT'ERSECTOIOf TIE NOitl'KUNE
Of THE 8 0EING PLANT 2 BOUNOoUtY. 'MfH l'KENOinHEASTEJU.Y RIGHT OF WAY LINE Of F,&BBJ!T Afi!A - PORT Of! XATTLEN!iA f1 l!..i9Ab DESCI!P1!0!Q
THEOUW~H COIIIMEitCIALWA~-AY, l'KENCEALONG SAID RIGHT Of WAY AND WEST
TW.T POR110N OF THE NORTHWQT QUMJ!It Of IIECTJDN ",T~ 24~
IIOUNDMY, SOVTH 47-61-H EAST, A DISTANCE OF 11U5 FEET TO THE~ !'(">T Of
ltAHGE 04 EMT, WM., c rry Of TUICWILA IN KING COUNTY, WA-TI">, LYING WT711bl
8EGI~; THDICE $011TH "47~1 WI:ST, A DISTANCE Of lUe Ra'; l'KEHCE
THE DUWMdtt CID YMBICM.WATBMAY OE.ICRl81iD AS FDU.O'IIf$;
CONTINUING ALONG SAID EASEMENT THE FOU.OW">G COURSES AND OISTANCU ;
COIORMCING AT THE !OUTHWIEST IIOUNDARY CORNlilt Of THE AlllENlED BOEING I"LAHT
SOUTH 17..24 EAirT, 411 .57 FEET: Sotml17-45-43 EAST, 44 .5'1 FEET; SOUTH 14.A:J.U iAST,
2 110""DAI'tY~. M N!CORDED IN IIOLU IIE U1 OF~S. PAGE'"-RECORDS OF
4Ul FEET: SOVTH 15-41..13 EAST, 42.22 FET; SOUllt"14~ ~T. 4&.17 F.ET; SOUTH U
KING COUNTY, WASHIIGTOH. SAID CORN&R -GTHE IITEIISECTION OF THESOO'lliUNE
51-61 iAST, t2.12 FEET; SOOTH "147~1 iAST, IJJJ7 FEET; $ClOTH 411~~ EAIIT. U7.44
FEET; SOUl'K .os..J Of SM> IIOI!ING PUNT 2 llOUNDARY, W111t TIE~~Y RIGHT OF WAY LINE Of
iAST, 70.U FET; lOUTH E!.-47 EAST. K .4J FEET: SOI1TH 5314-10
lHE DUW....H ~c.L WATf!lfWAY, SAID INTERSECTIOH III:ING A I'OINT ON A
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EXHIBITS TO
OUTFALL EASEMENT
AGREEMENT
BOEING PROPERTY
Item 6bItem 6b
Item 6b
SITE ACCESS AGREEMENT
FOR PORT OF SEATTLE
ON BOEING PROPERTY
This Site Access Agreement ("SAA") is made between Port ofSeattle ("Port")
and The Boeing Company ("Boeing") {hereinafter the "Parties").
RECITALS
A. The Port is the successor in interest to Commercial Waterway District No.
1 of King County which acquired interests in certain real property located in King
County, Washington, lying along and including a portion of the shoreline and submerged
lands on the Lower Duwamish Waterway and generally shown on EXHIBIT A (the "Port
Property").
B. Boeing owns certain real property adjacent to the Port Property and
generally shown on EXHIBIT B (the "Boeing Property").
C. The Port intends to carry out certain shoreline restoration work ("Work")
on the Port Property adjacent to the Boeing Property. The Port requires access to the
Boeing Property in order to carry out the Work.
D. The Parties have agreed to enter into this SAA to provide access to the
Boeing Property for the Port and its contractors and agents to perform the Work.
In consideration of the mutual covenants and agreement herein, the Parties agree
as follows:
AGREEMENT
Boeing hereby grants to the Port and its contractors and agents a non-exclusive
license for access to the Boeing Property to conduct the Work. The Port agrees that it
will provide a copy ofthis SAA to any contractor or agent retained to assist in the Work,
and that all contractors and agents must agree in writing to be bound by its terms.
The time and maxmer of such access shall be pursuant to the terms ofthis SAA:
Site Access Agreement - Exhibit 3 to Port/Boeing Agreement 1
33055-0002/LEGAL21523135.1
8/11/11
Item 6b
1. Time/Schedule.
a. This SAA shall remain in full force and effect until the Work is
completed. The Port shall coordinate with Boeing to ensure that the Work is done in a
timely manner.
b. The Port and its contractors and agents shall have twenty-four (24)
hour access, seven (7) days per week, 365/366 days per year to the Boeing Property
starting on the Effective Date of this SAA.
2. Boeing'sCooperation with the Work; No Conflicting 3rt! Party
Agreements. Boeing, including its representatives, contractors, or agents, shall cooperate
in the performance ofthe Work by the Port, including its representatives, contractors, or
agents. At all times while this Agreement remains in place, Boeing shall use reasonable
efforts to refrain from entering into any agreements with third parties concerning the
Boeing Property that would be dett:imental to the Port'sefforts to conduct and complete
the Work in a timely and diligent manner.
3. Hold Harmless and Indemnification.
3.1 The Port'sHold Harmless and Indemnification Agreement: The
Port shall indemnify and hold Boeing hannless from and against (i) any and all
claims, losses, costs, expenses, liabilities or damages (collectively, "Claims")
arising out of the Port's negligent or willful failure to perform its obligations
under this SAA, (ii) any and all Claims related to the release of hazardous
substances at, on, under or from the Boeing Property due to the Port'suse ofthe
Boeing Property after the Effective Date ofthis SAA, and (iii) any and all claims
or liability for bodily injury to or death of any person or loss of or damage to any
property, including reasonable attorneys' fees and costs, arising out ofthe Port's
or its contractors, consultants, or agents negligence or willful misconduct
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 2
330SS~0021LEGAL21S2313S.l
8/ll/ll
Item 6b
associated with the Port'suse of the Boeing Property after the Effective Date of
this SAA, except to the extent such Claims are caused by the negligence or
willful misconduct of Boeing or Boeing'sagents, employees, contractors or
invitees.
3.2 Boeing'sHold Harmless and Indemnification Agreement: Boeing
will indemnify, defend, and hold the Port harmless from and against (i) any and
all Claims arising out of Boeing'snegligent or willful failure to perform its
obligations under this SAA, and (ii) any and all Claims for bodily injury to or
death of any person or loss ofor damage to any property, including reasonable
attorneys' fees and costs, arising out ofthe Boeing'suse ofthe Boeing Property
after the Effective Date of this SAA, or from any activity, work or thing done or
permitted by Boeing or Boeing'semployees, agents, contractors or invitees in or
about the Boeing Property after the Effective Date ofthis SAA, except to the
extent such Claims are caused by the negligence or willful misconduct on the part
of the Port, its agents, employees, contractors or invitees.
3.3 No Effect on Allocation of Responsibility for Prior Releases. This
Agreement shall not be interpreted to have any effect on the Parties' liability with
respect to actions or activities that occurred prior to the Effective Date of this
Agreement, including without limitation, liability for past releases of hazardous
substances to the Duwamish.Waterway.
4. Party Representatives. Communication under this Agreement shall be
directed to the following party representatives:
To the Port:
Kathy Bahnick
Port of Seattle
P.O. Box 1209
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 3
330550002/LEGAL21523135.1
8/11/11
Item 6b
Seattle, WA 98111
Phone: (206) INSERT
Email: Bahnick.K@portseattle.org
Tom Newlon
Stoel Rives, LLP
600 University Street, Suite 3600
Seattle, WA 98101
Phone: (206) 386-7677
Email: tanewlon@stoel.com
To Boeing: Mike Gleason
The Boeing Company
P.O. Box 3707
MIC lW-12
Seattle, WA 98124-2207
Phone: (206) 290-6576
Email:
michael. j.gleason@boeing.com
Leah Krider
EHS, Boeing Law Department
2710 160th Avenue SE
Bellevue, W A 98008
Phone: (425) 373-7123
Email: Leah.M.Krider@boeing.com
Mark Schneider
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
Phone: (206) 359-8000
Email:
MWSchneider@perkinscoie.com
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 4
3305S-00021L.EGAL2 1523135. I
8/11/11
Item 6b
Any party may change the person or address to which communication may be
directed by giving written notice to the representatives provided above.
5. Authority to Execute. Each person executing this SAA on behalfof
another person or entity represents and warrants that he or she is fully authorized to
execute and deliver this SAA on behalfofsuch person or entity. The Parties each
represent and warrant to each other that no consent ofany person or entity not a party to
this SAA is necessary in order for this SAA to be fully and completely binding upon the
Parties.
6. Entire Agreement. This SAA contains the entire understanding between
the Parties hereto and supersedes any prior or contemporaneous understandings and
agreements between the Parties with respect to the subject matter hereof. There are no
other representations, agreements, arrangements or understandings, verbal or written,
between and among the parties hereto, or any ofthem, relating to the subject matter of
this SAA. No amendment or supplement to this SAA shall be valid or effective unless
made in writing and executed by the Parties hereto.
7. No Waiver ofRemedy for Breach. A failure by any party to this SAA to
enforce a term or condition ofthis SAA does not constitute a waiver of that party's
remedies for any breach ofthis SAA. Waiver by a party to this SAA ofone or more
terms or conditions of this SAA does not constitute a waiver of any other terms or
conditions of this SAA.
8. Applicable Law. This SAA shall be governed by the laws ofthe State of
Washington, exclusive of its choice of law rules. Venue for all disputes shall be King
County, Washington.
9. Successors and Assigns. This SAA shall inure to the benefit of and be
binding upon the Parties' respective successors and assigns.
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 5
33055-0002/l.EGAU1523135.1
8/ll/1 I
Item 6b
10. Effective Date. The Effective Date ofthis SAA is the first date upon
which the SAA has been executed by all Parties.
11. Miscellaneous. This SAA may be executed in any number of
counterparts, each ofwhich when executed and delivered shall constitute an original
document, but all of which together shall constitute one and the same document. Neither
Party shall record this SAA, nor any memorandum of this SAA. Titis SAA is solely for
the benefit of the Parties and their successors and assigns, and no third party beneficiaries
are intended to result herefrom.
Accepted:
Port of Seattle The Boeing Company
By:___________ By:___________
Title:____________ Title:.___________
Date:____________ Date:____________
Site Access Agreement- Exhibit 3 to Port/Boeing Agreement 6
33055-0002/LEGAL21523l35.1
8/Il/11
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