Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
Agenda Item: 8g_attach
Meeting Date: September 10, 2024
INTERLOCAL AGREEMENT BETWEEN THE PORT OF SEATTLE AND THE WASHINGTON STATE
DEPARTMENT OF NATURAL RESOURCES REGARDING THE SMITH COVE BLUE CARBON PILOT
PROJECT
This Interlocal Agreement is entered into between the Port of Seattle (Port), a municipal
corporation of the State of Washington, and the Washington State Department of Natural
Resources (DNR), a department of the State of Washington, collectively known as the "Parties"
pursuant to Interlocal Cooperation Act, Chap. 39.34 RCW.
RECITALS
WHEREAS, Chapter 39.34 RCW authorizes government entities to contract to perform any
governmental service, activity, or undertaking which each public agency entering into the contract
is authorized by law to perform;
WHEREAS, the Port has legal authority to evaluate different methods of mitigating environmental
impacts associated with operation of its facilities and meeting its Century Agenda, which includes a
goal to create, restore or enhance forty additional acres of habitat in the Green-Duwamish
Watershed and Elliott Bay, as per the Motion of the Port of Seattle Commission, dated December
4, 2012;
WHEREAS, the DNR has legal authority to conduct research into water quality and wildlife habitat;
WHEREAS, the Parties share common interests in promoting fish and wildlife habitat restoration,
carbon sequestration and water quality improvement in the Puget Sound area;
WHEREAS, the Port has taken steps to enhance, create and/or restore bull kelp, eelgrass and
Olympia oyster beds in Smith Cove, at the north end of Elliott Bay for the purposes of evaluating
marine carbon sequestration, habitat restoration and water quality improvement potential
associated with these enhancements;
WHEREAS, DNR has co-located water quality sensors at Smith Cove for the purposes of evaluating
changes in seawater chemistry, shellfish growth, and eelgrass productivity, and thus included the
site as part of the Puget Sound-wide "Acidification Nearshore Monitoring Network" (ANEMONE);
WHEREAS, the Port and DNR previously entered into an Interlocal Agreement (ILA) (DNR #93100877) to conduct a three-year monitoring study related to carbon sequestration, shellfish
growth/survival, eelgrass productivity, and water quality, which ILA is now expired;
WHEREAS, the Port of Seattle Commission's Energy & Sustainability Committee would like the Port
to conduct a five-year monitoring to conduct eelgrass, kelp and sediment carbon monitoring data
collection ("Monitoring Project");
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
WHEREAS, the Parties would like to enter into a five-year agreement to support eelgrass, kelp and
sediment carbon monitoring with DNR's Aquatic Assessment and Monitoring Team undertaking
key elements of this Monitoring Project;
NOW, THEREFORE, in exchange for the consideration described in this Agreement, the parties
agree as follows:
I.
BACKGROUND
Smith Cove is located on Port-owned aquatic lands as depicted in the map attached as Exhibit A.
The site is the location of the Monitoring Project, which included specific habitat restoration
treatments undertaken between the years of 2018 to 2022 to evaluate potential benefits,
including carbon sequestration, water quality (amelioration of seawater acidification) and habitat
productivity. These treatments included installation of bull kelp, eelgrass and Olympia oyster
beds. Following installation, the Port measured potential benefits in and around the site for three
years. At the conclusion of the three-year monitoring period, the Parties evaluated the results
and developed a plan for on-going monitoring at the site. The Parties will collaborate to
implement this Monitoring Project as outlined below.
II.
RESPONSIBILITIES OF THE DEPARTMENT OF NATURAL RESOURCES
1. DNR shall dedicate staff time (approximately 435 hours annually) of a Natural Resource
Scientist I, III, and IV for the duration of this Monitoring Project. DNR staff time
dedicated to this Monitoring Project must be sufficient, as agreed to by both Parties in
writing, in order to fulfill the DNR responsibilities identified in this Section II.
2. DNR shall continue to include the Smith Cove project site in the ANEMONE array, which
means there will be necessary installation, maintenance and monitoring of water
quality sensors;
3. DNR shall incorporate ANEMONE volunteer participation into a community-based
science plan and implement this plan with the goal of involving communities identified
by the Port in the Monitoring Project;
4. DNR will be responsible for repairs to water quality sensors and other ANEMONE
equipment required for implementation of the Monitoring Project;
5. DNR shall make water quality and biological data collected from ANEMONE available to
the Port and members of communities identified by the Port;
6. DNR shall undertake the collection of sediments for assessing sediment carbon
sequestration;
7. DNR will be responsible for the processing of sediment samples to assess carbon
sequestration;
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
8. DNR shall undertake the monitoring of sediment accretions and surface sediment
properties;
9. DNR shall undertake vegetation surveys in the intertidal area within Smith Cove;
10. DNR shall generate a final report due five years from execution of this Agreement, prior
to this Agreement's expiration date, summarizing the carbon sequestration and
biological data findings.
III.
RESPONSIBILITIES OF THE PORT
1. The Port will provide a not-to-exceed total of $ 227,000 in funding, which includes a 10
percent contingency fund, to DNR to conduct the tasks described in Section II. DNR will
invoice the Port for these funds to be paid in quarterly disbursements upon completion of
work identified in the invoice throughout the effective period of this Agreement.
2. The Port will provide access to the Monitoring Project site and will coordinate with
designated DNR personnel for temporary use of Port equipment for purposes of carrying
out the Monitoring Project under this Agreement, including:
a. Access to the Terminal 91 boathouse for storage of DNR's sampling equipment and
gear;
b. Ability to travel by means of the Port's boat which must be captained by Port staff
c. All file materials and data which may be germane to the Monitoring Project, as
determined by both Parties in writing.
3. The Port will cooperate with DNR to identify communities participating in communitybased science initiatives.
IV.
BUDGET
The total budget for this Agreement is $ 227,000, which funding will be used to support the tasks
described in Sections II and III above. DNR and the Port may obtain additional funding as needed
to support their own activities in connection with the Monitoring Project, that funding will not be
included in the total under this Agreement unless agreed to by both Parties in writing by an
executed amendment. DNR will manage the budget for the project and will provide quarterly
updates to the Port.
The Parties designate the following representatives for coordinating administrative tasks (such as
budget and invoicing) and transmittal of deliverables as described in Exhibit B, Anticipated
Schedule of Tasks and Deliverables, and any notices required by this Agreement:
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
DNR:
Washington State Department of Natural Resources
c/o Rachel Skubel ([email protected])
Aquatic Assessment and Monitoring Team
1111 Washington St. SE
Olympia, WA 98504
Port:
Port of Seattle
c/o Kathleen Hurley ([email protected])
Maritime Environment and Sustainability
2711 Alaskan Way
Seattle, WA 98121
Any updates to the identity of the designated representative will be provided in writing by an
executed amendment to the individual identified above.
V.
PROPERTY
Upon termination of this Agreement, each Party will retain ownership of any real or personal
property acquired in its own name prior to execution of this Agreement. "Background IP" means
all intellectual property that: (i) was owned or developed by a Party prior to the execution of this
Agreement; or (ii) was independently developed by a Party without contribution, assistance or
influence from the other party to this Agreement. Each Party will retain all rights, title and interest
in their respective Background IP. Each Party hereby grants to the other Party a non-exclusive,
nontransferable, paid-up, worldwide, royalty-free license under its Background IP as may be
necessary for such other Party to perform its obligations under this Agreement.
VI.
TERM OF THIS AGREEMENT
This Agreement is intended to be effective on September 30, 2024, or upon the final signature of
the two Parties, whichever event occurs last, for a term of five years from the date of final
signature.
VII.
DISPUTE RESOLUTION
Any disputes that may arise between the Port and DNR shall be governed under these Dispute
Resolution provisions. The Port and DNR agree that cooperation and communication are essential
to resolving issues efficiently. If disputes about the implementation of this Agreement arise, the
Managing Director of the Maritime Division for the Port and the Aquatics Division Manager for DNR
shall meet to discuss and attempt to resolve the dispute in a timely manner. If the DNR's Aquatics
Division Manager and the Port's Managing Director are unable to resolve the dispute, then the
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
Parties are free to pursue any legal remedies. At all times prior to resolution of the dispute, the
Parties shall continue to perform and make any required payments under this Agreement in the
same manner and under the same terms as existed prior to the dispute.
VIII.
INDEMNIFICATION AND HOLD HARMLESS
To the extent permitted by law, DNR will protect, defend, indemnify, and hold harmless the Port,
its officers, employees and agents from any and all costs, claims, judgments, or awards of damages
arising out of or in any way resulting from the negligent acts or omissions of DNR, its officers,
employees, or agents. DNR agrees that the obligation to indemnify, defend, and hold harmless the
Port and its agents and employees under this provision extends to any claim, demand or cause of
action brought by or on behalf of any employee of DNR against the Port, its officers, agents, or
employees and includes any judgment, award and cost arising therefrom, that may arise under the
execution of this Agreement. For this purpose, DNR hereby waives, with respect to the Port only,
any immunity that would otherwise be available against such claims under the Industrial Insurance
provisions of Title 51 Revised Code of Washington (RCW). This indemnification shall survive the
termination of this Agreement.
IX.
DISCRIMINATION
The Port hereby certifies that it is an equal opportunity employer and has developed and
implemented affirmative action policies pursuant to Port of Seattle Resolution #3628, paragraph
16 and other policies and procedures of the Port. The two Parties agree that they will not
discriminate against any employee or applicant for employment because of race, color, religion,
sex, national origin, marital status, or disability. The two Parties agree that they will take
affirmative action to ensure that all employment actions are without regard to race, color, religion,
sex, national origin, marital status or disability. Such action includes but is not limited to
employment, upgrading, layoff, or termination, rates of pay or other forms of compensation, or
selection for training, including apprenticeship.
NONDISCRIMINATION.
a. Nondiscrimination Requirement. During the term of this Contract, CONTRACTOR, including
any subcontractor, shall not discriminate on the bases enumerated at RCW 49.60.530(3). In
addition, CONTRACTOR, including any subcontractor, shall give written notice of this
nondiscrimination requirement to any labor organizations with which CONTRACTOR, or
subcontractor, has a collective bargaining or other agreement.
b. Obligation to Cooperate. CONTRACTOR, including any subcontractor, shall cooperate and
comply with any Washington state agency investigation regarding any allegation that
CONTRACTOR, including any subcontractor, has engaged in discrimination prohibited by this
Contract pursuant to RCW 49.60.530(3).
c. Default. Notwithstanding any provision to the contrary, DNR may suspend CONTRACTOR,
including any subcontractor, upon notice of a failure to participate and cooperate with any
state agency investigation into alleged discrimination prohibited by this Contract, pursuant
to RCW 49.60.530(3). Any such suspension will remain in place until DNR receives
notification that CONTRACTOR, including any subcontractor, is cooperating with the
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
investigating state agency. In the event CONTRACTOR, or subcontractor, is determined to
have engaged in discrimination identified at RCW 49.60.530(3), DNR may terminate this
Contract in whole or in part, and CONTRACTOR, subcontractor, or both, may be referred for
debarment as provided in RCW 39.26.200. CONTRACTOR or subcontractor may be given a
reasonable time in which to cure this noncompliance, including implementing conditions
consistent with any court-ordered injunctive relief or settlement agreement.
d. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of
Contract termination or suspension for engaging in discrimination, CONTRACTOR,
subcontractor, or both, shall be liable for contract damages as authorized by law including,
but not limited to, any cost difference between the original contract and the replacement
or cover contract and all administrative costs directly related to the replacement contract,
which damages are distinct from any penalties imposed under Chapter 49.60, RCW. DNR
shall have the right to deduct from any monies due to CONTRACTOR or subcontractor, or
that thereafter become due, an amount for damages CONTRACTOR or subcontractor will
owe DNR for default under this provision.
X.
NOTICES
All notices to the parties under terms of this Agreement, unless otherwise specified herein, or as
may be amended, shall be in writing, addressed as follows:
Department of Natural Resources
c/o Rachel Skubel
Aquatic Assessment and Monitoring Team
1111 Washington St SE
Olympia, WA 98504
XI.
Port of Seattle
c/o Kathleen Hurley
Maritime Environment & Sustainability
2711 Alaskan Way
Seattle, WA 98121
ENTIRE AGREEMENT
This Agreement is intended to express the entire Agreement of the Parties and may not be altered
or modified in any way unless such modification is reduced to writing, signed by both parties, and
affixed to this original Agreement.
XII.
RIGHTS AND REMEDIES
The rights and remedies of the parties to this Agreement are in addition to any other rights and
remedies provided by law except as otherwise provided in this Agreement.
XIII.
ASSIGNMENT
The parties will not assign, transfer, or otherwise substitute its obligations under the Agreement
without the prior written consent of the other parties. Any assignment made in violation of this
provision will be null and void and confer no rights whatsoever on any person.
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
XIV.
ADDITIONAL SERVICES, MODIFICATION, AND TERMINATION
The Parties may negotiate additional and non-standard services, which must be agreed to in
writing prior to implementation.
Any modifications to this Agreement may be modified by the mutual agreement of the parties
under the same formalities with which this Agreement was executed and must be in writing.
Either Party may terminate this Agreement upon written notice to the other Party, in which case
DNR shall promptly transmit a final invoice for work not previously invoiced and the Port's
payment shall be due to the DNR within 30 days of receipt of a request for payment.
XV.
APPLICABLE LAWS AND VENUE
This Agreement will be governed by, and construed and enforced in accordance with, the laws of
the State of Washington. Any legal action brought resulting from this Agreement shall be brought
in the Superior Court of Thurston County, Washington.
XVI.
SEVERABILITY
If any court determines that any provision of this Agreement is invalid or unenforceable to any
extent, the remainder of the Agreement shall not be affected thereby and each other term,
covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted
by law.
XVII.
WAIVER OF DEFAULT
Waiver of any default by either Party shall not be deemed to be a waiver of any subsequent
default. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of
any other or subsequent breach. Waiver of any default or breach shall be interpreted or
construed to constitute a modification of the terms of this Agreement, unless so stated in writing
and signed by both Parties.
XVIII. MUTUAL NEGOTIATION
The Parties agree that the terms and provisions of this Agreement have been negotiated, that the
Agreement shall be deemed to be mutually negotiated and mutually drafted by both Parties, and
the language in the Agreement and Exhibits shall, in all respects, be construed according to its fair
meaning and not strictly for or against either Party.
XIX.
LEGAL OBLIGATIONS
This Agreement does not relieve either Party of any obligation or responsibility imposed upon it by
law. No third-party beneficiaries are intended to be created by this Agreement and no third party,
by law or equity, may enforce this Agreement against the Port or DNR, their officers or elected
officials, or any person.
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
XX.
COUNTERPARTS
The Parties may execute this Agreement in counterparts, which, taken together, constitute the
entire Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year
set forth below their signatures.
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
PORT OF SEATTLE
_____________________________________
Signature
___________________________________
Signature
Katie Allen ____________________________
Printed Name
___________________________________
Printed Name
_____________________________________
Acting Deputy Supervisor of Forest Resilience,
Regulation, and Aquatics
___________________________________
Title
_____________________________________
Date
___________________________________
Date
Exhibit A
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
Exhibit A
Exhibit B
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Interlocal Agreement between the Port of Seattle and Washington State Department of Natural Resources - Smith Cove Blue Carbon Pilot Project
DNR Agreement # 93-107793
Anticipated Schedule, Tasks, and Budget (2024-2029). In addition to the annual budget below, the
contract includes a contingency fund of 29,078.51, leading to a total of 227,000.
Year
1
Season
Summer 2024
Fall 2024
Spring 2025
Summer 2025
2
Spring 2026
Summer 2026
3
Spring 2027
Summer 2027
4
Spring 2028
Summer 2028
5
6
Spring 2029
Spring 2025Spring 2029
Tasks performed by DNR
Logistics
Logistics
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Surface sediment collection (Eelgrass [EG]
bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Sediment core collection and Isotope
accretion rate
Surface sediment collection (EG bed),
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Surface sediment collection (EG bed)
Sediment accretion rate (rods, EG bed)
Vegetation survey (Intertidal)
Analysis, Write up
Installation, Maintenance/repair and
monitoring of water quality sensors.
Incorporate volunteer participation into a
Community-Based Science Plan
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Annual Budget
2024: 12,915
2025: 27,064
2026: 64,739
2027: 28,684
2028: 29,531
2029: 34,988