THIS PROJECT IMPLEMENTATION AGREEMENT ("Agreement") is made as of the date of execution by the parties, between THE CITY OF SEATTLE, a municipal corporation of the State of Washington (the "City" or "Party") and KING COUNTY, a political subdivision of the State of Washington (the "County" or "Party") (jointly, "Parties").

1. The Parties entered into a long-term agreement for sewage disposal dated January 26, 1961, as amended ("Basic Agreement").
2. A portion of the City’s sewer system consists of combined sewers that carry both sanitary sewage and storm water runoff, and the Municipality of Metropolitan Seattle ("Metro"), predecessor to the County, acquired some of the City’s combined sewer trunks pursuant to the Basic Agreement.
3. The County, as successor to Metro, and the City planned specific projects to reduce combined sewer overflows into Lake Union and into Elliott Bay in the vicinity of Denny Way in accordance with the respective City and Metro Combined Sewer Overflow ("CSO") Plans adopted in 1988.
4. The City and Metro jointly and cooperatively undertook the "Feasibility Study for CSO Control for Lake Union/Denny Regulator," completed in May 1992, which determined that design and construction of Metro’s Denny Way CSO project concurrent with design and construction of the City’s Lake Union project would enable the City to avoid construction of some facilities it would otherwise have had to construct to meet the objectives of its project.
5. To accomplish the foregoing and to accept an EPA Infrastructure Grant ("EPA Grant") from the U.S. Environmental Protection Agency for the benefit of both Parties, the County advanced the schedule for its Denny Way CSO project, which would otherwise have been scheduled for completion by 2006, to meet required CSO reduction levels for its system.
6. The County entered into an agreement with the EPA in February 1995 for the EPA Grant to assist funding of both the City’s Lake Union project and the County’s Denny Way CSO Project.
7. The Parties determined a cost-share arrangement for their respective projects that reflects the proportionate benefit to be realized by each of the Parties.
8. The Parties met the environmental requirements under the National Environmental Policy Act ("NEPA") for Phase 1 and prepared a Facilities Plan for Phase 1 in June 1995. The City completed design and construction of Phase 1.
9. The Parties entered into the Denny Way / Lake Union CSO Agreement dated October 23, 1995, which established their respective roles and responsibilities for implementing and funding the Denny Way / Lake Union Combined Sewer Overflow Project ("the Project"). The Project is estimated to have a total cost of $166 million, including the cost of parts that have already been constructed at the time of this Agreement.
10. The Parties met the environmental requirements under NEPA for Phases 2 and 3-4 and prepared a Facilities Plan for Phases 2 and 3-4 in July 1998.
11. The Parties have determined that it will be cost-effective and will reduce disruption to the South Lake Union neighborhood to revise their relationship so that the County will incorporate an element of the City’s design into the County’s construction plans and construct that element on behalf of the City.
12. The Parties wish to restate the 1995 agreement to clarify and implement details as they have become known since that document was executed and to reflect the current status of the Project, as well as to reduce reference to multiple documents.
13. The combined projects will contribute to the improvement, enhancement and preservation of the region’s water resources by significantly reducing the discharge of combined sewage into Lake Union and Elliott Bay.

Now, therefore, in consideration of the mutual promises contained herein, the Parties agree as follows:

1. Agreement

This Agreement reflects the understanding between the Parties regarding the matters covered in it and incorporates all prior negotiations and agreements between the Parties. The Agreement shall be in full force and effect from the date of execution until fulfillment of the obligations of the parties to each other and fulfillment of the obligations contained in any grant agreements for the Project or any portion of the Project. The Parties expect that all obligations will be fulfilled by the end of 2006 but recognize that circumstances may arise that make it appropriate to mutually agree to extend this Agreement beyond that year. This Agreement includes all Recitals and the following exhibits:

Exhibit A – South Lake Union Facilities.

Exhibit B – EPA Assistance Agreement / Amendment No. XP990384-01-0, awarded February 16, 1995.

Exhibit C – Agreement for Sewage Disposal, executed January 26, 1961.

2. Scope of the Project

The Project, as configured at the time of this Agreement, has three phases. The City has completed Phase 1, the Lake Union CSO Control project. Phase 2 has two elements that are City-owned parts of the Project. Phase 3-4 is the County-owned part of the Project. The phases of the Project are more fully described in the Facilities Plan for Phase 1 and the Facilities Plan for Phases 2 and 3-4.

2.1 Construction of Phase 2 – General

Phase 2 of the Project has two elements: 1) the Valley Connection, which includes a pipeline between Terry and Fairview avenues and associated structures identified on Exhibit A, and 2) CSO #175. The Valley Connection is being designed by the City and will be constructed by the County on behalf of the City, which will be reimbursed by the City, as part of two of the five Phase 3-4 contracts. CSO #175 is being designed and will be constructed by the City in a manner and upon a schedule that complies with the County’s obligations under the EPA Grant.

2.2 Construction of Phase 3-4 – General

Phases 3 (Mercer Street Tunnel, outfalls, and associated pipelines) and 4 (treatment control), as originally contemplated, have subsequently been revised and combined into Phase 3-4 of the Project. Implementation of Phase 3-4 will require five construction contracts. Of the five, the South Lake Union Pipelines contract and the Elliott West CSO Control Facility contract will include certain Phase 2 work (see Section 2.1). The remaining three contracts for Phase 3-4 will be designed and constructed by the County.

3.1 Design and Bid Process

To the extent not already completed as of the date of this Agreement, the City shall complete the design and the technical specifications for the Valley Connection and submit them to the County in a timely manner. The Parties shall work expeditiously and cooperatively during the design/review process to maintain the Project’s construction schedule. The County shall prepare the final bid documents incorporating the Valley Connection, including appurtenances, relocations and restoration as provided in the drawings and specifications from the City, into the plans and specifications for the construction contract for the South Lake Union Pipelines Contract and Elliott West CSO Control Facility Contract of the Project. It is expected that the cost of the Valley Connection will be approximately $1.7 million of the total $166 estimated cost of the Project; the balance of the South Lake Union Pipelines contract is estimated at $8.2 million of the estimated total Project cost.

The City, in its capacity of designing and providing specifications, shall review and approve, approve with comments, or disapprove the Valley Connection portions of the bid documents in a timely manner. Following the City’s approval of the bid documents, the County shall advertise the South Lake Union Pipelines contract for bids in accordance with state law applicable to public works contracts, evaluate the bids and award the contract. The County shall advertise for bids by the end of May 2001 or as soon thereafter as reasonably practicable.

3.2 Government Approvals

The County has obtained or shall obtain all permits and authorizations required by any level of government to allow construction of the Valley Connection in accordance with the plans and specifications. The City, if so requested by the County, shall be a co-applicant with the County for permits required by City regulatory ordinances. However, nothing in this Agreement is intended to require that the City exercise its discretionary authority under its regulatory ordinances to further the Valley Connection or the Project.

3.3 Construction

The County shall begin construction of the South Lake Union Pipelines by the end of January 2002 or as soon thereafter as reasonably practicable. The County and City shall carry out their roles in completing construction of the Valley Connection in such a manner and upon such a schedule as may be necessary to comply with the requirements of the EPA Grant and avoid risking penalties by state and federal agencies, including, but not limited to, the Department of Ecology.

The County shall provide to the City’s designated representative copies of all submittals and requests for information related to the Valley Connection in a timely manner. The City shall review and respond to all submittals and requests for information within 14 days of receiving them.

The County shall provide to the City copies of all proposed change orders related to the Valley Connection prior to execution. The City shall review and approve or disapprove all proposed change orders in a timely manner. If the cost of any one change order, or the accumulated total cost of change orders, is greater than 25 percent of the base cost of the Valley Connection (see Section 4.2 below), then the change order work shall not commence without the City’s written approval, which may not be unreasonably withheld. Notwithstanding the foregoing, if the proposed change order results from an emergency situation, defined as having imminent risk of loss of life, health or property if the change is not made, then the change order work may occur prior to provision of the change order to the City. The County shall notify the City of the emergency and resultant change order work as soon as possible after discovery of the risk.

The City may recommend changes, within the scope of the work, to the Valley Connection construction by providing a description of the proposed change, the reason, and the estimated cost to the County’s project manager. The County shall review and approve or disapprove the City’s proposed changes in a timely manner. The County’s approval shall not be unreasonably withheld. If the Parties are unable to agree on the necessity of the City’s proposed change, they shall resort to the Dispute Resolution process described in this Agreement, recognizing that time is of the essence in resolving the necessity of the change.

Except for changes made in accordance with this section, the County shall cause the Valley Connection to be constructed and installed strictly in accordance with the City’s design and technical specifications, state public works laws and the bid documents.

The County shall provide contract administration and inspection services, construction management, and engineering services during construction of the entire South Lake Union Pipelines contract, including the Valley Connection. The County shall make progress payments. The County shall notify the City of the status of construction at construction milestones.

The County shall provide to the City, TV tapes of the pipeline and access to structures and allow two weeks’ time for City inspection and written approval of the work prior to the County’s acceptance of the work from the contractor. In the event of any discrepancies between the work and the bid documents as updated by applicable change orders, the City shall provide a written notice to the County and the County shall require the South Lake Union Pipelines contractor to correct the discrepancy.

At the conclusion of construction of the Valley Connection, which the Parties expect to occur in the second quarter of 2003, the City shall conduct final inspection of the Valley Connection work in a timely manner, and the City’s Project Manager shall provide written notice to the County of the City’s acceptance of the work before the County accepts the contractor’s work. Upon the City’s acceptance of the work, the City shall own the Valley Connection. The County shall close out the construction contract and provide as-built drawings, including an AutoCad 14 file, to the City in a timely manner.

3.4 Insurance, Warranties and Indemnification

Additional Insured: Prior to commencement of construction of the Valley Connection, the County shall (a) cause the contractor to name the City as an additional insured on all policies of liability insurance that the County requires the Valley Connection contractor to carry and (b) provide the City with evidence reasonably acceptable to the Risk Manager of the City that the City has been so named. The County shall cause the insurance to be maintained until acceptance of the contractor’s work for the Valley Connection, or for such longer time as required by the County’s contract with the South Lake Union Pipelines contractor.

Third-Party Beneficiary: The County shall cause the contract between the County and the South Lake Union Pipelines contractor to state explicitly that (a) for purposes of construction of the Valley Connection, the City is a third-party beneficiary of the contract, including without limitation its indemnification provisions, and (b) all representations, warranties, and guarantees of the contractor relating to construction and installation of the Valley Connection run to the City. The Parties do not intend that this paragraph be interpreted to create any obligation or liability or promise of performance to any third party for purposes of construction of the Valley Connection.

Mutual Indemnification Concerning Valley Connection: (a) The County shall indemnify and hold the City harmless from any and all losses, claims, actions, damages and expenses arising out of or resulting from the County’s performance or lack of performance of its contract administration, construction and engineering obligations for the Valley Connection under this Agreement. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against the City, the County, upon notice of the commencement of the suit, shall defend the suit at its sole cost and expense; and if final judgment be adverse to the City, or the City and the County jointly, the County shall promptly satisfy the judgment. This indemnity provision is valid and enforceable only to the extent of the County’s sole or concurrent negligence. Nothing contained in this paragraph shall be construed as requiring the County to indemnify the City against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the City, its employees, officers or agents, or from more than the County’s share of the concurrent negligence of the City and the County. (b) The City shall indemnify and hold the County harmless from any and all losses, claims, actions, damages and expenses arising out of or resulting from the City’s performance or lack of performance of its design, technical specification and review obligations for the Valley Connection under this Agreement. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against the County, the City, upon notice of the commencement of the suit, shall defend the suit at its sole cost and expense; and if final judgment be adverse to the County, or the County and the City jointly, the City shall promptly satisfy the judgment. This indemnity provision is valid and enforceable only to the extent of the City’s sole or concurrent negligence. Nothing contained in this paragraph shall be construed as requiring the City to indemnify the County against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the County, its employees, officers or agents, or from more than the City’s share of the concurrent negligence of the County and the City. (c) Solely for the purpose of carrying out each Party’s indemnity obligations under this paragraph, and not for the benefit of the indemnifying Party’s employees or any third parties, the indemnifying Party expressly waives any immunity that may be granted to it under the Washington State Industrial Insurance Act, Title 51 RCW. These indemnity obligations have been explicitly and mutually negotiated by the Parties and shall survive the termination or expiration of this Agreement.

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County City

4.1 Total Cost of the Project

The County’s total cost of the Denny Way / Lake Union CSO Control Project (see Section 2) shall include all costs of and/or related to design, construction, project management, construction inspection, right-of-way acquisition, legal support, environmental review, restoration and mitigation. The County’s total cost shall also include all costs associated with obtaining necessary permits, any and all costs incurred as a result of permit conditions and any and all costs to defend those permits against any appeals, lawsuits or other actions. The City shall reimburse the County a share of the County’s total cost of the Project as described in the following paragraphs of Section 4 (less grants as determined in Section 6). This share is based on the Parties’ determination in 1995 that the City would reimburse the County for 17 percent of total project costs, less grants, of the County’s Denny Way CSO project. The City and the County also have separate, unshared construction and cost responsibility for certain elements of the Project as described in Section 5.

Costs will be shared as follows for separate parts of the Project:

4.2 South Lake Union Pipelines Contract

Construction and contract administration costs of the South Lake Union Pipelines contract, including, without limitation, change orders, shall be shared by the Parties as described in this subsection.

In addition to the direct payments to the contractor, the following shall also be considered part of the overall South Lake Union Pipelines contract:

• Change orders on the South Lake Union Pipelines contract that are not directly attributable to any one element of the contract. (See further details on change orders in Section 3 of this Agreement.)
• Engineering services during construction.
• Program and construction management consultant costs of Montgomery Watson Americas, Inc.
• Actual County construction management costs, including special inspections, testing and laboratory costs, overhead, and similar costs.
• Payments to utility agencies (including City departments) and companies for utility relocations, inspections and similar costs not otherwise included in the bid price from the contractor.

Prior to opening bids for the South Lake Union Pipelines contract, the County shall prepare an engineer’s cost estimate for the total contract and for the separate elements of the contract. The engineer’s cost estimate shall determine the proportion of overall contact costs attributable to the separate elements of the South Lake Union Pipelines contract.

Specific elements of the South Lake Union Pipelines contract to be identified in the cost estimate as separate line items will include, but will not be limited to:

• Valley Connection, including pipeline and associated structures

• South Lake Union CSO Pipeline, showing separately
• segment 1 (8^th Avenue North to Westlake Avenue North) and
• segment 2 (Westlake Avenue North to Terry Avenue North).

The Parties shall divide cost responsibility for the separate elements of the South Lake Union Pipelines contract as follows:

Valley Connection: The City shall be responsible for 100 percent of the costs of the Valley Connection element of the contract, including both pipelines and structures. This responsibility specifically includes cost overruns attributable to design defects by the City, to changed conditions, to other negotiated changes, and to expenses for delays attributable solely to work on the Valley Connection element when those delays were neither the responsibility of the contractor nor caused by the County.

South Lake Union Pipeline Segment 1: The County shall be responsible for 83 percent of costs associated with Segment 1 (8^th Avenue North to Westlake Avenue North). The City shall reimburse the County for 17 percent of costs, as costs are determined in Section 4.1, except for those costs attributable to cost overruns attributable to a design defect by the County, delay expenses that are the responsibility of the contractor, and delay expenses caused by the County. The County shall own Segment 1.

South Lake Union Pipeline Segment 2: The County shall be responsible for 41.5 percent and the City for 58.5 percent of the costs associated with Segment 2 (Westlake Avenue North to Terry Avenue North), as costs are determined in Sections 4.1. The County shall own Segment 2.

Remainder of South Lake Union Pipelines Contract: The County shall be responsible for 83 percent and the City for 17 percent of costs associated with the remainder of the South Lake Union Pipelines Contract, as those costs are determined by Sections 4.1 and 4.2. The County shall own and be solely responsible for all other facilities in the South Lake Union Pipelines Contract as generally described in the Denny / Lake Union CSO Control Facilities Plan Phase 2 and 3-4.

5. Project Elements Excluded from Cost-Sharing

5.1 City’s CSO #175

The City shall own, be solely responsible for the facilities and pay all costs associated with CSO #175 (Lakeview Boulevard), which will be designed and constructed solely by the City.

5.2 County’s Chlorination/Dechlorination Facilities

The chlorination/dechlorination facilities, an element of the Elliott West CSO Control Facility and Elliott West Pipelines, include storage tanks, injection facilities and associated piping. The costs of these facilities shall be borne entirely by the County. As part of the County’s preparation of the engineer’s estimate for the Elliott West CSO Control Facility and Elliott West Pipelines contract, these chlorination/dechlorination costs shall be separately determined. The County shall require the contractor, after award of the contract, to itemize these chlorination/dechlorination costs on the schedule of values. These costs shall then be excluded from the Elliott West CSO Control Facility amd Elliott West Pipelines costs before calculation of the City’s cost-share for the Elliott West CSO Control Facility and Elliott West Pipelines portion of the Project.

5.3 Commissioning and Decommissioning of Valley Connection

The County shall include the commissioning of the Valley Connection in bid documents for the Elliott West CSO Control Facility contract of the Project. The County shall perform the commissioning of the Valley Connection element of Phase 2 of the Project at the end of the Project, in accordance with the drawings and specifications from the City, at City manhole 3 at Fairview and Valley streets. The County shall also include the decommissioning of City CSO #125 as shown on Elliott West CSO Control Facility drawing G1204 in the DCLU permit submittal, December 1999, in bid documents for the Elliott West CSO Control Facility contract of the Project. These commissioning and decommissioning costs shall be paid by the County and entirely reimbursed by the City. As part of the County’s preparation of the engineer’s estimate for the Elliott West CSO Control Facility contract, these commissioning and decommissioning costs shall be itemized. The County shall require that these costs be itemized on the contractor’s schedule of values, and they will be invoiced to the City after the commissioning and decommissioning work is completed.

5.4 King County Arts Program

The County is providing art as part of Phase 3-4 of the Project. Costs of the art program are allocated 100 percent to the County and are not subject to City reimbursement.

The County was awarded grant no. XP990384-01-0 by the U.S. Environmental Protection Agency in 1995. The City is a subgrantee. Reimbursement of costs of the Project from the EPA Grant is calculated at 55 percent of eligible Project costs up to the grant limit of $35 million.

6.1 Grant Conditions:

The City will take any actions reasonably requested by the County as may be necessary for the County to comply with the EPA Grant agreement, along with associated requirements.

Use of the grant is as follows:

• Expenses incurred by the City for Phase 1 of the Project were submitted to the EPA (via King County) and were reimbursed in the amount of approximately $5 million. This phase of the project is now complete, leaving approximately $30 million of the grant potentially available to pay costs of the Project.
• The County shall submit the costs of the contracts for the Mercer Street Tunnel, Elliott West CSO Control Facility, and South Lake Union Pipelines contracts to the EPA for reimbursement. The EPA will reimburse the County’s payments to contractors in accordance with the grant requirements until the $35 million grant limit is reached. The amount of the EPA Grant applied to the City’s share of the Project shall be applied as a credit toward the City’s cost-sharing responsibility under this Agreement.
• Final allocation of the grant funds will be made at Project completion.

6.2 Allocation of EPA Grant to the Project

Proceeds of the EPA Grant received by the County for the City’s Lake Union CSO Control project and the County’s Denny Way CSO Control project shall be applied to each of the two projects at proportions equal to the percentage of the total cost of the projects represented by the base contribution of each of the Parties, less any other grants received by either party for either of the projects. Total costs of each of the projects, for this purpose only, shall consist of the elements described as part of the Parties’ cost-sharing arrangement in Section 4, as well as the costs of the City’s CSO #175 and the Commissioning and Decommissioning of Valley Connection, which are excluded from the Parties’ cost-sharing arrangement except for the EPA Grant purposes stated in this paragraph.

Within 90 days of completion of the projects, defined as release of the contractor’s retention by the City for its project and the County for its project, whichever is later, each of the Parties will determine its project cost as defined in this section of the Agreement. Within 45 days from that determination, the City or the County shall make such payment to the other as may be necessary to accomplish the grant allocation described in this section and the cost-share arrangement described in Section 4. The grant allocation method described in this section and the cost share arrangement described in Section 4 shall be used for all final determinations of the financial obligations of the Parties to each other under this Agreement.

6.3 Records:

The County and City shall account for and maintain such records of expenditures as are necessary to fulfill the requirements of the County’s obligations under the EPA Grant.

7. Financial Relations

7.1 Quarterly Billing and Expense Submittal

The City shall reimburse the County quarterly for its share of the costs as described in Section 4 upon receipt of a properly documented invoice. The County shall invoice the City quarterly, and the City shall make its reimbursement payment within 45 days from the date of invoice.

7.2 Final Determination of Obligations

The grant allocation method described in Section 6.2 and the cost-share arrangement described in Section 4 shall be used for all final determinations of the financial obligations of the Parties to each other under this Agreement.

8. Government Approvals

The County has obtained or shall obtain all permits and authorizations required by any level of government to allow construction of the Project in accordance with the plans and specifications. The City, if so requested by the County, shall be a co-applicant with the County for permits required by City regulatory ordinances. However, nothing in this Agreement is intended, or may be construed, to require that the City exercise its discretionary authority under its regulatory ordinances to further the Project.

9. Basic Agreement Unchanged

The Parties intending that the Basic Agreement shall not be affected or modified by this Agreement, the City and the County shall comply with all provisions of the Basic Agreement without qualification or condition by reason of any provision or interpretation of this Agreement.

10. Indemnification in General

For matters not concerning Valley Connection: (a) The County shall indemnify and hold the City harmless from any and all losses, claims, actions, damages and expenses caused by or arising out of the acts or omissions of the County under this Agreement. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against the City, the County, upon notice of the commencement of the suit, shall defend the suit at its sole cost and expense; and if final judgment be adverse to the City, or the City and the County jointly, the County shall promptly satisfy the judgment. This indemnity provision is valid and enforceable only to the extent of the County’s sole or concurrent negligence. Nothing contained in this paragraph shall be construed as requiring the County to indemnify the City against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the City, its employees, officers or agents, or from more than the County’s share of the concurrent negligence of the City and the County. (b) The City shall indemnify and hold the County harmless from any and all losses, claims, actions, damages and expenses caused by or arising out of the acts or omissions of the City under this Agreement. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against the County, the City, upon notice of the commencement of the suit, shall defend the suit at its sole cost and expense; and if final judgment be adverse to the County, or the County and the City jointly, the City shall promptly satisfy the judgment. This indemnity provision is valid and enforceable only to the extent of the City’s sole or concurrent negligence. Nothing contained in this paragraph shall be construed as requiring the City to indemnify the County against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the County, its employees, officers or agents, or from more than the City’s share of the concurrent negligence of the County and the City. (c) Solely for the purpose of carrying out each Party’s indemnity obligations under this paragraph, and not for the benefit of the indemnifying Party’s employees or any third parties, the indemnifying Party expressly waives any immunity that may be granted to it under the Washington State Industrial Insurance Act, Title 51 RCW. These indemnity obligations have been explicitly and mutually negotiated by the Parties and shall survive the termination or expiration of this Agreement.

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County City

11. Authorized Representatives

For purposes of this Agreement, the Parties’ authorized representatives are

Diana Gale, Director

Seattle Public Utilities

Dexter Horton Building, Ste 1010

710 Second Avenue

Seattle, Washington 98104

Pam Bissonette, Director

King County Department of Natural Resources

201 S. Jackson Street, MS KSC-NR-0700

Seattle, Washington 98104

All notices, approvals, proposed change orders, design submittals, invoices and other material required under this Agreement shall be in writing and shall be delivered, faxed or mailed first-class with postage prepaid to the Parties’ authorized representatives at the addresses above or to such other respective addresses as either Party may, from time to time, designate in writing.

12. Dispute Resolution

If disputes or claims arise over the interpretation, administration or effect of this Agreement, either Party may first refer the matter to a committee composed of the City’s and the County’s project managers for the Project. If the two project managers are unable to resolve the dispute or claim, they shall refer the matter to a committee composed of the City’s Director of Engineering Services Branch, Seattle Public Utilities, and the Director of the Wastewater Treatment Division, King County Department of Natural Resources. If the two directors are unable to resolve the dispute or claim, they shall refer the matter to a committee composed of the City’s Director of Seattle Public Utilities and the County’s Director of the King County Department of Natural Resources for a further attempt at resolution. The timely consideration of the dispute or claim by these committees, in an effort to reach a solution that reflects the best public interest, shall be a prerequisite to any legal action by either Party.

13. No Waiver

No delay or failure to exercise any right, power or remedy accruing to one Party or any breach or default by the other Party shall impair any such right, power or remedy, nor be construed as a waiver of any such breach or default.

14. No Third Party Beneficiaries

In promising performance to one another under this Agreement, the Parties intend to create binding legal obligations to and rights of enforcement in one another. The Parties do not intend to create any obligation or liability or promise any performance to any third party.

No term or provision of this Agreement shall be for the benefit of any person, firm, organization or corporation not a Party to the Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under the Agreement.

15. Applicable Law

This Agreement shall be governed by the laws of the State of Washington. Each Party shall cause all work for which it is responsible under this Agreement to be carried out in accordance with all applicable laws and regulations, including without limitation public works laws and laws prohibiting discrimination based on sex, sexual orientation, race, color, national origin, ancestry, creed, religion, political ideology, age, marital status, or the presence of any sensory, mental or physical handicap. Failure to comply with the foregoing shall be a material breach of this Agreement.

16. Jurisdiction and Venue

If any action is brought under this Agreement, jurisdiction shall be in the King County Superior Court for the State of Washington, and venue shall lie exclusively in Seattle, Washington.

17. Entire Agreement: Modification

This Agreement (including recitals and attached Exhibits) constitutes the entire agreement between the Parties. No representations, whether written or otherwise, between the Parties not contained or incorporated herein by reference shall be of any force or effect. This Agreement may be modified or amended only by written agreement of the Parties.

18. Severability

If any provision of this Agreement is held by a court of competent jurisdiction, all appeals having been exhausted or all appeal periods having run, to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

19. Interpretation

The provisions of this Agreement shall be construed as a whole according to their common meaning and consistent with the provisions contained in the Agreement in order to achieve the objectives and purposes of this Agreement. Each Party and its counsel has reviewed and revised this Agreement and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement, and that each party should be deemed to have had equal drafting responsibility.

This agreement shall terminate upon fulfillment of the obligations of the parties to each other and fulfillment of the obligations contained in any grant agreements for the projects or portions thereof.

21. Time Is of the Essence

For the purposes of this Agreement and the obligations set out in the Agreement, time is of the essence.

22. Counterparts

This Agreement may be executed in counterparts, and each counterpart shall be deemed to be an original instrument, but all counterparts together shall constitute only one agreement.

23. Authority

The persons signing below represent that they have the requisite authority to bind the Party on whose behalf they sign.

__________________________ __________________________

Diana Gale, Director Pam Bissonette, Director

Seattle Public Utilities King County Department of

Natural Resources

Date: _____________________ Date: ______________________