Appendix K - Dredge Material Placement Agreemnt.pdf

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File No. 2020-0096 1 of 11 Rev. 06/22/2017; 6/23/2020 USCG

DREDGED MATERIAL PLACEMENT AGREEMENT

FILE NO.: 2020-0096

PORT AUTHORITY: PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY,

TEXAS, a political subdivision of the State of Texas

PORT AUTHORITY’S 111 East Loop North, Houston, Texas 77029 ADDRESS: Attn: Channel Development Director

COMPANY: UNITED STATES COAST GUARD

COMPANY’S ADDRESS: 15608 S.W. 117th Ave., Miami, FL 33177

COMPANY

EMERGENCY

CONTACT/TEL.: Enrique San / 305-278-6728

DREDGED MATERIAL: 1,439 cubic yards

ORIGIN OF

DREDGED MATERIAL: U.S. Coast Guard Station Houston adjacent to the Houston Ship

Channel, approximately 0.56 miles downstream of the 610 Bridge

PLACEMENT AREA: Rosa Allen

USACE: The United States Army Corps of Engineers acting on behalf of the

United States Government

PORT AUTHORITY

PERMIT NO.: 2020-0096

USACE PERMIT NO.: SWG-2020-00071 (corrects and replaces SWG-2004-00909)

TERM: Beginning on the date this Agreement is fully executed and ending at completion of Dredging Operations

APPLICATION FEE: Six Hundred Seventy-Five and No/100 Dollars ($675.00)

MATERIAL

PLACEMENT FEE: Four and 12/100 Dollars ($4.12) per cubic yard of Dredged Material deposited into the Placement Area $4.12 x 1,439 cubic yards = $5,929

File No. 2020-0096

DREDGING

OPERATIONS: All matters relating to the dredging, handling, testing or placement of the Dredged Material and any repairs or adjustments to the Placement Area performed by or on behalf of Company

EXHIBITS: “A:” Drawing depicting Placement Area

This Dredged Material Placement Agreement (the “Agreement”) is entered as of date last set forth below between the Port Authority and the Company. Capitalized terms not otherwise defined herein shall have the meanings set forth above.

1. Permission to Use Dredged Material Placement Area.

a. The Port Authority hereby approves Company’s request and grants Company permission to deposit the Dredged Material on the Placement Area, provided that Company:

i. Has paid the Application Fee to the Port Authority at the time of application;

ii. Pays the Material Placement Fee to the Port Authority, as provided in section 6;

iii. Completes the sediment sampling and analysis, as provided in section 2;

iv. Receives final written approval of the Dredging Operations from Port Authority, as provided in section 2; and

v. Complies with all other provisions of this Agreement.

b. This Agreement is made subject to the Port Authority Permit No. referenced above, all agreements between Port Authority and the United States government, the United States Department of the Army, or the United States Army Corps of Engineers affecting the Placement Area and subject to the superior rights of Port Authority and the USACE to use and access the Placement Area.

c. Company understands and agrees that the permission given hereby is for nonexclusive use of the Placement Area and that similar permission may be given to others for placement of dredged material. Company shall not have and there is not given hereby an exclusive right of use and/or occupancy of any portion of the Placement Area. Company shall have the right to use a reasonably necessary portion of the Placement Area for the Dredging Operations, and shall have the right of reasonable temporary ingress and egress across the Placement Area (and immediately adjacent Port Authority property if required) as needed in connection with the Dredging Operations;

provided however that no dredge pipeline easement or right-of-way is provided by the Port Authority to Company by this Agreement.

2. Performance of Dredging Operations.

a. Company shall properly perform the Dredging Operations in a safe and workmanlike manner, in accordance with the provisions of this Agreement and in compliance with all applicable laws and regulations.

b. Company shall notify Port Authority in writing of the date the Dredging Operations are proposed to begin, at least one week prior to such date. Company shall not begin the Dredging Operations before this Agreement has been fully executed.

c. Prior to beginning Dredging Operations, Company shall provide Port Authority the following for review and approval:

i. Scale drawings depicting the area, depth and volume to be dredged, including adjoining upland uses, pipelines, outfalls, and drainages.

ii. Results of sediment sampling and analysis, which the Company shall cause to be conducted as set forth in the USACE’s Sediment Sampling and Analysis Protocol. The sampling and analysis shall be performed by a laboratory approved by Port Authority, and the analytical results, including documentation of the chain of custody, shall promptly be furnished by the laboratory to Port Authority with copies of the test results.

iii. After receiving approval from USACE of the sediment sampling and analysis results, Company will provide a dredge and placement plan and procedure, including the location of the Discharge Corridor (as defined herein). The term “Discharge Corridor” means the location at the Placement Area at which dredge pipe and dredged material should be placed, as designated by the Port Authority.

d. The Port Authority reserves the right to (i) condition its approval of the Dredging Operations on when, and under what conditions, the Dredging Operations may be performed, including the location of any Discharge Corridor; and (ii) suspend or delay the Dredging Operations to allow Port Authority or USACE to deposit dredged material into the Placement Area, or as otherwise required to protect the Port Authority’s interests.

e. Company shall provide a Class "A" Automatic Identification System (AIS), as set forth in 33 CFR 164.46, as amended, for all dredges used to perform Dredging Operations hereunder.

f. The Dredging Operations, and the use, construction and maintenance of levees, dikes, or drains which are necessary in connection with the Dredging Operations, shall conform to the directions of Port Authority, the Texas Commission on Environmental Quality, and the USACE.

Company shall promptly provide Port Authority with copies of all related correspondence to or from such agencies.

g. Company further agrees to take all actions necessary to prevent any release of any Dredged Materials from the dredge pipeline and its appurtenances, or otherwise, outside of the Placement Area. In the event such release does occur, regardless of the cause, whether or not the property of any person, firm or corporation is damaged or destroyed thereby, or any civil penalties or fines are incurred, Company shall notify Port Authority in writing within twenty-four (24) hours of such release stating, to the best of Company’s then current knowledge, the location and duration of the release, and the nature of the substance released.

3. Condition of Placement Area.

a. The Placement Area is made available to Company “As Is,” with no warranty or representation, either express or implied, that the Placement Area is in a condition to receive or accept the Dredged Material.

b. Company agrees that it shall ascertain for itself the condition of the Placement Area, including its levees, spillways, and any Discharge Corridor. Company shall make such adjustments or repairs to these items as are necessary to accommodate the Dredging Operations, provided that any such adjustments or repairs shall be first approved by the Port Authority.

c. Subject to the availability of funds, Company agrees to repair and/or remediate at its own expense, any damage, injury, or unsafe condition, caused by or resulting from the Dredging Operations, subject to Section 3(d) below. Company shall notify Port Authority of such damage, injury or condition within twenty-four (24) hours of its occurrence. Upon written notice and reasonable opportunity to initiate a cure plan, if Company fails to begin performance to complete the necessary repairs or remediation work, Port Authority may (at its option) conduct such work and Company, subject to the availability of funds, agrees to reimburse Port Authority for its reasonable and actual cost and expense in conducting such work.

d. To the extent permitted by federal law, Port Authority shall hold the Company solely responsible, financially and otherwise, for any cleanup, repair, or similar action required by any governmental or quasi-governmental agency as a result of any release directly related to the storage, transport, generation, abandonment, or disposal of Hazardous Materials (as defined below) or other materials subject to environmental regulation, by the Company and its employees, agents, or contractors. Company shall keep Port Authority apprised of all efforts to perform such cleanup or repair and shall provide Port Authority with copies of all correspondence, reports, and other documents pertaining to the environmental violation and the resulting cleanup and/or repair within forty-eight (48) hours of Company’s preparation or receipt of such documentation. In the event that Port Authority gives notice to Company to take such action and Company fails to initiate such action within a reasonable amount of time specified by Port Authority, Port Authority shall have the right, but not the obligation, to perform such necessary action at the sole expense of Company and to the extent permitted by federal law and subject to availability of funds, recover all reasonable costs and expenses incurred as a result of such performance by delivering an invoice to Company. Any performance by Port Authority pursuant to this section shall not constitute a waiver of Company’s failure to take any required action. The term “Hazardous Materials” shall mean any flammables, explosives, radioactive materials, hazardous waste, petroleum products or other hydrocarbons, chemicals, toxic substances or related materials, including all substances regulated under or defined as “hazardous substances,” “hazardous materials,” “toxic substances” or “solid wastes” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801, et seq.; the Resources Conservation and Recovery Act, 42 U.S.C. Sec. 6901, et seq. (“RCRA”); the Toxic Substance Control Act, as amended, 15 U.S.C.

Sec. 2601 et seq.; the Texas Solid Waste Disposal Act, Tex. Health and Safety Code Ch. 361, or any other law.

4. Insurance.

a. Prior to the starting date of the Dredging Operations, Company, or its employees, agents, or contractors, shall provide proof of coverage to the Port Authority’s designated contract administrator (DCA), who shall obtain approval by the Risk Management Department. Subsequent proof of insurance/renewal documentation shall be provided to the DCA prior to the expiration date of the coverage. Only the Port Authority Director of Risk Management has authority to waive or modify any requirement contained in this section 4.

b. Company’s financial integrity is of interest to the Port Authority. Company may maintain reasonable deductibles or self-insured retentions in such amounts as approved by the Port Authority. Company shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension hereof, at Company’s sole expense, insurance coverage as indicated below. Coverage should be written on an occurrence basis by companies authorized to do business in the State of Texas and rated “A-, VII” or better by A.M. Best Company and/or be placed with Lloyds Underwriters or another financially sound insurance carrier acceptable to Port Authority Risk Management. Requests to self-insure specific lines of coverage are subject to approval of the Port Authority.

Type Amount

i. Workers’ Compensation Statutory

Employers’ Liability $1Million /$1 Million /$1 Million Longshore & Harbor Workers’ Statutory Compensation (if exposure exists)

1. All employees, leased or co-employees, independent contractors, and employees of subcontractors and vendors, performing work for the Company, or entering upon the Port Authority’s premises, must be covered by Workers’ Compensation.

2. If Company is a sole proprietorship without employees and which will not be using any subcontractor(s) in the performance of the Contract Work, it may request a waiver of required workers’ compensation insurance: The Company, as sole proprietor, agrees to indemnify and hold harmless Port Authority.

ii. Commercial General Liability (CGL) $1 Million per occurrence

$2 Million Aggregate

1. Shall include Premises Operations, Independent Contractors, Products and

Completed Operations, Personal Injury, Bodily Injury, Broad Form Contractual Liability and Property Damage, Explosion, Collapse, and Underground Hazards covering the indemnification provisions of our contract.

2. Must contain a “severability of interests” provision, and cover cross-suits between insureds.

iii. Business Automobile Liability $1 Million per accident (Any auto)

iv. Environmental Impairment Liability $5 Million per occurrence

1. All environmental policies will include tail coverage for three years after expiration of the license period.

v. Umbrella Liability $5 Million per occurrence

c. The Port Authority shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by the Port Authority.

d. All policies, except for workers’ compensation and Environmental Impairment Liability, shall designate the following as an “Additional Insured” either by an “Automatic Additional Insured” or a specific endorsement: “Port Authority, its Commissioners, officers, employees, agents, and legal representatives.”

e. All policies shall provide a waiver of subrogation in favor of the Port Authority.

f. In addition to any other remedies the Port Authority may have upon Company’s failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein, and/or withhold any payment(s) which become due, to Company hereunder until Company demonstrates compliance with Port Authority requirements.

g. Nothing herein contained shall be construed as limiting in any way the extent to which Company may be held responsible for payments of damages to persons or property resulting from Company’s or its subcontractors’ performance of the work covered under this Agreement.

5. Indemnity and Release.

a. Company and the Port Authority acknowledge that they are each a governmental entity, and are subject to, and comply with the applicable Federal and State of Texas laws, respectively, and the remedies authorized therein regarding claims or causes of action that may be asserted by third parties for accident, injury or death.

b. Company’s liability is subject to the availability of appropriations for such payment, and nothing contained in this Agreement may be considered as implying that Congress will at a later date appropriate funds sufficient to meet any deficiencies. The provisions of this clause are without prejudice to any rights the Port Authority may have to make a claim under applicable laws for any damages other than those provided for herein.

c. Company shall conduct its activities under this Agreement in a manner that such activities do not unreasonably interfere with Port Authority operations, and the Company shall exercise reasonable precautions to prevent damage to the property, pipelines, railroad structure or any other structures in the area of Dredging Operations or the Placement Area belonging to the Port Authority and third parties.

d. Company agrees that Port Authority shall not be responsible for injuries to persons or damages to the area of Dredging Operations or the Placement Area when such injury or damages are caused by or result from the Company’s use of the property under the terms of this Agreement and are not due to the active negligence of the Port Authority.

e. If either (i) an agreement between the Port Authority and Company (or their respective insurers) is reached, or (ii) a final, non-appealable judgment or order is issued by a judicial, regulatory, or arbitral body or authority with proper jurisdiction over the subject matter in question is rendered holding that Port Authority Indemnitees were liable for any Liabilities, the indemnity obligations of Company under section 5(a) above and the release obligations of Company under section 5(c) below shall be limited to the remaining percentage(s) of the Liabilities not attributable solely to the Port Authority Indemnitees’ negligence.

f. Notwithstanding anything to the contrary contained herein, Company hereby further accepts all risks, known or unknown, of performing the Dredging Operations and entering or utilizing the Placement Area.

6. Fee Calculation and Payment.

a. The estimated Material Placement Fee shall be based on Company’s estimate set forth in its application for this Agreement. Seventy-five percent (75%) of such estimated Material Placement Fee shall be paid by Company upon its execution of this Agreement.

b. Within thirty (30) days upon completion of the Dredging Operations, Company shall provide to the Port Authority cross sections made from soundings at the Dredging Operation site, taken before and after Dredging Operations (“Cross Sections”), and a copy of the invoice from the dredging company performing the work for Company, setting forth the total amount of Dredged Material removed.

i. Such Cross Sections made from soundings taken before and after the Dredging Operations shall be sent electronically to the Port Authority in ASCII Text File (x,y,z) format, to permit verification of the dredged quantities placed in the Placement Area.

ii. Soundings for the Cross Sections shall be taken along lines which are transverse to the dredging limits, and not more than 100 feet apart.

c. The final Material Placement Fee shall be calculated by the Port Authority, based on its determination, in its sole discretion, of the volume of material deposited on the Placement Area, using the “average-end-area” method, and the quantities indicated on the dredging contractor’s invoice.

d. The Port Authority shall invoice Company for the balance of the final Material Placement Fee following its calculation of such amount. Such amount shall be due and payable thirty (30) days after the Port Authority provides Company with a written invoice for such amount.

e. All payments under this Agreement shall be mailed to the lockbox of the Port Authority, as set out in the Instructions and Checklist for Agreements and Permits.

7. Transfers. Company shall not transfer or assign this Agreement or any interest therein in whole or in part without the prior written consent of the Port Authority; and in event of such consent, any transfer or assignment shall be made only on condition that such transferee, or assignee shall in writing assume and agree to be bound by the terms and provisions of this Agreement. Any transfer or assignment to an affiliate, subsidiary or successor does not release the original or any prior party from any obligation to the Port Authority as originally set out herein, and in the event of a transfer or assignment to an affiliate, subsidiary or successor, the Port Authority may enforce this Agreement against the assignor, the assignee or both.

8. Termination.

a. This Agreement and the rights herein granted may be terminated by the Port Authority at any time, without recourse to Company.

b. At the end of the Dredging Operations, whether due to project completion or to termination by either party to this Agreement or by the USACE, the Material Placement Fees will be adjusted, based on the quantity of material actually placed by Company, in accordance with the process set out in Section 6 herein.

9. Miscellaneous.

a. Time of Essence. Time is of the essence with respect to each date or time specified in this Agreement by which an event is to occur.

b. Public Disclosure. The Port Authority is a governmental authority subject to the requirements of the Texas Open Meetings Act and the Texas Public Information Act (Texas Government Code Chapters 551 and 552). Company agrees that disclosure of information or materials related to this Agreement by Port Authority as required by the Texas Open Meetings Act, Texas Public Information Act, or any other law, shall not expose Port Authority (or any party acting by, through or under Port Authority) to any claim, liability, or action by Company.

c. Entire Agreement, Amendment and Binding Effect. This Agreement constitutes the entire agreement between Port Authority and Company relating to the subject matter hereof. Except as provided above with respect to termination by the Port Authority, this Agreement may only be amended by a written document duly executed by Port Authority and Company, and any alleged amendment which is not so documented shall not be effective as to either party. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors and assigns; provided, however, that this subsection shall not negate, diminish, or alter the restrictions on transfers applicable to Company set forth elsewhere herein.

d. Severability. If any provision of this Agreement or its application to any person or circumstance shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining portion of such provision, or any other provisions hereof, and each such provision of this Agreement shall be deemed to be severable from all other provisions hereof, provided that the overall intent of this Agreement is not vitiated by such severability.

e. Construction. Unless the context of this Agreement clearly requires otherwise, (i) pronouns, wherever used, and of whatever gender, shall include natural persons and corporations and associations of every kind and character, and (ii) the singular shall include the plural wherever and as often as may be appropriate. Headings in this Agreement are for convenience of reference and shall not affect the construction or interpretation of this Agreement.

f. Interest on Company’s Obligations. Any amount due from Company to the Port Authority which is not paid when due shall bear interest at the maximum prejudgment interest rate allowed by law from the date payment is due until paid, but the payment of interest shall not excuse or cure the default in payment.

g. Authority. The person executing this Agreement on behalf of Company warrants and represents to the Port Authority that: (i) Company is a duly organized and existing legal entity, in good standing in the State of Texas; (ii) Company has full right and authority to execute, deliver, and perform this Agreement; (iii) the person executing this Agreement on behalf of Company was authorized to do so; and (iv) upon request of Port Authority, such person shall deliver to the Port Authority satisfactory evidence of his or her authority to execute this Agreement on behalf of Company.

h. Incorporation by Reference. Exhibit “A” is incorporated herein for any and all purposes.

i. Interpretation. Port Authority and Company and their respective legal counsel have reviewed and have participated in the preparation of this Agreement. Accordingly, no presumption will apply in favor of the Port Authority or Company in the interpretation of this Agreement or in the resolution of the ambiguity of any provision in the Agreement.

j. Multiple Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute but one instrument.

k. Venue and Governing Law. Venue of any dispute or lawsuit between the Port Authority and Company shall be in either Texas State Judicial District Court in Harris County, Texas or the United States District Court for the Southern District of Texas, Houston Division. This Agreement shall be construed, and the rights and obligations of the parties hereunder shall be determined in accordance with the laws of the State of Texas or, if applicable, the federal laws of the United

States, excluding any principle of conflict of laws that would require application of the laws of any other jurisdiction.

l. Delegation. By action evidenced in the minutes of their meeting of February 24, 1993, the Port Commission as the governing body of the Port Authority delegated to the Executive Director authority to execute dredged material placement agreements for maintenance dredging at private facilities in the usual form therefor and at the fees for such use established from time to time by the Port Commission. Additionally, Port Commission approval of the Port Authority Permit referenced above further authorizes actions reasonable or necessary to give effect to that Permit.

In witness whereof, the parties have executed this Agreement as of the date last set forth below.

PORT OF HOUSTON AUTHORITY

By Garry McMahan

Director, Channel Operations

Date _______________________________

APPROVED AS TO FORM:

Port Authority Counsel

UNITED STATES COAST GUARD

By

Name J.A. Lentine, CDR

Title Commanding Officer

Date ________________________________

JALentine

Text Box

14 July 2020

Exhibit “A”

PLACEMENT AREA

31660003164000316200031600003158000

31660003164000316200031600003158000

IH-PA 2

Discharge Area - REIN-19-037

0 500 1,000250 Feet

Coordinate System: NAD 1983 StatePlane Texas South Central FIPS 4204 Feet

Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community±

Sims Bayou

Waypoints

Discharge Area

Pipeline Route

APPENDIX A

m3rdxmig

X=3163570 Y=13820715

X=3163947 Y=13820543

X=3163709 Y=13820207

X=3163310 Y=13820381

X=3163466 Y=13820543

ROSA ALLEN PA

M3PEXSEW

APPENDIX E- REIN-20-012

Disposal Area Coordinates

2020-0096_USCG_DMPA.pdf

2020-0096_USCG_DMPA[4].pdf

Updated_Appendix E -Disposal Area Coordinates.pdf

2020-07-14T17:41:09-0400

LENTINE.JOHNDAVID.A.1179108212

Appendix K

Dredged Material Placement Agreement