Appendix M - Temporary Access Agreement.pdf

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Appendix M

Temporary Access Agreement

TEMPORARY ACCESS AGREEMENT

This TEMPORARY ACCESS AGREEMENT, dated the 15th day of March, 2021 (this “Agreement”), is by and between TPC GROUP LLC (“Owner”), and USCG, (“Licensee” and, together with Owner, the “Parties”).

RECITALS

WHEREAS, Owner is the present owner of that certain property located at 8600 Park Place Houston, TX 77017-2513, HCAD Parcel 040-199-000-0011 (“Real Estate”); and

WHEREAS, Licensee desires access to a limited portion of the Real Estate, depicted and attached hereto as Exhibit A, to install and operate a temporary pipeline on the surface of the ground for the transportation of dredge spoil material over and across the Real Estate (each entry to the Real Estate on the part of Licensee is referred to in this Agreement as an “Access Event”); and

WHEREAS, Owner, subject to the terms and conditions contained herein, consents to Licensee, its employees, contractors, subcontractors, and agents entering the Real Estate solely for the purpose of conducting these Access Events.

NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties, intending to be legally bound, hereby agree as follows:

1. This Agreement shall be effective on the date first above written and shall remain in full force and effect until October 18, 2021, unless otherwise agreed by both Parties.

2. Owner hereby grants a license to Licensee and its agents, employees, contractors, and subcontractors assigned to the Access Events (collectively, the “Licensee Group”), upon not less than five (5) business days’ prior written notice to Owner, to enter upon the Real Estate solely for the purpose of conducting the Access Events. Each Access Event and the scope thereof shall be coordinated with Owner. Each individual Access Event, however, is subject to the complete discretion and consent of Owner. Owner’s representative for this purpose is Frank Guerrero; Sr. Coordinator, Production HNO; Email:

Frank.Guerrero@tpcgrp.com; Office: 713-740-3014; Mobile: 713-851-0474. The Parties agree that such consent will not constitute and in no way be construed or asserted as approval by Owner of the safety of such Access Event.

3. Licensee shall at all times keep its work areas at the Real Estate in a neat, clean, and safe condition and shall be responsible for continuous clean-up and removal of its trash, debris, waste materials, and scrap and for the disposal thereof off of the Real Estate. Licensee’s activities at the Real Estate shall not impede any foot or vehicular traffic. Licensee shall, upon completion of its activities at the Real Estate, leave and/or restore any of the property and equipment affected thereby to the same condition as existed prior to the initiation of any of Licensee’s activities at the Real Estate.

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4. Licensee shall not suffer or permit any charges, liens, or encumbrances to attach to or affect the Real Estate or any equipment or improvements thereon and shall promptly pay and discharge all charges, liens, and encumbrances arising from any labor or materials rendered or furnished in connection with, or otherwise related to, the activities of any member of the Licensee Group at the Real Estate.

5. If any Access Event permitted under this Agreement involves excavation, subsurface soil investigation, or any other disturbance of the ground surface, with or without the use of mechanized equipment, Licensee shall contact the One Call center for the state in which the Real Estate is located at least three (3) business days in advance of any such disturbance of the ground surface.

6. Licensee shall obtain, maintain, and be in compliance with all federal, state, and local permits and other governmental approvals required in connection with the Access Events. Licensee shall comply with all applicable federal, state, and local laws, including, without limitation, laws pertaining to the health and safety of persons or property, and will comply with all work rules and regulations of Owner applicable at the Real Estate (copies of which shall be provided to Licensee upon request). In addition, Licensee shall utilize all good and reasonable work and safety procedures commonly employed in connection with activities similar to the Access Events so as to prevent injury or damage to persons and/or property.

7. Licensee may maintain reasonable deductibles or self-insured retentions in such amounts as defined herein by Owner. Owner acknowledges that Licensee is a self-insured federal governmental entity.

Notwithstanding, where applicable, Licensee shall ensure each member of the Licensee Group maintains, at such party’s sole cost and expense, at all times during this Agreement, the insurance coverages set forth below with full policy limits applying, but no less than as stated:

(a) Workers’ Compensation Insurance as required by laws and regulations applicable to cover employees of Licensee Group;

(b) Employer’s Liability Insurance protecting Licensee Group against common law liability, in the absence of statutory liability, for employee bodily injury arising out of the master-servant relationship with limits of liability of not less than one million dollars ($1,000,000) per each occurrence, and as otherwise required by applicable law;

(c) Commercial General Liability Insurance, including products/completed operations, with limits of liability of not less than: (i) one million five hundred thousand dollars ($1,500,000) per each occurrence/aggregate for bodily injury; and (b) one million five hundred thousand dollars ($1,500,000) per each occurrence/aggregate for property damage;

(d) Automobile Liability Insurance, including non-owned and hired vehicle coverage, with limits of liability of not less than one million five hundred thousand dollars ($1,500,000) per each occurrence for each bodily injury and property damage;

(e) Excess Liability Insurance over Commercial General Liability and Commercial Automobile Liability Coverage afforded by the primary policies described above, with minimum limits of five million dollars ($5,000,000) in excess of the specified limits;

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(f) so called “All Risk” physical damage insurance, including flood and earthquake, covering loss or damage to Licensee Group’s trade fixtures, machinery equipment, and other personal property located in or about the Real Estate, in an amount not less than one hundred percent (100%) of the full replacement cost thereof from time to time;

(g) Pollution Legal Liability Insurance, including Coverage G: Third-Party Claims for On-Site Bodily Injury, Property Damage or Clean-up Costs - Non-Owned Locations, and Coverage H: Third- Party Claims for Off-Site Bodily Injury, Property Damage or Clean-up Costs - Non-Owned Locations, with limits of liability of not less than five million dollars ($5,000,000) per each occurrence/aggregate;

(h) such other insurance in such amounts as from time to time reasonably may be required by Owner against other insurable hazards that, at the time, are normally insured against in the case of similar premises and improvements similarly situated, due regard being given to the height and type of buildings and improvements on the Real Estate, their construction, use, and occupancy.

Licensee Group shall provide certificates of insurance to Owner upon request. The certificates shall specify amounts, types of coverage, and the insurance criteria listed above. The policies shall be renewed or replaced and maintained by Licensee Group. With respect to Licensee Group’s liability insurance policies, Licensee Group shall name Owner as an additional insured. Each policy of insurance required under this Section 6 as well as any other insurance maintained by Licensee Group in connection with this Agreement, any of the property covered hereby, or any other property or risks in connection herewith, shall contain waiver of subrogation provisions whereby the insurer waives all express and implied rights of subrogation against Owner and its agents, servants, employees, affiliates, successors, and assigns.

Furthermore, all such insurance shall require thirty (30) days’ prior written notice by mail to Owner of any cancellation thereof or change affecting Owner’s or Licensee Group’s coverage thereunder.

Licensee shall protect, defend, hold harmless, and indemnify Owner (including its agents, servants, employees, affiliates, successors, and assigns) from and against any and all expenses, claims, liens, actions, liabilities, attorneys’ fees and court costs, damages, losses, penalties, fines and interest of any kind whatsoever (including but not limited to, claims of liabilities relating to the death of or injury to persons and damage to property) (collectively (“Losses”), actually or allegedly, and directly or indirectly resulting from or connected with any act, omission, neglect, or fault of any member of the Licensee Group while present on the Real Estate or connected to or relating to any activities of any member of the Licensee

Group under this Agreement, EVEN THOUGH CAUSED BY OR ARISING FROM THE ACTIVE

OR PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE, BREACH OF CONTRACT

OR OTHER LEGAL DUTY, OR FAULT OF ANY INDEMNITEE, except to the extent that such

Losses are caused or contributed to by the gross negligence or willful misconduct of Owner (including its agents, servants, employees, successors, and assigns). Notwithstanding the foregoing, any claim or

-4-action to protect, indemnify, or hold the Owner harmless, which involves the United States Coast Guard must be made and determined in accordance with Federal Law, including applicable provisions of the

Anti-deficiency Act, 31 U.S.C. § 1341 et seq. and the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq.

8. Notwithstanding the immediately preceding sentence, Owner provides no warranty regarding the safety of the Real Estate, or the installations, equipment, or improvements located thereon, or access thereto, and Licensee agrees to hold Owner harmless from any liability based upon or arising from any failure to warn of existing conditions at or near the Real Estate, whether or not Owner was aware or should have been aware of such conditions. Notwithstanding anything to the contrary in this Agreement, Licensee’s obligations under this Section shall survive the expiration or earlier termination of this Agreement.

9. This Agreement is intended and shall be construed only as a temporary consent for Licensee’s Access Events to conduct certain activities at the Real Estate and not as a grant of easement or any other interest in the Real Estate and does not create any obligation or right to participate in any other projects. The grant of permission to Licensee to enter the Real Estate under this Agreement is nonexclusive, non-assignable, and may be revoked by Owner at any time without prior notice.

10. Licensee agrees that no member of the Licensee Group shall interfere with or obstruct in any way Owner or Owner’s operations at the Real Estate. The performance of Licensee’s activities hereunder will be at no cost or expense to Owner and it is agreed that all activities of Licensee hereunder will be performed by Licensee or its employees, contractors, subcontractors, or agents, each of which shall be designated to Owner in advance of any Access Event.

11. Nothing in this Agreement may be construed to deny or otherwise limit Owner’s right to refuse entry to, or remove immediately from the Real Estate, any person or equipment that in the sole discretion of Owner

(a) poses a hazard to property or personnel at the Real Estate or (b) interferes with Owner’s operations.

12. The Parties agree that all information and data gathered during any Access Event or otherwise in connection with this Agreement will be maintained in strict and absolute confidence, except upon prior written consent from the non-disclosing Party and except with respect to disclosure (a) to accountants, attorneys, and other representatives of the disclosing Party with a need to know such information or (b) as required to make disclosure in compliance with any applicable law (including rules of securities exchanges) or to comply with this Agreement and its objectives. Notwithstanding the immediately preceding sentence, a Party may not disclose this Agreement, the terms and conditions thereof, or information or data received in connection with this Agreement unless such disclosure is preceded by five

(5) days’ prior written notice to the non-disclosing Party and the non-disclosing Party is given an opportunity to eliminate the need for disclosure, seek a protective order or other remedy (including participation in any proceeding to which the disclosing Party is party), and/or waive compliance with this Section. If disclosure is permitted under this Agreement, the disclosing Party will furnish only such information as it reasonably believes is legally required and will use all commercially reasonable efforts to obtain confidential treatment therefor.

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13. Except as provided otherwise in this Agreement, any notice, request, instruction, or other communication permitted or required to be given under this Agreement must be in writing and delivered personally or sent by United States certified or registered mail, return receipt requested, postage prepaid, confirmed overnight courier service, or by confirmed facsimile (followed by mail or courier delivery in accordance with the foregoing) and addressed as follows:

Licensee: USCG CDR J.A. Lentine Commanding Officer 15608 SW 117TH Ave.

Miami, FL 33177 Phone: 305-278-6770

Owner: TPC GROUP LLC

Michael Bankston Plant Manager, Houston 8600 Park Place Blvd.

Houston, TX 77017 Phone: 713-475-7709

14. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas, so long as they do not conflict with federal law.

15. This Agreement shall not be recorded in the office for Recording of Deeds or in any other place of public record.

16. This Agreement contains the entire Agreement between the Parties as it relates to the Access Events.

Neither this Agreement nor any of the terms hereof may be amended, supplemented, waived or modified except by an instrument in writing duly executed by each of the Parties.

17. This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and permitted assigns. Notwithstanding the immediately preceding sentence, the rights and obligations of Licensee set forth in this Agreement may not be assigned or transferred by Licensee to any other person or entity.

18. Neither failure nor delay by Owner to exercise any right or remedy provided herein shall operate as a waiver of the right to exercise such rights or remedies for future occurrences, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

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19. The unenforceability, invalidity, or illegality of any provision of this Agreement will not render the other provisions unenforceable, invalid, or illegal.

20. Licensee represents and warrants that (a) the execution and delivery of this Agreement by Licensee and the performance by Licensee of all of its agreements and obligations under this Agreement (i) are within the organizational power and authority of Licensee and (ii) have been duly authorized by all necessary organizational action on the part of Licensee, (b) this Agreement has been duly executed and delivered by Licensee, (c) none of the execution, delivery, or performance of this Agreement will cause Licensee to be in breach of its organizational documents or any agreement to which it is a party, and (de) this Agreement constitutes the legal, valid, and binding obligation of Licensee and is enforceable in accordance with its terms.

21. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, this Temporary Access Agreement has been duly executed and delivered by each of the Parties as of the date first above written.

LICENSEE:

USCG

By: ______________________________

Name: ________________________________________

Title: __________________________

OWNER:

TPC GROUP LLC

By: _______________________________

Name: _____________________________

Title: ______________________________

Richard Razabdouski

SILC Real Property Warranted Lead CEU-Miami

2021-04-22T09:12:21-0400

RAZABDOUSKI.RICHARD.ALLEN.1204535821

2021-05-06T08:53:09-0500 courtney ruth