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Ordinance No. 14,324ORDINANCE NO. 14,324 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A DREDGE MATERIAL PLACEMENT AGREEMENT WITH PORT OF HOUSTON AUTHORITY (PHA) FOR THE BAYLAND MARINA DREDGING PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED FOUR HUNDRED NINETY-FIVE THOUSAND SEVEN HUNDRED FORTY-SEVEN AND NOI100 DOLLARS ($495,747.00); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************************************************* BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Dredge Material Placement Agreement with Port of Houston Authority (PHA) for the Bayland Marina Dredging project. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment in an amount not to exceed FOUR HUNDRED NINETY-FIVE THOUSAND SEVEN HUNDRED FORTY-SEVEN AND N0I1O0 DOLLARS ($495,747.00) for payment of dredging disposal fees in accordance with the agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by FIFTY THOUSAND AND NOI1O0 DOLLARS ($50,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25%). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the aff ve vot;CAPETILLO, City Co cil of the City of Baytown this the 13'�' day of February, 2020. N May r ATT T: 6AY7'0W'V L ICIA BRYSCH, Cilytlerk v t= N APPROVED AS TO FORM: IPA • '9T ''•....•• -�.Q' FpF�E NACIO RAMIREZ, SR. ty Attorney 11COBFSOITega1\KarenlFi1es\City CouncihOrdinances12020Tebruary 131DredgeMaterialPlacementAgreement.doc Exhibit "A" DREDGED MATERIAL PLACEMENT AGREEMENT FILE NO.: 2018-0214 PORT AUTHORITY: PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, TEXAS, a political subdivision of the State of Texas PORT AUTHORITY'S I I I East Loop North, Houston, Texas 77029 ADDRESS: Attn: Channel Development Director COMPANY: CITY OF BAYTOWN COMPANY'S ADDRESS: 2401 Market Street, Baytown, TX 77520 COMPANY EMERGENCY CONTACT/TEL.: Scott Johnson, Director Parks and Recreation i 281-420-6599 DREDGED MATERIAL: 114,600 cubic yards of maintenance dredged material ORIGIN OF DREDGED MATERIAL: Company's Bayland Marina basin adjacent to Black Duck Bay, approach to channel, and mouth of Goose Creek Channel PLACEMENT AREA: Spilman Island USACE: The United States Army Corps of Engineers acting on behalf of the United States Government USACE PERMIT NO.: SWG-1993-01969 TERM: Beginning on the date this Agreement is fully executed and ending at completion of Dredging Operations PORT AUTHORITY APPLICATION FEE: Six Hundred Seventy -Five and No/ 100 Dollars ($675.00) USACE PROCESSING FEE: Seven Thousand Three Hundred and No./ 100 Dollars ($7,300) PORT AUTHORITY MANAGEMENT FEE: Actual. To be paid in accordance with section 6 File No. 2018-0214 1 of 13 Rev. 7/19/19; 217b (LSF not PCA) D. Terminal facilities constructed in accordance with federal Section 10/404 permits including access channels and ship berthing areas over Port Authority -owned submerged land may use Nationwide permits for maintenance dredging and placement into authorized DMPFs. USACE regularly permits terminals to place dredged material into the HSC system DMPFs named above. E. Company, a LSF within the Houston -Galveston Navigation Project, has requested that the Port Authority permit Company to place certain dredged material (the "Dredged Material") into the Placement Area defined above, which is an HSC system DMPF. F. The Port Authority and the USACE Galveston District (District) have agreed that use of Section 217b, which enables federal tipping fees collected to be returned to the District for use on subsequent construction projects at the DMPF used, is mutually beneficial. G. The Port Commission, by action taken in the Minute Number set out below its signature, authorized the Port Authority to enter into this agreement for placement of dredged material. Therefore, for the consideration and upon and subject to the terms and conditions hereinafter stated, the Port Authority and Company hereby agree as follows: Permission to Use Dredged Material Placement Area. a. The Port Authority grants Company permission to place the Dredged Material on the Placement Area, provided that Company: i. Has paid the Port Authority Application Fee and the USACE Processing Fee to the Port Authority, as provided in Section 6; ii. Has paid 75% of the Port Authority Material Placement Fee, and 100% of the USACE Material Placement Fee, to the Port Authority, as provided in section 6; iii. Agrees to pay any material placement fees owing after final adjustments, as provided in section 6; iv. Agrees to pay the Port Authority Management Fee owing at project completion, as provided in section 6; V. Has provided the sediment sampling and analysis, as set out in section 2; vi. Does not begin dredging until after receipt of written approval from Port Authority, as provided in section 2; and vii. Complies with all other provisions of this Agreement. b. This Agreement is made subject to 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. 3of13 File No. 2018-0214 including the location of any Discharge Corridor; and (ii) suspend or delay the Dredging Operations to allow Port Authority or USACE to place 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 correspondence to or from such agencies requesting or providing such directions. 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. Company agrees to repair and/or remediate at its own expense, as approved by and to the reasonable satisfaction of Port Authority, 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. If Company fails to perform or complete the repairs or remediation work within a reasonable period of time, Port Authority may (at its option) conduct such work and Company hereby agrees to reimburse Port Authority for its reasonable cost and expense in conducting such work. d. At Port Authority's sole option, 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, storage, transport, generation, abandonment, or disposal of Hazardous Materials (as defined below) or other materials subject to environmental regulation, to the extent caused by the Company and its 5of13 File No. 2018-0214 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 $20 Million per occurrence 1. All environmental policies will include tail coverage for three years after expiration of the license period. V. Umbrella Liability $20 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. 7 of 13 File No. 2018-0214 6. Fee Calculation and Payment. a. The Port Authority Application Fee is non-refundable and shall be paid to the Port Authority by Company at the time Company submits its application for this Agreement. b. The USACE Processing Fee is a non-refundable fee required by the USACE for their processing of the 217(b) application. This fee shall be paid to the Port Authority by Company at the time Company submits its application for this Agreement. The Port Authority shall submit this fee to USACE along with the 217(b) application. C. The estimated Port Authority Material Placement Fee shall be based on Company's estimate of the quantity of material set forth in its application for this Agreement. Seventy-five percent (75%) of such estimated Port Authority Material Placement Fee shall be paid by Company to the Port Authority after the Port Authority notifies Company that the USACE has approved the 217(b). This must be paid before Company is permitted to begin dredging. Payment of the balance of this fee shall be paid in accordance with Section 6g and 6h herein. d. The estimated USACE Material Placement Fee shall be based on Company's estimate of the quantity of material set forth in its application for this Agreement. One hundred percent (100%) of such estimated USACE Material Placement Fee shall be paid by Company to the Port Authority after the Port Authority notifies Company that the USACE has approved the 217(b). This must be paid before Company is permitted to begin dredging. e. The Port Authority Management Fee will be billed at project completion on the actual costs. At project completion, the Port Authority will invoice Company for the Port Authority Management Fee following the Port Authority's calculation of the amount of the actual costs. Such amount shall be due and payable thirty (30) days after the Port Authority provides Company with a written invoice for such amount. This fee compensates the Port Authority for inspecting and managing the dredging and placement activities under the 217(b) agreement. The USACE requires the Port Authority to prepare and submit for approval a placement plan that includes identifying the inspectors responsible for monitoring all phases of the placement of the dredged material, the inspector's responsibilities and duties, and reporting procedures. The Port Authority Management Fee is used for those activities and for activities including but not limited to: preparation and coordination of the dredging and placement plan; physical oversight of activities including inspections; funds transfers; other compliance activities; and post -dredging placement area management activities. This fee may be waived if the Dredging Operations are terminated before dredging has begun, but shall not be waived or refunded after dredging has started. This fee shall be paid by Company to the Port Authority at project completion. f. Within thirty (30) days of 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. 9of13 File No. 2018-0214 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 6f, 6g, 6h, and 6i 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). In the event that the Port Authority receives a request to provide information subject to the acts mentioned above, Port Authority shall notify Company in accordance with the provisions of the Texas Public Information Act, including Section 552.305. 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. 11 of 13 File No. 2018-0214 In witness whereof, the parties have executed this Agreement as of the date last set forth below. PORT OF HOUSTON AUTHORITY CITY OF BAYTOWN By Garry McMahan Director, Channel Development Operations Name Date Minute No: 2018-0416-19 APPROVED AS TO FORM: Port Authority Counsel File No. 2018-0214 Title Date 13 of 13 I .C: Cu E I F I 3 TWI