HomeMy WebLinkAbout12 - Port of Long Beach Memorandum of AgreementCITY OF
NEWPORT BEACH
City Council Staff Report Agenda Item No. 12
March 22, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Chris Miller, Harbor Resources Manager
APPROVED:P�eb
TITLE: Memorandum of Agreement with the Port of Long Beach for the
Rhine Channel Contaminated Sediment Cleanup Project
ABSTRACT:
The Port of Long Beach (POLB) requires a Memorandum of Agreement to be executed
prior to the City disposing any dredged sediment from the Rhine Channel in the Port's
Middle Harbor Redevelopment Project which will begin in August 2011.
RECOMMENDATION:
1. Approve and execute the Memorandum of Agreement with the POLB to
dispose of the sediments from the Rhine Channel Dredging Project; and
Authorize the City Manager or his designee to execute any future agreements
related to the Rhine Channel Dredging Project to ensure the City meets the
strict project schedule imposed by the POLB.
FUNDING REQUIREMENTS:
The Rhine Channel Dredging Project will cost approximately $5 million. Estimated
funds for the construction portion of the project are approximately $4 million (CIP 7231-
C4402004 — Tidelands Fund previously appropriated by the City Council). However,
project bids are due on March 24 which will further refine the estimation.
Construction management costs which include pre - project agency submittals, job site
field management, sediment and water quality sampling, lab fees, POLB coordination
and post - project agency submittals are expected to cost approximately $700,000.
Other project expenses are $71,000 in permit fees and air quality mitigation credits
(previously approved by City Council), and the potential costs associated with vessel
relocation of which plans are currently being formulated but not yet finalized.
Memorandum of Agreement with the Port of Long Beach for the Rhine Channel
Contaminated Sediment Cleanup Project
March 22, 2011
Page 2
DISCUSSION:
The Rhine Channel Dredging Project will remove contaminated sediments from the
Rhine Channel in the Lower Bay as well as from other nearby tidelands areas (Marina
Park, American Legion and 15th Street public pier). Overall, this project will (1) remove
contaminated sediments to restore and enhance state - designated impaired beneficial
uses of the Rhine Channel, (2) dispose of the removed sediment in an environmentally
responsible and cost - effective manner, (3) improve navigation, and (4) enhance coastal
access opportunities for the public by improving water quality.
The sediment removal from the Rhine Channel will be placed in the POLB's Middle
Harbor Project in order to fill an existing channel which will improve terminal operations
at the Port. The attached Memorandum of Agreement with the POLB will allow the City
to deposit sediment at the Middle Harbor Project (see attachment B). The Middle
Harbor Project is an extremely complex, multi - phase, time - sensitive project that relies
on coordination from multiple entities, and the City of Newport Beach is the first party to
participate. The POLB's Memorandum of Agreement was presented to the City on a
"take it or leave it" basis with little to no room for amendment. Although the
Memorandum of Agreement was drafted in favor of the POLB, City staff believes it is
the best option available to ensure the Rhine Channel is dredged in a cost effective and
efficient manner.
Rhine Project Status:
Several milestones have been met and the Rhine Project continues to proceed on
schedule as outlined below:
• The Mitigated Negative Declaration (CEQA) was approved by Council (July
2010).
• POLB approved the City's application to dispose of material at their facility.
(August 2010).
• Construction documents are finalized and the project is currently out to bid. Bid
opening March 24, Anticipated Council award April 26.
• All permits secured: Water Board, State Lands (no dredging lease necessary),
AQMD (pending purchase of mitigation credits), Army Corps of Engineers,
Coastal Commission (pending pre - project submittals).
• Staff is working with the State Lands Commission to obtain approval for the use
of Tidelands Funds on this project as required by the City's Tidelands Grant.
Memorandum of Agreement with the Port of Long Beach for the Rhine Channel
Contaminated Sediment Cleanup Project
March 22, 2011
Page 3
• Outreach meetings to the community: ongoing.
• Coordination with the Project stakeholders: ongoing.
• Coordination with the Office of the City Attorney for various stakeholder
agreements: ongoing.
• Negotiations for Construction Management including project coordination in
Newport Beach and the POLB, pre- and post - project submittals, and water
quality/sediment sampling: currently underway.
• Project duration: August through December 2011.
ENVIRONMENTAL REVIEW:
The City prepared a Mitigated Negative Declaration for this project that was reviewed
and approved by the City Council in ,July 2010.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Public Works Director
Attachments: A. Vicinit y Map
B. Port o f Long Beach Memorandum of Agreement
Memorandum of Agreement with the Port of Long Beach for the Rhine Channel
Contaminated Sediment Cleanup Project
March 22, 2011
Page 4
Attachment A
Vicinity Map
SOURCE: Issemap prepared from city of Newport Beach GIS files. tEGENO:
NOTE: Temporary moorage areas are located throughout lower O Proposed PmJect Area
Newport Bay. Pierhead Unes(Approdmate) 0 1000
Figure 2
�P.
Proposed Project Area
ANCHOR
�yRhine Channel Contaminated Sedimeent nt Cleanup
QFA cu..
Memorandum of Agreement with the Port of Long Beach for the Rhine Channel
Contaminated Sediment Cleanup Project
March 22, 2011
Page 5
Attachment B
Port of Long Beach Memorandum of Agreement
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MEMORANDUM OF AGREEMENT
BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
THE CITY OF LONG BEACH,
ACTING BY AND THROUGH ITS BOARD OF
HARBOR COMMISSIONERS
THIS MEMORANDUM OF AGREEMENT ( "MOA") is made and entered
into, in duplicate, as of the date executed by the Executive Director of the Long
Beach Harbor Department ( "Executive Director"), by and between the CITY OF
LONG BEACH, a municipal corporation, acting by and through its Board of
Harbor Commissioners ( "City ") pursuant to authority granted by said Board at its
meeting of 2011; and the CITY OF NEWPORT BEACH, a
municipal corporation ( "Third Party ").
1. Recitals. This MOA is made with reference to the following facts
and objectives:
1.1 City's Middle Harbor Redevelopment Project ("Middle Harbor
Project") is a complex, multi - phase, time- sensitive project that is expected
to be constructed while container terminals remain in operation.
1.2 One of the early, essential components of the Middle Harbor
Project is the placement of fill in the areas known as the Slip 1 fill area and
the East Basin fill area following the construction of two containment
dikes, as further described herein and in City's Middle Harbor
Redevelopment Sediment Management Plan ( "Middle Harbor SMP ").
1.3 Unlike a typical dredge disposal location, the Middle Harbor
fill site is an early, key component of a much larger, time - critical
redevelopment project. The timing of the placement of fill is critical to
subsequent terminal construction activities, but is also dependent on the
timing of preceding construction activities. As a result, the temporal
window for acceptance and placement of fill is both narrow and subject to
change as the Middle Harbor Project advances.
1.4 City anticipates satisfying some of its fill material needs from
material generated by the Middle Harbor Project and other Port of Long
Beach ( "Port") projects; however, in the interest of benefitting the Middle
Harbor Project and the region, and furthering the Los Angeles Regional
Contaminated Sediment Task Force's ( "CSTF ") policy of encouraging
beneficial reuse of contaminated sediments, City is endeavoring to
accommodate as much dredge material from third -party (i.e., non -Port)
projects as is reasonable given City's fill material criteria, the logistical,
technical and environmental requirements of the Middle Harbor Project
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and the requirements of Applicable Laws (as defined in paragraph 2
below).
1.5 To facilitate identification of suitable third -party fill material,
City has distributed Applications (as defined in paragraph 2 below) to
potentially interested parties, including Third Party.
1.6 Third Party has submitted an Application to City because it
has or expects to have, within the required timeframe, dredge material that
it wishes to dispose of and that it believes meets City's criteria and the
Middle Harbor Project requirements.
1.7 City, with input from the CSTF, has evaluated the
Applications and has selected Third Party as one of the potential sources
of third -party fill material.
1.8 Third Party is willing and able to meet City's fill.criteria and
the Middle Harbor Project requirements, and City is interested in
accommodating as much of Third Party's dredge material as is reasonable
within the constraints of the Middle Harbor Project, such project's
objectives and as is consistent with Applicable Laws, including without
limitation the USACE Permit and WDRs issued to City (each as defined in
paragraph 2 below).
1.9 The parties now wish by this MCA to set forth all of their
understandings regarding the dredge material, and the terms and
conditions under which such material may be placed in the Fill Site (as
defined in paragraph 2 below).
2. Definitions. In addition to the definitions set forth elsewhere in this
MOA, the following capitalized terms and phrases shall have the following
meanings for purposes of this MOA:
2.1 "Applicable Laws" is the collective reference to all applicable
laws, rules, regulations, requirements, licenses, permits and orders, as
may be amended from time to time.
2.2 "Application" is the Port of Long Beach Middle Harbor Fill
Site Application for Placement of Dredge Material, as may be amended
from time to time in City's sole discretion. The Application submitted by
Third Party is referred to herein as "Third Party's Application."
2.3 "Dredge Material" is Third Party's dredge material or any of it
as identified and described in the Third Party Fill Plan Memo as being
allowed to be placed in the Fill Site.
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2.4 "Effective Date" is the latest date on which City and Third
Party execute this MOA, as set forth on the signature page(s) of this MCA.
2.5 "Engineer" is the Chief Harbor Engineer of the Harbor
Department of the City of Long Beach, California, who may be
represented on the work by such assistants. as may be necessary.
Engineer's designated construction site manager shall be an authorized
representative of Engineer for purposes of this MOA.
2.6 "Fill Schedule" is the overall schedule established by City for
Fill Site . construction, dredge material delivery to the Fill Site and dredge
material placemenUlocation within the Fill Site, as may be modified from
time to time in City's sole discretion as described in paragraph 5.
2.7 "Fill Site" is the confined disposal site into which dredged
material is to be placed and contained for disposal within the Slip 1 fill
area and the East Basin fill area. The portion of the Fill Site into which
Third Party shall place its fill material is set forth in the Third Party Fill Plan
Memo (as defined in subparagraph 2.10 below).
2.8 "Governmental Authority" is any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
2.9. "Third Party Delivery Period" is the timeframe within the Fill
Schedule during which Third Party shall deliver and place the Dredge
Material in the Fill Site, as specified in the Third Party Fill Plan Memo.
2.10 "Third Party Fill Plan Memo" is the document developed by
Engineer in consultation with Third Party, detailing the Third Party Delivery
Period, the volume, the specifics of the material (chemical and
geotechnical) and the placement methods, as such Third Party Fill Plan
Memo may be modified from time to time in City's sole discretion as
described in paragraph 5. The Third Party Fill Plan Memo as of the date
hereof is attached hereto as Exhibit A and incorporated by this reference.
2.11 "Third Party Project" is the dredging origination project -
related activities accomplished or to be accomplished by Third Party that
involve the testing, permitting, dredging and transportation of material from
the origination location for placement in the Fill Site.
2.12 "Third Party's Application" is defined in subparagraph 2.2
above.
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2.13 " USACE Permit" is the United States Army Corps of
Engineers permit number SPL- 2004- 01053 -AOA issued for the Port of
Long Beach Middle Harbor Redevelopment Project, as may be amended
from time to time.
2.14 "WDRs" are the Waste Discharge Requirements (including
Order No. R4 -2010 -0020) issued by the California Regional Water Quality
Control Board, Los Angeles Region, for the Port of Long Beach Middle
Harbor Redevelopment Project (File No. 09 -204), as may be amended
from time to time.
3. Placement of Dredge Material. Subject to the terms and conditions
in this MOA:
3.1 City agrees to allow Third Party to place the Dredge Material
in the Fill Site as set forth in the Third Party Fill Plan Memo.
3.2 Third Party agrees to place or cause to be placed the
Dredge Material in the Fill Site as set forth in the Third Party Fill Plan
Memo and to comply or cause compliance with the other provisions of the
Third Party Fill Plan Memo. Third Party understands and acknowledges
that it may be necessary for the Engineer to supplement the Third Party
Fill Plan Memo with additional directions as conditions develop in the field,
including without limitation directives concerning the movement of Third
Party's vessels and equipment within the boundaries of the fill project.
Third Party agrees to comply or cause compliance with any such
directions.
3.3 Third Party understands and acknowledges that all matters
contemplated by this MOA, including without limitation the volume of
Dredge Material which may be placed and the deadline by which it must
be placed are subject in all respects to the terms and conditions of the
USACE Permit, the WDRs and all other Applicable Laws.
4. Limited Delegation of Authority to Engineer. Without in any manner
limiting City's discretion to modify the Third Party Fill Plan Memo or any other
provisions of this MOA, the Board of Harbor Commissioners hereby grants
authority to the Engineer to make changes to the Third Party Fill Plan Memo
made necessary by geotechnical engineering requirements, logistical
requirements and /or to comply with Applicable Laws. Any replacement versions
of the Third Party Fill Plan Memo shall be automatically substituted as Exhibit A
of this MOA.
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5. Fill Schedule, Etc.
5.1 City reserves all rights and discretion with respect to the
Middle Harbor Project, subject to Applicable Laws. As such, City reserves
the right to develop, establish and implement among other things, the Fill
Schedule and the Third Party Fill Plan Memo and the right to establish the
Third Party Delivery Period. City agrees to consult with Third Party in
developing the Third Party Fill Plan Memo and establishing the Third Party
Delivery Period, but it is understood and agreed by both parties hereto
that any final decisions shall be reserved to City.
5.2 City reserves the right to modify, in its sole discretion, the Fill
Schedule, Third Party Fill Plan Memo and Third Party Delivery Date from
time to time as field conditions and the requirements of the Middle Harbor
Project warrant and to comply with Applicable Laws. Where possible, City
will consult with Third Party in making modifications to the Third Party Fill
Plan Memo and Third Party Delivery Period. City also agrees to keep
Third Party reasonably apprised of any substantive changes to the Fill
Schedule, Third Party Fill Plan Memo and Third Party Delivery Period
(including by providing replacement versions of the Third Party Fill Plan
Memo as described in paragraph 4 above), however, notwithstanding
anything in this subparagraph or the MOA, any final decisions concerning
the Fill Schedule, Third Party Fill Plan Memo and Third Party Delivery
Date and any changes thereto shall be reserved to City and it shall be
Third Party's responsibility to communicate regularly with City to keep
itself informed of any such changes and to comply or cause compliance
with any such changes.
5.3 Third Party's sole and exclusive recourse by reason of any
disagreement with City that is not able to be resolved regarding the Fill
Schedule, Third Party Fill Plan Memo, Third Party Delivery Period or any
modifications thereto, shall be the termination of this MOA in accordance
with paragraph 13.
6. Conditions Precedent. As a condition precedent to City's
agreement to allow Third Party to place the Dredge Material in the Fill Site as
described in paragraph 3, Third Party shall do or cause to be done, at the earliest
time possible and in any event prior to any placement of the Dredge Material, the
following:
6.1 Obtain and provide City with copies of all regulatory permits,
licenses and approvals for the placement of the Dredge Material in the Fill
Site. Said permits, licenses and approvals shall name the Middle Harbor
Project Fill Site as an acceptable disposal site.
6.2 Demonstrate to City's satisfaction, including without
limitation by providing copies of any documentation requested by City, that
the Third Party Project has secured adequate funding and that Third Parry
has approved a dredging contract.
Third Party understands and acknowledges that satisfaction of all
conditions precedent is in no way a guarantee that Third Party will be able to
place the Dredge Material in the Fill Site or of the quantity of Dredge Material that
may be placed.
7. Third Party Affirmative Covenants. Third Party hereby agrees that
it shall and shall cause its employees, contractors and agents to:
7.1 Maintain all regulatory permits, licenses and approvals for
the placement of the Dredge Material in the Fill Site,
7.2 Comply with all Applicable Laws in the handling and
placement of the Dredge Material (including without limitation the
extraction, transportation and placement of the Dredge Material), and
where applicable assist and facilitate City's compliance with its permits
and other Applicable Laws.
7.3 In recognition of the critical importance to the Middle Harbor
Project of the timely placement of the Dredge Material, promptly
coordinate and cooperate, and regularly communicate with, the Engineer
and City's contractors in all matters relating to the placement of the
Dredge Material such that the Middle Harbor Project schedule is not
delayed or otherwise impacted. Such coordination, cooperation and
communication shall include, at minimum, attendance by Third Parry's
contractors at the Middle Harbor Project's weekly construction meetings
relating to dredging and fill activities, starting four weeks prior to
anticipated material placement and through the entire material placement
process or as otherwise noted to Third Party by City.
7.4 Comply with all Engineer directives, including but not limited
to directions to interrupt, delay, stop or modify the delivery of the Dredge
Material to and placement in the Fill Site due to water quality issues,
safety issues, impacts to City operations, permit compliance, dredge
material placement sequencing, and/or other issues pertinent to the
Middle Harbor SMP. In any event Third Party shall bear its own standby
and delay costs.
7.5 Employ best management practices in the handing and
placement of the Dredge Material (including without limitation with regard
to the extraction, transportation and placement of the Dredge Material).
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7.6 Upon request by City, provide access to Third Party's
records relating to or concerning the handling and placement of the
Dredge Material.
7.7 Upon request by City, provide access to Third Party's
contractors' construction operations records such as barge and disposal
logs related to the Fill Site placement activities to ensure coordination with
other construction activities.
7.8 Be responsible for rehandling, relocating and/or retrieving
any material which.is placed in any location other than that specified in the
Third Party Fill Plan Memo or lost during transportation or placement
activities, as may be directed by the Engineer or Governmental
Authorities, as the case may be.
7.9 Promptly give notice to City of'.
(A) the commencement of dredging activities for the Third
Party Project; .
(B) the completion of dredging activities for the Third
Party Project (at the same time notification is provided
to the regulatory agencies);
(C) any change in anticipated scheduling of the Third
Party Project or Third Party's ability to comply with
any provisions of this MOA, including without
limitation the Third Party Delivery Period or Third
Party Fill Plan Memo;
(D) any changes to the information provided to City
relating to or concerning the Dredge Material,
including without limitation the volume or chemical or
geotechnical profile;
(E) any litigation, investigation, proceeding or order
involving or affecting Third Party or the Dredge
Material; and
(F) any other matter or information involving or affecting
the Dredge Material which heretofore has not been
notified to City in writing.
7.10 Furnish to City:
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(A) as soon as available, but no later than concurrently
with Third Party's execution of this MOA, copies of all
bathymetri surveys and dredge designs;
(B) as soon as available but no later than concurrently
with Third Party's execution of this MOA, copies of all
sampling, analytical and technical data and reports.
relevant to assessment of the suitability of Third Party
Project material for placement and disposal in the Fill
Site;
(C) as soon as available but no later than concurrently
with Third Party's execution of this MOA, any other
test results, reports or data relating to or concerning
the Dredge Material;
(D) prior to the placement of any Dredge Material in the
Fill Site, copies of the permits, licenses and approvals
referred to in subparagraph 6.1, together with any
regulatory correspondence;
(E) any information generated by or caused to be
generated by Third Party for regulators concerning
the Dredge Material or Third Party Project;
(F) any information which may reasonably be expected to
need to be incorporated into City's Middle Harbor
Project documentation or documentation to comply
with City's permits. In the event of any doubt, Third
Party shall promptly consult with City.
(G) within thirty (30) days after Third Party's notification to
the regulatory agencies of completion of the pertinent
dredging activities, copies of Third Party's calculation
of the total in -situ dredged material volume, and all
information relevant to such calculation, including
without limitation all bathymetry surveys and other .
information; and
(H) any other information reasonably requested by City,
including without limitation barge information and
transportation logs.
7.11 Work in good faith with City to eliminate or minimize standby
and delay costs which may be incurred to accomplish the placement of the
Dredge Material in accordance with the Fill Schedule.
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7.12 Cooperate with any post - placement bathymetric surveys or
sampling which may be conducted by City to ensure that placement of the
Dredge Material was conducted as agreed upon in the Third Party Fill
Plan Memo.
8. Third Party Negative Covenants. Third Party shall not, and shall
not permit any of its employees, contractors or agents to:
8.1 Place any Dredge Material in the Fill Site prior to the
satisfaction of all conditions precedent pursuant to paragraph 6.
8.2 Place anything other than the Dredge Material (such as
construction debris) in the Fill Site, or otherwise violate the terms of the
USAGE Permit, the WDRs or any other Applicable Laws.
8.3 Impact, delay, interrupt or hinder the Fill Schedule, Middle
Harbor Project schedule, successful construction of the Middle Harbor
Project or the ongoing activities of City or the Port, including without
limitation any marine terminal operations.
8.4 Engage in any landside activities.
8.5 Engage in any activities inconsistent with the Environmental
Impact Report for the Middle Harbor Project ( "Middle Harbor EIR ").
8.6 Engage in any activities that would cause City to violate any
Applicable Laws, including without limitation, the USAGE Permit and
WDRs.
9. No Payment of Monies. Third Party understands that City will pay
no monetary consideration for the Dredge Material, but that the benefit to Third
Party is Citys willingness to accommodate as much Dredge Material as is
reasonable in the context of the Middle Harbor Project, subject to the terms and
conditions of this MCA.
10, No Liability of City: Assumption of the Risk by Third Party.
10.1 Although City is undertaking in this MOA to accommodate as
much of the Dredge Material as is reasonable in the context of the Middle
Harbor Project, Third Party acknowledges and understands that the
Middle Harbor Project's requirements and schedules are subject to
change and /or delay as field conditions develop and as fill from other third
parties is placed in the Fill Site. For example, the fill that is placed prior to
or concurrently with Third Party's Dredge Material may affect the timing,
volume and chemical and structural characteristics of the fill that follows,
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including without limitation eliminating the need for any additional fill.
Third Party understands that it is its responsibility to make, at its cost and
expense, such contingency and other plans as it sees fit, including
securing an alternate disposal site and negotiating flexibility into its
contracts and permits, to be prepared in the event that City's fill material
needs and /or scheduling changes. Third Party understands and
acknowledges that if it fails to make such contingency and other plans it
does so at its own risk.
10.2 Third Party assumes all risks and responsibilities associated
with the extraction, transportation and placement of the Dredge Material,
including without limitation compliance with all Applicable Laws and
rehandling of Dredge Material, injury to crew or contractors and misplaced
or lost fill material.
10.3 Third Party understands and acknowledges that City retains
all rights and discretion with respect to the Middle Harbor Project. City
makes no representations or warranties with respect to the placement of
the Dredge Material in the Fill Site, either by virtue of this MOA, any
permits, licenses or approvals obtained by either of the parties hereto, or
otherwise.
10.4 Third Party understands and acknowledges that nothing in
this MCA shall constitute or confer or be implied to constitute or confer a
grant of any property right, privilege, permit, license or other entitlement to
Third Party or anyone else.
10.5 Notwithstanding anything in this MCA, Third Party
understands and acknowledges that all matters contemplated by this MOA
are subject to the terms and conditions of City's permits and all other
Applicable Laws, as described in subparagraph 3.3 above.
10.6 Neither Third Party nor any other persons shall be entitled to
any monies or damages (including without limitation, consequential
damages) from City as a result of any matters relating to or arising from
this MCA, including without limitation any changes in City's fill material
needs or scheduling, such as City's accommodation of less Dredge
Material than is contemplated in this MOA or no Dredge Material. Third
Party's sole and exclusive recourse by reason of any matter concerning
this MOA shall be the termination of this MOA pursuant to paragraph 13.
11. Costs and Expenses. Without limiting any other provision of this
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11.1 Third Party agrees that it shall be responsible for all costs,
expenses and /or losses associated with the placement of the Dredge
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Material, including without limitation the extraction and transportation of
the Dredge Material to the Fill Site, compliance with all Applicable Laws,
any contingency plans, any delays in scheduling or any other
circumstances, conditions or changes, whether anticipated or not.
11.2 Third Party further agrees that it shall be responsible, and.
reimburse City for, all costs, expenses and /or losses incurred by City
associated with the placement of the Dredge Material, including without
limitation for any delays to the Fill Schedule. Costs, expenses and /or
losses incurred by City include, without limitation, out -of- pocket expenses,
in -house staff costs, reduced rent, and /or reimbursements.
11.3 Third Party agrees that it shall be responsible, and
reimburse City for, for all costs and /or losses incurred by City in
connection with surveys, inspections, monitoring and review related to or
arising out of the Dredge Material.
11.4 Third Party understands and acknowledges that if all the
Third Party Project material is not placed before the end of the Third Party
Delivery Period, the Fill Site may, at City's sole discretion, no longer
.accept the Third Party Project material or acceptance of material may
require additional logistical procedures and associated costs in order to
receive Third Party's Project material, all of which additional logistical
procedures, costs and expenses shall be Third Party's responsibility.
11.5 Third Party understands and acknowledges that once the Fill
Site reaches the elevation at which bottom dumping is no longer feasible,
rehandling of the Dredge Material including without limitation hydraulic
placement (and additional costs and expenses) will be necessary, as
further described in the Third Party Fill Plan Memo. Third Party shall be
responsible for any planning, costs and expenses associated with such
rehandling.
12. Representations and Warranties. To induce City to enter into this
MOA and allow Third Party to place the Dredge Material as provided in this MOA,
Third Party hereby represents and warrants to City that:
12.1 Except as otherwise notified to City in writing and
acknowledged by City prior to the Effective Date of this MCA, all
information and materials provided by Third Party to City relating to or
concerning the Dredge Material, including without limitation the
information set forth in Third Party's Application, is true, complete and
accurate.
12.2 Third Party has disclosed to City all material facts
concerning the Third Party Project and Dredge Material and not failed to
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disclose any material fact that would cause any representation to be
materially misleading.
12.3 The Dredge Material has been designated by all applicable
regulators as suitable for placement in a confined disposal facility.
12A The Dredge. Material does not constitute "hazardous waste"
as defined by the United States Environmental Protection Agency or the
California Department of Toxic Substances Control.
12.5 The Dredge Material is not encumbered by restrictions,
covenants or any other requirements imposed by the State of Califomia;or
any other Governmental Authority, including without limitation any
restrictions, covenants or other requirements having the effect of
establishing long -term liability, monitoring and/or maintenance obligations.
12.6 No litigation, investigation, proceeding or order of or before
any Governmental Authority is pending or, to the knowledge of Third
Party, threatened by or against Third Party or anyone else with respect to
the Third Patty Project or Dredge Material.
12.7 No claim or litigation of or by any person or non-
governmental entity or organization is pending or, to the knowledge of
Third Party, threatened by or against Third Party or anyone else with
respect to the Third Party Project or the Dredge Material.
12.8 Third Party has obtained and is familiar with the contents of
the Middle Harbor EIR, the current version of the Middle Harbor SMP, the
USACE Permit and the WDRs, copies of which are on file with City's
Director of Environmental Planning.
12.9 Third Party has the power and authority, and the legal right,
to make, deliver and perform this MOA.
12.10 This MOA has been duly authorized, executed and delivered
on behalf of Third Party.
13. Termination. If not earlier expired, this MOA may be terminated at
any time as follows:
13.1 Upon the mutual agreement of City and Third Party.
13.2 By either party, by giving fourteen (14) days' notice to the
other party in the event that the parties are unable to resolve a dispute
pursuant to paragraph 23.
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13.3 City may terminate this MOA by giving Third Party two (2)
days' notice upon the breach or default by Third Party (either directly or
through a contractor, subcontractor or agent of Third Party) of any
covenant, duty, obligation, representation or warranty of Third Party under
this MOA and /or any exhibit hereto. Notwithstanding the foregoing, City
may terminate this MOA immediately and without any notice to Third Party
in the event of a breach`or default that City believes in its sole discretion is
an imminent threat to the timely, safe or successful completion of the
Middle Harbor Project. Additionally, City may terminate this MOA
immediately and without any notice to Third Party in the event that City
believes in its sole discretion that a violation of an Applicable Law is
imminent or reasonably likely to occur.
13.4 Upon any termination (or expiration) of this MOA, Third Party
shall immediately cease and cause its employees, contractors and agents
to cease all activities, and shall at Third Party's cost, promptly and with all
due care, remove and demobilize all equipment, debris and personnel
from the Middle Harbor Project site. Third Party shall, at its cost, repair
any damage caused by such removal or demobilization and reimburse
City for any delay costs attributable to such removal or demobilization.
13.5 Notwithstanding anything contained in the foregoing or
elsewhere in this MOA, the obligations and indemnities of Third Party
pursuant to paragraphs 10, 11, 13.4 and 15 shall survive any termination
of this MCA.
14. MOA Expiration Date. Notwithstanding anything contained in this
MCA or any exhibits hereto, including without limitation the Third Party Fill Plan
Memo, if this MOA has not earlier been terminated pursuant to paragraph 13, this
MOA shall expire on the earliest of the following dates (such date, the "Expiration
Date "):
14.1 Five years from the Effective Date;
14.2 February 3, 2015, or other date specified in the WDRs;
14.3 February 28, 2020, or other date specified in the USACE
Permit; or
14.4 Upon reaching the applicable volume limits set forth in the
USACE Permit,
unless and until City in its sole and absolute discretion elects to and approves the
extension of the Expiration Date (and, in the case of any applicable regulatory
requirements, obtains the necessary approvals or waivers from the relevant
Governmental Authority to modify such requirement). Notwithstanding, anything
13
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contained in the foregoing or elsewhere in this MOA, the obligations and
indemnities of Third Party pursuant to paragraphs 10, 11, 13.4 and 15 shall
survive any expiration of this MOA. Nothing in this paragraph 14 creates a duty
or obligation on the part of City to seek any approvals, waivers, time extensions
or otherwise from any Governmental Authorities.
15. Indemnity, Third Party shall indemnify, hold, protect and save
harmless the City of Long Beach, the Board of Harbor Commissioners and their
officials, commissioners, employees, consultants, advisors and agents
( "Indemnified Parties ") from and against any and all actions, suits, proceedings,
claims, demands, damages, losses, liens, costs, expenses or liabilities, of any
kind or nature whatsoever ( "Claims ") which may be brought, made, filed against,
imposed upon or sustained by the Indemnified Parties, or any of them, alleging
any connection with this MOA or activities described or related to activities
described in this MOA, including without limitation any activities of Third Party, its
employees, contractors, subcontractors or agents. City shall notify Third Party of
any such Claim, shall tender its defense to Third Party, and assist Third Party, as
may be reasonably requested, in such defense. Upon such notification and
tender, Third Party shall have independent duties to defend such Claim, and to
indemnify the Indemnified Parties except to the extent that injury, death or
property damage is determined by a court of competent jurisdiction to have been
caused by the negligence or willful misconduct of the Indemnified Parties or any
of them. Payment of a Claim shall not be a condition precedent to an
Indemnified Party's right to defense and indemnity.
16. Insurance. As a condition precedent to the effectiveness of this
MOA, Third Party shall (or shall cause its contractor to) procure and maintain in
full force and effect during the term of the MOA, Watercraft Liability Insurance
including Protection and indemnity with minimum limits of $10,000,000 per
occurrence, Jones Act for employees performing services under said Act, and
Water Pollution Liability. Water Pollution Liability shall include coverage for
bodily injury (including death and mental anguish), property damage, defense
costs and cleanup costs with minimum limits of $10,000,000 per loss
and $10,000,000 total all losses.
Insurance policies will not be in compliance with the MOA if they include
any limiting endorsement that has not been approved in writing by City.
The policy or policies of insurance for Watercraft Liability shall contain the
following provisions or be endorsed to provide the following:
(1) The Indemnified Parties shall be additional insureds
with regard to liability and defense of suits or claims arising out of
the MOA.
Additional Insured Endorsements shall not:
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Be limited to ongoing operations.
ii. Exclude contractual liability.
iii. Restrict coverage to the sole liability of Third
Party (or Third Party's contractor, if insurance under this
paragraph 16 is being procured and maintained by Third
Party's contractor).
IV: Contain any other exclusion contrary to the
•M
(2) This insurance shall be primary and any other
insurance, deductible, or self- insurance maintained by the
Indemnified Parties shall not contribute with this primary insurance.
(3) The policy shall not be canceled or the coverage
reduced until a thirty (30) day written notice of cancellation has
been served upon the Executive Director of the Harbor Department
except notice of ten (10) days shall be allowed for non- payment of
premium.
Any deductible or self - insured retention must be approved in writing by the
Executive Director and shall protect the Indemnified Parties in the same manner
and to the same extent as they would have been protected had the policy or
policies not contained a deducible or self- insured retention.
Third Party shall (or shall cause its contractor to) deliver either certified
copies of the required policies or endorsements on forms approved by the City
( "evidence of insurance ") to the Executive Director for approval as to sufficiency
and as to form. At least fifteen (15) days prior to the expiration of any such
policy, evidence of insurance showing that such insurance coverage has been
renewed or extended shall be filed with the Executive Director. If such coverage
is canceled or reduced, Third Party shall (or shall cause its contractor to), within
ten (10) days after receipt of written notice of such cancellation or reduction of
coverage, file with the Executive Director evidence of insurance showing that the
required insurance has been reinstated or has been provided through another
insurance company or companies.
The coverage provided shall apply to the obligations assumed by the Third
Party under the indemnity provisions of this MOA but this insurance provision in
no way limits the indemnity provisions and the indemnity provisions in no way
limit this insurance provision.
Third Party agrees to suspend and cease, and cause the suspension and
cessation of, all operations hereunder during such period of time as the required
insurance coverage is not in effect and evidence of insurance has not been
approved by the City.
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Each such policy shall be from a company or companies with a current
A.M. Best's rating of no less than A:VII and authorized to do business in the
State of California, or otherwise allowed to place insurance through surplus line
brokers under applicable provisions of the California Insurance Code or any
federal law.
If coverage is written on a claims -made basis, the retroactive date on such
insurance and all subsequent insurance shall coincide with or precede the
effective date of the MOA and continuous coverage shall be maintained or Third
Party shall (or shall cause its contractor to) obtain and submit to City an extended
reporting period endorsement of at least three (3) years from termination or
expiration of this MOA.
Upon expiration or, termination of coverage of required insurance, Third
Party shall (or shall cause its contractor to) procure and submit to City evidence
of 'lair coverage or an extended reporting coverage period endorsement -for the
period of at least three (3) years from termination or expiration of the MOA.
17. Notices. Any notices to be given under this MOA, including without
limitation the notices described in subparagraph 7.9, shall be given in writing.
Such notices may be served by personal delivery, facsimile transmission or by
first class regular mail, postage prepaid. Any such notice, when served by mail,
shall be effective two (2) calendar days after the date of mailing of the same, and
when served by facsimile transmission or personal delivery shall be effective
upon receipt. For the purposes hereof, the address of City, and the proper
person to receive any such notices on its behalf, is: Executive Director, Long
Beach Harbor Department, P.O. Box 570, Long Beach, California 90801, FAX
number (562) 901 -1733 with a copy to: Thomas Baldwin, Long Beach Harbor
Department, P.O. Box 570, Long Beach, California 90801, FAX number (562)
901 -1763; and the address and FAX number of Third Party set forth on Exhibit B
attached hereto.
18. Governing Law. This MOA shall be deemed made in the State of
California and shall be governed by the laws of said State (except those
provisions of California law dealing with conflicts of law), both as to interpretation
and performance.
19. Amendments. Waivers and Extensions. Except as expressly
provided in this MOA, no modification, amendment or extension, in whole or in
part, of this MOA shall be effective unless made in writing by both parties hereto.
No waiver shall be effective unless made in a writing by a duly authorized officer
or representative of the parry whose rights are thereby waived. No waivers shall
be implied.
20. Merger: Integration. This MOA, including all exhibits, constitutes
the entire understanding between the parties and supersedes all other
agreements, oral or written, with respect to the subject matter herein.
16
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21. Relationship of the Parties. Each party hereto represents that it
has sought and obtained any appropriate legal advice it deems necessary prior
to entering into this MOA. No party shall act or be deemed to act as legal
counsel or representative of the other party, unless expressly retained by such
party for such purpose, and, except for such express retention, no attomey /client
relationship is intended to be created between the parties. Nothing herein shall
be deemed to create a partnership or joint venture and /dr principal and agent
relationship between the parties hereto. Each party represents that the parties
hereto have participated jointly in the negotiation and drafting of this MOA. In the
event any ambiguity or question of intent or interpretation arises, this MOA shall
be construed as if drafted jointly by both parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this MOA.
22. Assignment: Binding Effect. Third Party shall not assign or transfer
this MOA without the prior written approval of City. Such approval may be
granted or denied in the absolute discretion of City. This MOA shall extend to, be
binding upon, and inure to the benefit of the parties hereto and their respective
successor, heirs and permitted assigns.
23. Dispute Resolution. In the event of a dispute between the parties
hereto, the parties shall make good faith efforts to resolve the dispute through
negotiation. If the parties are unable to resolve the dispute, one or both parties
may terminate this MCA in accordance with paragraph 13.
24. Order of Precedence. In the event of any conflict or ambiguity
between this written agreement and any exhibit hereto, the provisions of this
agreement shall govern.
25. Counterparts: Headings. This MOA may be executed in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument. The headings and sub-
headings contained in this MOA are for reference purposes only and shall not in
any way affect the meaning or interpretation hereof.
[Signature Page Follows]
17
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2011 By:
Name:
Title:
2011 By:
Name:
Title:
APPROVED As TO FORM -
0n%i�n1 == tic
City Attomey
2011 By:
CITY OF NEWPORT BEACH, a municipal
corporation
:- 'T:ISI
CITY OF LONG BEACH, a municipal
corporation, acting by and through its
Board of Harbor Commissioners
CITY
Richard D. Steinke
Executive Director
Long Beach Harbor Department
The foregoing document is hereby approved as to form.
2011 By:
ROBERT E. SHANNON, City Attorney
Tiffani L. Shin, Deputy
[Signature Page to Third Party Dredge Material MOAJ
18
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EXHIBIT A
THIRD PARTY FILL PLAN MEMO
[Attached.]
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THIRD PARTY FILL PLAN MEMO
Version 1.0 February 17, 2011
This memorandum sets forth specific details associated with the materials to be delivered by the City of
Newport Beach to the City of Long Beach.
DELIVERY PERIOD
The delivery period for the third party material shall be as stated below. Any changes to the delivery
period will be according to the provisions of the MOA. The delivery cannot commence until the City
constructs the retention dike and the site is made available. It is understood, the City has entered into a
Contract with Manson /Connelly JV to construct the retention dike for the Slip 1 fill location and
coordinate the deposit of Third Party materials. The retention dike is anticipated to be in place and the,
fill site available by August 2011. The City will notify the third party in writing when the disposal site is
available.
Delivery Period is August through December, 2011
VOLUME OF MATERIAL
The volume of material the Third Party anticipates delivering to the City is 150,000 cubic yards. This
quantity is approximate and may vary by 10V9 without this memorandum needing to be revised.
MATERIAL CHARACTERISTICS
The materials to be delivered are generally characterized as silt /clay materials dredged from the
Rhine Channel representing contaminated sediment cleanup. The material characteristics are
based on geotechnical reports provided by the City of Newport Beach with the application dated
June 30, 2010 and additional geotechnical data in September 2010.
Based on the geotechnical information provided, the proposed dredge materials have the following
typical geotechnical characteristics:
Mostly fine- grained soils with up to 25 percent clays (percentage of materials finer than 2
micrometers in diameter) and up to 75 percent silts [percentage of materials that are larger
than 2 micrometers in diameter and smaller than No. 200 sieve opening (75 micrometers in
diameter)].
Based on early chemical information provided by the City of Newport Beach, the proposed dredge
materials have the following specific characteristics:
All boring locations exceed ERL and /or ERM levels for Mercury, Copper and Zinc. Also, all boring
locations exceed ERL and /or ERM levels for PCBs and DDT.
Exhibit A
Page 1 of 2
Any material not consistent with the general characteristics represented by the testing performed will
not be permitted to be placed in the fill
PLACEMENT METHODS
The materials are to be delivered by barge and deposited in the Slip 1 Layer 1 area within the
Middle Harbor in the Port of Long Beach as shown on the attached placement drawings. The
deposited materials shall be placed in a manner as to create a relatively consistent elevation, with
undulations not to exceed 4 feet vertically from the surrounding area. The material shall be placed
in a pattern of barge placement that does not continuously overlap previous placement. In no
case shall the material be allowed to be deposited at a height above elevation -20' MLLW.
Any debris from the Third Party material disposal shall be removed by the Third Party and properly
disposed of outside the Port of Long Beach.
GENERAL REQUIREMENTS
The Third Party shall schedule a pre - disposal coordination meeting with the City at least fourteen
calendar days prior to scheduled delivery.
In addition to Conditions Precedent, Section 6 of the MOA, the Third Party shall provide for the
City's review and approval copies of all permits, insurance, indemnity forms no less than thirty
calendar days prior to scheduled delivery in accordance with the MOA.
In addition to Third Party Affirmative Covenants, Section 7 of the MOA, the Third Party shall
provide the City with a pre disposal bathymetric survey of the fill site seven calendar days prior to
scheduled delivery.
Attachments:
Fill Site Plan
Fill Section A -A
Fill Section B -B
Exhibit A Page 2 of 2
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LONG BEACH
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CITY OF NEWPORT BEACH
DREDGE. MATERIAL DEPOSIT LOCATIONS
PLAN
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LONG DEACH
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CITY OF REWPORT BEACH
SLIP NO. 1 MATERIAL LAYERS
SECTION B-B
EXHIBIT B
THIRD PARTY'S ADDRESS AND FAX NUMBER
City of Newport Beach, Harbor Resources
Chris Miller
829 Harbor Island Drive
Newport Beach, California 92660
FAX number (949)'723 -0589
20
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