DREDGED SEDIMENT AGREEMENT
This Agreement is entered as of the date of the last signature below, by and between the Port of Stockton, political subdivision of the State of California (Port), The City of Stockton (City), a municipal corporation, and The Dutra Group (Dutra). Port, City, and Dutra may be collectively referred to as the Parties.
1. Recitals.
A. Dutra will be performing sediment removal at Buckley Cove Marina on behalf of the City.
B. Port owns certain real property located on Roberts Island in San Joaquin County State of California, more specifically described in Exhibit A which is attached hereto and incorporated herein by this reference (Dredge Sediment Placement Site).
C. The City desires to place dredged sediment upon the Dredged Sediment Placement Site, and the Port is willing to accept the dredged sediment material pursuant to the terms of this Agreement.
D. The City has satisfied the California Environmental Quality Act (CEQA) and obtained all required government permits in order to conduct the dredging in conformity with the approved dredging plan. The statute of limitations to file a lawsuit challenging the CEQA compliance has lapsed with no litigation being filed against the City of Stockton.
E. The City has obtained approval for the placement of dredged material at the Dredge Sediment Placement Site from the Central Valley Regional Water Quality Control Board (CVRWQCB) as evidenced by Notice of Applicability No. R5-2009-0085-026 (NOA) issued by the CVRWQCB declaring that placement of the sediment is authorized at the Dredged Sediment Placement Site, attached hereto and incorporated as Exhibit B.
NOW, THEREFORE, in consideration of the mutual promises and considerations herein, and in light of the circumstances outlined in the Recitals, which are incorporated fully herein by this reference, the Parties agree as follows:
1. Conditions Precedent to Permit for Discharge of Dredged Material at Dredged Sediment Placement Site.
a. The City shall furnish to Port all documentation describing the type of sediment (e.g. silt, silty sand, silt with sand, sandy silt, lean clay, sandy lean clay, etc.) that Dutra intends to deposit onto the Dredged Sediment Placement Site. b. The City shall provide to the Port comprehensive analytical laboratory tests and shall certify that the material contains no constituents that exceed criteria imposed by the CVRWQCB and that the material meets the requirements of the Notice of Intent/Dredging Permit Application (NOI), Notice of Applicability (NOA) and General Order No. R5-2009-0085 General Waste Discharge Requirements (WDR) for Maintenance Dredging operations Sacramento-San
EXHIBIT 1
Joaquin Delta (General Order) adopted by the CVRWQCB.
c. The City shall provide to the Port the Notice Of Applicability (NOA) for discharge of dredged material from the CVRWQCB, all sampling and analysis of water, and material required to meet the conditions set forth in the NOA and WDRs including background monitoring if necessary and providing all engineering and material quantity data and water quality data taken at the Dredged Sediment Placement Site.
d. Within five business days of the City furnishing the documentation and testing required by this Paragraph, the Port must provide written approval of the dredged material subject to being deposited at the Dredged Sediment Placement Site. If the Port does not provide such written approval of the quality of material proposed to be deposited at the Dredged Sediment Placement Site, it shall notify the City within five business days of the City furnishing the documentation and testing required by this Paragraph that the Port does not intend to provide written approval and then this Agreement shall automatically terminate and the City shall have no rights against the Port.
2. Permit. During the term of this agreement, the Port grants the City and its contractor, Dutra, permission to discharge up to approximately 65,840 cubic yards of clean dredged material on the Dredged Sediment Placement Site subject to the terms and conditions set forth in this Agreement.
3. Right of Entry. During the term of this Agreement, Port grants the City , its officers, employees, agents, and contractors, permission to enter the Dredged Sediment Placement Site with all the necessary equipment for the purpose of placing material as part of the Buckley Cove Marina maintenance dredging project. Port's permission to enter is expressly conditioned on the City to ensure that Dutra complies with each and every responsibility under this Agreement and depositing only dredge sediment material that meets the Port's quality standards.
4. Term. The term of this Agreement shall be for one year after the Effective Date of this Agreement. No dredge sediment shall be placed at the Dredged Sediment Placement Site after this Agreement lapses without a new agreement being executed between the Parties.
5. Payment.
a. The City shall pay to Port $7.00 per cubic yard (CY) of dredged sediment material deposited in the Dredged Sediment Placement Site (Deposit Fee). The City shall pay the Deposit Fee within forty-five (45) calendar days from the last day that it deposits any dredged sediment material in the Dredged Sediment Placement Site.
6. Discharge Conditions for Dredged Sediment Material.
a. Dutra shall discharge sediment material within the diked area approved by the Port that is located in the Dredged Sediment Placement Site as shown in Exhibit A.
Two (2) feet of freeboard minimum must be maintained at all times. If the existing dikes need improvement, Port shall be given the opportunity to review EXHIBIT 1
and approve the materials and methods used in constructing the diked area before discharging material into the approved diked area.
b. Dutra shall discharge material in a manner consistent with all applicable material disposal/reuse plans, the NOA, and WDRs adopted by the CVRWQCB.
7. Reuse of Dredge Material.
a. Dutra shall deliver only dredged material that the CVRWQCB concludes from the NOA, or equivalent document, poses no significant risk to reuse for on-island or off-island export purposes, and, subject to the terms and conditions of this Paragraph 7, may be reused without additional approvals. Dutra is prohibited from delivering all other dredge material, that does not meet these criteria to the Dredged Sediment Placement Site.
b. Dredged material discharged by Dutra pursuant to this Agreement is authorized to be reused in accordance with the requirements of the NOA, attached hereto as Exhibit B.
c. Subject to the terms and conditions of this Paragraph 7, Port shall have the right to use the sediment material and the right to assign such right in full or in part to any entity upon providing written notice to the City at least forty-five (45) calendar days prior to the use or assignment of the right to use the sediment material. d. Hazardous Material. If any hazardous materials, or other constituents that do not meet the criteria established under the Notice of Applicability, Waste Discharge Requirements, or other applicable regulatory permits, are identified in the dredged material placed at the Dredged Sediment Placement Site, the City shall be solely responsible for all actions necessary to address such materials. The City’s responsibility shall include, without limitation, the investigation, removal, transportation, and proper disposal of the hazardous or nonconforming dredged material, as well as all associated costs, liabilities, and regulatory compliance obligations.
For avoidance of doubt, the City’s responsibility under this Paragraph applies only to hazardous or nonconforming materials generated from, arising out of, or included within the dredged material delivered as part of the Buckley Cove Marina maintenance dredging project. Nothing in this Agreement shall be construed to impose responsibility on the City for hazardous materials or contamination that pre-exist at the Dredged Sediment Placement Site or that are unrelated to the dredged material generated from the project. e. – Language regarding City responsibility for hazardous or nonconforming dredged material.
8. The Dutra Group Obligations.
a. Dutra shall ensure access along the levee road during dredged material placement at the Dredged Sediment Placement Site.
b. Dutra shall notify the Port Engineer or such other representative appointed by Port prior to conducting any activities on the site.
EXHIBIT 1
c. The City shall provide the Port with a Completion Report, from Dutra, within Thirty (30) calendar days of placing material on the Dredged Sediment Placement Site on Roberts Island. The Completion Report shall contain but not be limited to the following information: a description of the quantity of material at each site, analytical results of any tests conducted during or after placement of material and an assessment of the site conditions at the time of project completion. d. Port shall notify the City within ten (10) business days of any claim, action or proceeding served upon Port, where such claim, action or proceeding may trigger The Dutra Group’s obligation to defend, indemnify or hold Port harmless pursuant to this Agreement. Such notice shall specifically identify facts underlying such claim for indemnification.
e. Port shall provide all assistance reasonably requested by City pertaining to any such matter.
f. The City shall fully reimburse Port for its indemnification obligations pursuant to this Agreement within Forty-Five (45) calendar days of receipt of an itemized written invoice from Port.
9. Insurance. The City shall furnish to Port a Certificate of Insurance before dredging or disposal activities commence, stating that there is liability insurance presently in effect for the City with bodily injury and property damage limits of not less than $1,000,000 per occurrence. The Certificate of Insurance will provide:
a. That the insurer will not cancel the insured's coverage without Thirty (30) calendar days' prior written notice to Port.
b. The Port their agents, officers, trustees, and employees are included as additional insureds, but only insofar as activities under this Agreement are concerned. c. That Port will not be responsible for any premiums or assessments on the policy.
The City agrees that the bodily injury liability insurance herein provided for shall be in effect at all times during the term of this Agreement. In the event said insurance coverage expires at any time or times during the term of this Agreement, The City agrees to provide at least Thirty (30) calendar days prior to said expiration date, a new Certificate of Insurance evidencing insurance coverage as provided for herein for not less than the remainder of the term of the Agreement. New Certificates of Insurance are subject to the approval of the Port. In the event The City fails to keep in effect at all times insurance coverage as herein provided, Port may, in addition to any other remedies it may have, terminate this Agreement upon the occurrence of such event.
10. Notice. All notices or other communications required or permitted hereunder shall be deemed to have been received either (a) when delivered by hand and the Party giving such notice has received a signed receipt thereof; or (b) one (1) calendar day following the date deposited with Federal Express or other recognized overnight courier; or (c) the date transmitted by electronic mail (with a confirmation copy delivered in person or by First Class U.S. Mail contemporaneously therewith), addressed as follows (or addressed in such other manner as the Party being notified shall have requested by written notice to the other EXHIBIT 1
Party); however, only attachments to electronic mail shall be considered notices and nothing within the body or subject line of an electronic mail shall be considered a notice under this Agreement:
If to The Dutra Group:
The Dutra Group
Attn: Chris Milam
2350 Kerner Blvd., Suite 200
San Rafael, CA 94901
Phone: (415) 258-6876
Email:
If to the City:
City of Stockton
Attn: Tina McCarty
501 W. Weber Ave
Building 2 – 4th Floors
Phone: (209) 937-8907
Email: [email protected]
If to Port:
Port of Stockton
Attn: Jason Cashman
315 Fyffe Avenue
Stockton, CA 95203
Phone: (209) 946-0246
Email: [email protected]
11. Miscellaneous.
a. Dutra and the City shall have no right to remove the material unless removal is ordered by the Port or CVRWQCB to do so.
b. The Parties shall cooperate with each other in the implementation of this Agreement. c. All the terms and provisions of this Agreement will be construed in accordance with and governed by the laws of the State of California, regardless of where this Agreement may be executed by the Parties.
d. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and may be amended or superseded only by a writing executed by all Parties.
e. This Agreement shall be binding on and inure to the benefit of each of the Parties and their respective successors and assigns.
EXHIBIT 1
f. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. g. The waiver by any Party of a breach of any provision of this Agreement will not operate, or be construed, as a waiver of any subsequent breach of any provision of this Agreement.
h. This Agreement may be executed in one or more parts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. i. The headings used in this Agreement for various sections and subsections are provided only for informational purposes and do not have any legal effect. j. The following Paragraphs shall survive termination of this Agreement: Paragraphs 5, 7, and 9.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT.
THE DUTRA GROUP
By:
President
PORT OF STOCKTON, a
Political Subdivision of the State of
California
Port Director
THE CITY OF STOCKTON
By:
City Manager
APPROVED AS TO FORM:
By:
________________________________
___
Donald Larkin, Interim City Attorney
ATTEST:
City Clerk
EXHIBIT 1
By
_______________________________
____
Bonnie Page, Interim City
Clerk
EXHIBIT 1