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Ordinance No. 8,599�J 990610 -3 ORDINANCE NO. 8599 AN ORDINANCE OF THE CITY COUNCIL, OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A LICENSE AGREEMENT WITH STOLTHAVEN HOUSTON, INC., TO PERFORM A WETLANDS MITIGATION PROJECT AT THE BAYTOWN NATURE CENTER; 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 the City Manager to execute and the City Clerk to attest to a license agreement with Stolthaven Houston, Inc., to perform a wetlands mitigation project at the Baytown Nature Center, which agreement is attached hereto and marked as Exhibit "A' and incorporated herein for all intents and purposes. Section 2: 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 affirmative vote of the City Council of the City of Baytown this the 10h day of June, 1999. ATTEST: 94�� 1Q / - EIL.EEN P. HALL, City Clerk APPROVED AS TO FORM: ullh 1721CityCouncill 0rdinances\U censeAgreement4BaytownNatureCenter PETE C. ALFARO, ayor JUN 03 '99 04 :08PM CITY OF BAYTOWN P•2iy M ® LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § THIS LICENSE AGREEMENT, made this 'day of June, 1999, by and between the CITY OF BAYTOWN, TEXAS, being a body corporate and politic and a political subdivision of the State of Texas (the "Owner") and Stolthaven Houston Inc., being a Texas corporation (the "Company "). WITNESSETH WHEREAS, Owner is the owner of the land located at Baytown, Texas, shown crosshatched as the 40 -acre mitigation area in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Premises "); and WHEREAS, the Company has received an Army Corps of Engineers Section 404/401 permit, requiring the Company to construct 20 acres of wetlands as compensatory mitigation for wetlands; and WHEREAS, the Company has submitted a mitigation plan describing the entire project, which plan is attached hereto, labeled Exhibit "B" and incorporated herein for all intents and purposes (the "Plan'); and WHEREAS, the Company desires to perform its wetlands mitigation project (the "Project ") at the Baytown Nature Center; and WHEREAS, the Owner has reviewed and approved the Plan and desires the Project to be constructed on the Premises; NOW THEREFORE, for and in consideration of the sum of ONE DOLLAR and other good and valuable consideration, the receipt whereof is hereby acknowledged, and intending to be legally bound, Owner and the Company agree as follows: License. The Company shall have the right, liberty, privilege, license and authority to enter upon the Premises at any time and from time to time during the term of this Agreement and to make such alterations and improvements to the Premises and take any and all such other actions as the Company deems necessary, desirable or otherwise appropriate to implement the Project in accordance with the Plan. The rights granted herein to the Company shall include, without limitation, the right to perform construction, initial maintenance, and monitoring of the Project during the term of this Agreement. 2. Monitoring. The Company hereby agrees that it will monitor the Premises for a period of three years after the construction of the Premises has been completed and shall submit monitoring reports annually to the Owner. Licensc Aerccmcn Pagc 1 E MBIr. A JUN -03 -1999 18 =30 281 420 6586 98% P.02 n' an : • v09: 07u JUN 04 ' 99 Af1 CRrii5g LL&RIGGS, PC 3. Interference. The Owner agrees not to construct any buildi ® Premises, which would interfere wlth the ngs or structures on the construction or maintenance of the Project 4. No conveyance of interest. The Owner agrees not to grant any additional or future eascaments, licenses, leases or other rights of use or possession of the Premises during the term of this Agreement as would or may interfere or conflict with the Project or other activities of the Company pursuant to this Agreement. • 5. Term. This Agreement shall commence on the date of execution by the Owner and shall remain in effect for three years after the completion of Construction, unless cancelled by mutual agreement of the Owner and the Company or otherwise terminated by the Owner pursuant to Paragraph 13. The Owner agrees to extend this Agreement for additional tera at the request of the Company if the Company continues r at the time of extension to have responsibilities for the maintenance or monitoring of the Premises under its permit from the Corps of Engineers. 6. Warranty. Owner warrants that it has good and valid title to the Premises and the lawful authority to execute this Agreement and to perform the obligations herein according to its terms. The Owner warrants and agrees to defend said title and the license granted he from any and all claims, challenges, disputes, demands and assertions arising 6-om any claim ags.inst or involving the title to the Premises or any interest in the Premises. 7. Representatives. The rights granted herein to the Company may also be exercised by the Company's agents, subcontractors and invitees and by the representatives of the Federal trustees, subject to the terms of this Agreement. S. Indemnity. THE COMPANY AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER IN THIS PARAGRAPH, WHEER SINGULAR OR PLURAL, REFERRED TO AS THE "OWNER") QOM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUTX'S AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND REASONABLE ATTORNEY FEES FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE PROJECT, TO THE EXTENT ANY SUCH INJURY, DEATH OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, JOINT NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY, ITS EMPLOYEES, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND /OR ASSIGNS. WITHOUT LIMITATION OF THE FOREGOING, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO U KKAY C?M -ant Psgc 2 JUN -04 -1999 10 =24 17136215453 96% P.02 Ll JUN 03 '99 04 :09PM CITY OF BAYTOWN W r.-4/ :7 APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY TO THE EXTENT THAT THE INJURY, DEATH OR DAMAGE RESULTS FROM THE NEGLIGENCE OF THE OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER BY REASON OF ANY OF THE PROVISIONS CONTAINED IN THIS PARAGRAPH, THE COMPANY FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER, SUCH ACCEPTANCE NOT TO BE UNREASONABLY WITHHELD. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OF THIS AGREEMENT. 9. Assumption of responsibility. By this Agreement, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. The Company assumes full responsibility for the services performed hereunder as well as for the acts and deeds of its officers, agents and/or employees. 101 No right of arbitration. Notwithstanding anything to the contrary or apparent contrary contained in this Agreement, the Owner and the Company agree that no claims or disputes between the Owner and the Company arising out of or relating to this Agreement to any of the work shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. §§ 1 -14) or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, Texas Revised Civil Statutes, Title 10, articles 224 through 249 -43, provided that in the event that the Owner is subject to an arbitration proceeding notwithstanding this provision, the Company consents to be joined in the arbitration proceeding if the Company's presence is required or requested by the Owner for complete relief to be awarded in the arbitration proceeding. 11. Insurance. Throughout the term of this Agreement, the Company at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the Company's operations and /or performance under this Agreement, whether such operations and/or performance, be by the Company, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The Company's insurance coverage shall be primary insurance with respect to the Owner, its officers, agents and employees, Any insurance or self - insurance maintained by the Owner, its officials, agents and employees shall be considered in excess of the Company's insurance ® and shall not contribute to it. Further, the Company shall include all subcontractors as Liccnsc Aereernent, Pagc 3 JUN -03 -1999 18 =31 281 420 6586 98i P.04 JUN 03 '99 04:10PM CITY OF BAYTOWN r.Di:P ® additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: 1. Commercial General Liability (CGL) • General Aggregate: $1,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal & Advertising injury: $1,000,000 • Per Occurrence: $500,000 a. Coverage shall be at Ieast as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy (BAP) • Combined Single Limits: $1,000,000 a. Coverage for "Any Auto." 3. Workers' Compensation: Statutory Limits • Employer's Liability: $500,000 a. Waiver of Subrogation Required. Upon execution of this Agreement, the. Company shall file with the Owner valid certificates of insurance and endorsements acceptable to the Owner. Such certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least sixty (60) days' prior written notice has been given to the Owner via certified mail, return receipt requested. The Company shall also file with the Owner valid certificates of insurance covering all of its contractors and subcontractors performing any work hereunder. However, evidence of insurance for any such contractor or subcontractor shall be furnished to the Owner prior to the time that such contractor or subcontractor is to begin work on the Project. No contractor or subcontractor shall be allowed to work on the Project until evidence of insurance for such contractor or subcontractor has been furnished to and approved by the Owner. The following are general requirements which are applicable to all policies: 1. AM Best Rating of A:VII or better. 2. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. Liccnsc ACreemcnt, Pap d JUN -03 -1999 10:32 281 420 6586 98x P.05 JUN 03 '99 04:11PM CITY OF BAYTOWN r.oi7 3. Liability policies will be on occurrence form. 4. The Owner, its officials and employees are to be added as Additional Insureds to liability policies. 5. Upon request of and without cost to the Owner, certified copies of all insurance policies and /or certificates of insurance shall be fumished to the Owner. Certificates of insurance showing evidence of insurance coverage shall be provided to Owner prior to execution of this Agreement. 6. Upon request of and without cost to the Owner, loss runs (claims listing) of any and /or all insurance coverage shall be furnished to the Owner. 12. Access control. Without limitation of the provisions of the preceding paragraphs, for reasons of safety and avoidance of liability, the Company shall have the right, but not the obligation except as required by local, state or federal law, to prohibit or otherwise restrict access to the Premises by members of the pubic at the Company's discretion during the term of this Agreement. The foregoing is not intended to limit the right of inspection of the Premises from time to time by Owner's authorized representative or to limit the Owner's ability to access the Premises or to construct additional planned improvements on the Premises. 13, Termination. The Owner may terminate this Agreement at any time without cause upon a finding by the City Manager that the public health, safety and/or welfare demand such result. 14. Entire Agreement. It is understood that this Agreement contains the entire agreement between the parties and supercedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, or promises shall be binding on the parties hereto, unless the same are reduced to writing and validly executed by both parties. No verbal agreement or conversation with any officer, agent, or employee of the Owner, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 15. Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remainder of this Agreement shall not be affected thereby, and each other term of this shall be valid and enforced to the fullest extent permitted by law. 16. Binding effect. This Agreement and all obligations, rights, liberties, privileges, licenses and authorizations granted herein, as well as all representations, warranties, and obligations shall be binding upon and run to the benefit of Owner, the Company, and their respective successors and assigns. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Company and the Owner only. Licensc Agrcernm Page 5 JUN -03 -1999 18:32 291 420 6586 98i P.06 JUN 03 '99 04:11PM CITY OF BAYTOWN r. ray ® 17. Assignment. The Company shall not assign, sell or otherwise transfer any of its rights of obligations under this Agreement, in whole or in part; without the written consent of the Owner. 18. Choice of law and venue. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas, regardless of the place of execution or performance. The place of making and the place of performance for all purposes shall be deemed to be Baytown, Harris County, Texas. 19. Compliance with all applicable laws. The Company shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. 20. Independent Contractor. It is expressly agreed and understood by all parties hereto that Company is an independent contractor in its relationship to the Owner. Nothing herein contained at any time or in any manner shall be construed to effect a contract of partnership or joint venture or render any party hereto the employer or master of any other party and /or its employees, agents or representatives. All necessary personnel for the services offered shall be deemed independent contractors and /or employees of the Company. 21. Notice. All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective 'addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: COMPANY Stolthaven Houston Inc. Attn. Mr. Jan -Tore Dolven General Manager Houston Terminal and Vice President Stolthaven Terminals Division P.O. Box 96438 Houston, TX 77213 -6438 Fax: (281) 457 -5957 OWNER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281) 420 -6586 22. Non - waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise ® any right or remedy occurring as a result of any future default or failure of performance. License Agreement, Page 6 JUN -03 -1999 19:33 291 420 6586 98% P.0? JUN 03 '99 04 :12PM CITY OF BAYTOWN W P_Bi9 23. Headings. The paragraph headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation 24. Authority. The individuals executing this Agreement warrant and represent that they are duly authorized to execute this Agreement on behalf of Owner and the Company as the binding act and agreement of Owner and the Company, respectively. 25. Agreement read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 26. Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 27. Multiple originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 31N WITNESS WEFREOF, the undersigns have executed this Agreement as of this the day of June, 1999. 1 Licensc A rccm Page 7 JUN -03 -1999 18:34 STOLT I N fI USTO C. By: Signatu ' 1 Printed Name Title CITY OF BAYTOWN, TEXAS By.- MONTE MERCER, City Manager 281 420 6586 98i P.08 JUN 03 '99 04 :13PM CITY OF BAYTOWN ® ATTEST: EI;I.EEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR, City Attorney STATE OF TEXAS § COUNTY OF HARRIS § I` .yi11 Before me, . 3Lhns the undersigned notary public, on this day personally appeared 7AN -TORE Pct-vim in his capacity as G er e mat i►'I atit a 9 of Stolthaven Houston Inc., on behalf of such corporation, known to me; proved to me on the oath of _ ; or proved to me through his/her current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (J one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this'el9d JANET J. JOHNSTON l� tt1 = NOTARY PUBLIC, STATE OF TEXAS 1, MY COMMISSION EXPIRES �1 OCT. 31, 1999 June, 19 PublicA and/f6r the State of My commission expires: ® c: Mh172% Co nUaeU\ SIQILMvrnHouaonUCMeNLiccnsc AC;rcemcni+M it; piionPhnClexn.doe License Agrccmcnt, Page 3 JUN -03 -1999 18:34 261 420 6586 98% P.09 i t9U FAX N0. 2814482296 L THAVEN-HOUSTON, INC. PROPOSED YTOWN NATURE CENTER WETLANDS MITIGATION SITE Exh�b�+ 4A 40 -ACRE 1TIGATION AREA Aff ol l aaRi MAY --27-1999 14:4? 2814482296 P. 02 3� wow r - 95i P.02 !`w MITIGATION PLAN 1. The applicant will commence the mitigation plan within three months of issuance of the permit. Creation of depressional wetlands will be completed by October 1, 1999, and the entire mitigation plan will be completed one year from date of permit issuance. 2. The applicant will create 20 acres of depressional wetlands within a 30 -acre mitigation area located in the Baytown Nature Center. At the request of TNRCC the applicant has agreed to set aside an additional 10 acres of uncleared upland buffer that will surround the 30 -acre mitigation area. 3. Prior to land clearing (movement of soil) at the mitigation site, a wetland determination will be conducted and coordinated with the US Army Corps of Engineers (USACE) 4. If existing wetlands are located on the mitigation site, each wetland will be staked and protected from_ construction activities. Wetland data forms will be completed for each wetland encountered. The (USACE) will be notified in order for field verification of these wetlands to be scheduled. 5. The mitigation area will be cut to eliminate the undesirable trees and shrubs, and the Chinese tallows will be treated with a herbicide after cutting to prevent re- sprouting. 6. Should existing wetlands within the mitigation area total greater than 2 acres, an equal amount of the 10 -acre unimproved buffer will be improved by the removal of invasive species of trees and understory similar to the original 30 acres. 7. The created depressional wetlands will be excavated to a depth of 6 to 8 inches and placed so as to best capture and hold precipitation during rainfall. 8. The created depressional wetlands will be allowed to re- vegetate naturally. If volunteer wetland plants (FAC or wetter) do not successfully cover 70 percent of the newly created isolated wetlands within two (2) years following the completion of construction of depressional areas, plants will be installed by seeding or transplanting. Plant species to be planted in the created wetlands may include Juncus spp., Cyperus spp., Eleocharis spp., and Sagittaria spp. 7qD us faA) rq c . �ri S &urt+ji 7Z"Lo 30 r, "l MITIGATION PLAN • 9. The remainder of the 30 -acre mitigation site will be planted with one gallon or larger trees and shrubs at a density of 160 trees per acre for a total of 3,200 plants. These species may include: live oak Quercus virdniana), water oak ( uercus ni a ), green ash (Fraxinus pennsylvanica), button -bush (Cephalanthus occidentalis), hawthorn (Crat_ ae zs ap.), and Southern wax - myrtle (Myrica cerifera . 10. The applicant will provide "as- built" drawings of the mitigation area to the USACE within 30 days of creation of the depressional wetlands. 11. A monitoring report will be provided to the USACE annually each October 1, following the completion of the depressional wetland creation, for four, (4) years or until two (2) consecutive years of 70 percent areal coverage of wetland species (FAC or wetter) is achieved. Each report will include percent areal coverage of wetland species (FAC or wetter), a description of the viability of the trees and shrubs installed during construction, the plant species occurring in the depressional wetlands, ground photographic documentation of the mitigation site, and a discussion of any problem observed with action items for solving the problem. 12. Success criteria for the mitigation project will be a minimum of 80 percent viability of all installed trees and shrubs and 70 percent areal coverage of wetland plant species (FAC or wetter) in the depressional wetlands created during mitigation construction. 13. Should success criteria for the created depressional areas not be met within two years, the created depressional areas will be planted with sufficient plant species until 70 percent areal coverage for two (2) consecutive years is achieved or for a maximum of two (2) plantings. A+7 44z-2,-J ' J-hhgVen #Zt(ris Coun+'-J Pale_ /o 0-1-' /D NI LL r J,77y` �a04r A -�[".l Cy -� , "r QS. '+ ► /° =0 iz :a7•+N�L '^� -�� :�IOw:5iH71 i COC /•� Y {f•' ../ nT�uT I °_I 7 / 000acs u■ ,.a� ■ r i 0 Q s _ .r.•r. �s�K � a r / ' V. - '! '•� _ ° COF• Q •++O LJ' Otw O3 rr4 � �7 � � Ylrtiu � 6NiJ+ - ° Noinaolw G c� r _ ' +°S�MOMlit- .J 1 OA +f/^.LWo e i .. ' � � •.: -• = ' � }! r O ti � ' `' �'r `)4 .y a �` 'Z � _ �- -'' � (■/�J� �I ' ��:: �! C X00 Y ° 1 h . �} J 6 +,.. J _ - • 1, • . •, a Af Ca 47 O^J ell C. Xu i 1 J —� �� _.._Try . R__ • ... x f 30 �r .� l 999 y�H� • - �-:° . - ' 1 1 is . •`: �` -`` �'�F -off': 0 STOLTHAVEN HOUSTON, INC. SCHEMATIC DRAWING OF THE MITIGATION SITE Legend White Areas: Depressional Wetlands (70% of total area) Circles: Trees and Shrubs 211�� Cris C " n4 30 4r;' l`�� • STOLT9AVEN NODS -ON, INC. SCHEMATIC DRAWING OF MITIGATION PLAN ------------ 1} 1! II ai FJCIStlrlg. rees e, e .SheUbs Wi appers-, . ........... .4• .ISOLATED DEPRES'SIONAL'.W TLANDS Shallow, isolated bep . 'r:ess'ional Wetlands will Be Excavated 6" - 8" Deep At Random Locations Throughout The Mitigation Site lAnd Allowed To Vegetate Naturally. L2 4 PLANTING. PLAN.`- -.7 160 Trees and Shrubs Per Acre Will Be Planted (24" to 36"). Each Tree and Shrub Will Be Wrapped to Prevent P I" �, � mjjyqjja-") s4e- 1'(9 Q Vm-, djus1,, In' Pdg�. 9 0 4r: , 1991 LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § THIS LICENSE AGREEMENT, made this hf day of June, 1999, by and between the CITY OF BAYTOWN, TEXAS; being a body corporate and politic and a political subdivision of the State of Texas (the "Owner") and Stolthaven Houston Inc., being a Texas corporation (the "Company"). WITNES SETH WHEREAS, Owner is the owner of the land located at Baytown, Texas, shown crosshatched as the 40-acre mitigation area in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the"Premises"); and WHEREAS, the Company has received an Army Corps of Engineers Section 404/401 permit, requiring the Company to construct 20 acres of wetlands as compensatory mitigation for wetlands; and WHEREAS, the Company has submitted a mitigation plan describing the entire project, which plan is attached hereto, labeled Exhibit "B" and incorporated herein for all intents and purposes (the"Plan"); and WHEREAS, the Company desires to perform its wetlands mitigation project (the "Project") at the Baytown Nature Center; and WHEREAS, the Owner has reviewed and approved the Plan and desires the Project to be constructed on the Premises; NOW THEREFORE, for and in consideration of the sum of ONE DOLLAR and other good and valuable consideration, the receipt whereof is hereby acknowledged, and intending to be legally bound, Owner and the Company agree as follows: 1. License. The Company shall have the right, liberty, privilege, license and authority to enter upon the Premises at any time and from time to time during the term of this Agreement and to make such alterations and improvements to the Premises and take any and all such other actions as the Company deems necessary, desirable or otherwise appropriate to implement the Project in accordance with the Plan. The rights granted herein to the Company shall include, without limitation, the right to perform construction, initial maintenance, and monitoring of the Project during the term of this Agreement. 2. Monitoring. The Company hereby agrees that it will monitor the Premises for a period of three years after the construction of the Premises has been completed and shall submit monitoring reports annually to the Owner. 4 li License Agreement,Page 1 - - i 3. Interference. The Owner agrees not to construct any buildings or structures on the Premises, which would interfere with the construction or maintenance of the Project. 4. No conveyance of interest. The Owner agrees not to grant any additional or future easements, licenses, leases or other rights of use or possession of the Premises during the term of this Agreement as would or may interfere or conflict with the Project or other activities of the Company pursuant to this Agreement. 5. Term. This Agreement shall commence on the date of execution by the Owner and shall remain in effect for three years after the completion of construction, unless cancelled by mutual agreement of the Owner and the Company or otherwise terminated by the Owner pursuant to Paragraph 13. The Owner agrees to extend this Agreement for additional terms at the request of the Company if the Company continues at the time of extension to have responsibilities for the maintenance or monitoring of the Premises under its permit from the Corps of Engineers. 6. Warranty. Owner warrants that it has good and valid title to the Premises and the lawful authority to execute this Agreement and to perform the obligations herein according to its terms. The Owner warrants and agrees to defend said title and the license granted herein from any and all claims, challenges, disputes, demands and assertions arising from any claim against or involving the title to the Premises or any interest in the Premises. 7. Representatives. The rights granted herein to the Company may also be exercised by the Company's agents, subcontractors and invitees and by the representatives of the Federal trustees, subject to the terms of this Agreement. 8. Indemnity. THE COMPANY AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER, ITS OFFICERS,, AGENTS AND EMPLOYEES (HEREINAFTER IN THIS PARAGRAPH, WHETHER SINGULAR OR PLURAL, REFERRED TO AS THE "OWNER") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND REASONABLE ATTORNEY FEES FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE PROJECT, TO THE EXTENT ANY SUCH INJURY, DEATH OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, JOINT NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY, ITS EMPLOYEES, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND/OR ASSIGNS. WITHOUT LIMITATION OF THE FOREGOING, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO License Agreement,Page 2 APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY TO THE EXTENT THAT THE INJURY, DEATH OR DAMAGE RESULTS FROM THE NEGLIGENCE OF THE OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER BY REASON OF ANY OF THE PROVISIONS CONTAINED IN THIS PARAGRAPH, THE COMPANY FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER, SUCH ACCEPTANCE NOT TO BE UNREASONABLY WITHHELD. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OF THIS AGREEMENT. 9. Assumption of responsibility. By this Agreement, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. The Company assumes full responsibility for the services performed hereunder as well as for the acts and deeds of its officers, agents and/or employees. 10. No right of arbitration. Notwithstanding anything to the contrary or apparent contrary contained in this Agreement, the Owner and the Company agree that no claims or disputes between the Owner and the Company arising out of or relating to this Agreement to any of the work shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. §§ 1-14) or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, Texas Revised Civil Statutes, Title 10, articles 224 through 249-43, provided that in the event that the Owner is subject to an arbitration proceeding notwithstanding this provision, the Company consents to be joined in the arbitration proceeding if the Company's presence is required or requested by the Owner for complete relief to be awarded in the arbitration proceeding. 11. Insurance. Throughout the term of this Agreement, the Company at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the Company's operations and/or performance under this Agreement, whether such operations and/or performance be by the Company, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The Company's insurance coverage shall be primary insurance with respect to the Owner, its officers, agents and employees. Any insurance or self-insurance maintained by the Owner, its officials, agents and employees shall be considered in excess of the Company's insurance / and shall not contribute to it. Further, the Company shall include all subcontractors as License Agreement,Page 3 additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: 1. Commercial General Liability (CGL) • General Aggregate: $1,000,000 • Products& Completed Operations Aggregate: $1,000,000 • Personal &Advertising Injury: $1,000,000 • Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy (BAP) • Combined Single Limits: $1,000,000 a. Coverage for"Any Auto." 3. Workers' Compensation: Statutory Limits • Employer's Liability: $500,000 a. Waiver of Subrogation Required. Upon execution of this Agreement, the Company shall file with the Owner valid certificates of insurance and endorsements acceptable to the Owner. Such certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least sixty (60) days' prior written notice has been given to the Owner via certified mail, return receipt requested. The Company shall also file with the Owner valid certificates of insurance covering all of its contractors and subcontractors performing any work hereunder. However, evidence of insurance for any such contractor or subcontractor shall be furnished to the Owner prior to the time that such contractor or subcontractor is to begin work on the Project. No contractor or subcontractor shall be allowed to work on the Project until evidence of insurance for such contractor or subcontractor has been furnished to and approved by the Owner. The following are general requirements which are applicable to all policies: 1. AM Best Rating of A:VII or better. 2. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. License Agreement,Page 4 3. Liability policies will be on occurrence form. 4. The Owner, its officials and employees are to be added as Additional Insureds to liability policies. 5. Upon request of and without cost to the Owner, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the Owner. Certificates of insurance showing evidence of insurance coverage shall be provided to Owner prior to execution of this Agreement. 6. Upon request of and without cost to the Owner, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to the Owner. 12. Access control. Without limitation of the provisions of the preceding paragraphs, for reasons of safety and avoidance of liability, the Company shall have the right, but not the obligation except as required by local, state or federal law, to prohibit or otherwise restrict access to the Premises by members of the pubic at the Company's discretion during the term of this Agreement. The foregoing is not intended to limit the right of inspection of the Premises from time to time by Owner's authorized representative or to limit the Owner's ability to access the Premises or to construct additional planned improvements on the Premises. 13. Termination. The Owner may terminate this Agreement at any time without cause upon a finding by the City Manager that the public health, safety and/or welfare demand such result. 14. Entire Agreement. It is understood that this Agreement contains the entire agreement between the parties and supercedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, or promises shall be binding on the parties hereto, unless the same are reduced to writing and validly executed by both parties. No verbal agreement or conversation with any officer, agent, or employee of the Owner, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 15. Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remainder of this Agreement shall not be affected thereby, and each other term of this shall be valid and enforced to the fullest extent permitted by law. 16. Binding effect. This Agreement and all obligations, rights, liberties, privileges, licenses and authorizations granted herein, as well as all representations, warranties, and obligations shall be binding upon and run to the benefit of Owner, the Company, and their respective successors and assigns. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Company and the Owner only. License Agreement,Page 5 17. Assignment. The Company shall not assign, sell or otherwise transfer any of its rights of obligations under this Agreement, in whole or in part, without the written consent of the Owner. 18. Choice of law and venue. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas, regardless of the place of execution or performance. The place of making and the place of performance for all purposes shall be deemed to be Baytown, Harris County, Texas. 19. Compliance with all applicable laws. The Company shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. 20. Independent Contractor. It is expressly agreed and understood by all parties hereto that Company is an independent contractor in its relationship to the Owner. Nothing herein contained at any time or in any manner shall be construed to effect a contract of partnership or joint venture or render any party hereto the employer or master of any other party and/or its employees, agents or representatives. All necessary personnel for the services offered shall be deemed independent contractors and/or employees of the Company. 21. Notice. All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: COMPANY Stolthaven Houston Inc. Attn. Mr. Jan-Tore Dolven General Manager Houston Terminal and Vice President Stolthaven Terminals Division P.O. Box 96438 Houston, TX 77213-6438 Fax: (281) 457-5957 OWNER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281) 420-6586 22. Non-waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. License Agreement,Page 6 23. Headings. The paragraph headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation 24. Authority. The individuals executing this Agreement warrant and represent that they are duly authorized to execute this Agreement on behalf of Owner and the Company as the binding act and agreement of Owner and the Company, respectively. 25. Agreement read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 26. Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 27. Multiple originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IN WITNESS WHEREOF, the undersigns have executed this Agreement as of this the lOtt'day of June, 1999. 1 �I/ STOLT • STO C. By: \ Signature Jan-Tore ire ven Printed Na General Manager, V. P. Title CITY OF BAYTOWN, TEXAS —) By. '1T 1ZA MONTE MERCER, City Manager License Agreement,Page 7 ATTEST: —EILEEN P.-HALL, City Clerk APPROVED AS TO FORM: I ACID RAMIREZ, SR., ttorney • STATE OF TEXAS § COUNTY OF HARRIS § Before me, Arlene M. Adams , the undersigned notary public, on this day personally appeared Jan-Tore Dolven in his capacity as General Manager, V.P. of Stolthaven Houston Inc., on behalf of such corporation, X known to me; proved to me on the oath of ; or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (✓ one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this 10 day of June, 1999. 14/U\ki, '--1.0kANA 4,04o'; „ 'Votary Public in and o the State of ARLENE tip:ADMIS s, ��, ty Puble.StaagotTexas exas WV COMMON BOO WW1 3/41t ft My commission expires: 12-09-2001 c:k1h172\Contracts\StolthavenHoustonLicense\LicenseAgreement4MitigationPlanClean.doc License Agreement,Page 8 Imi-Cf-dd IN le;ei CIbaC4.ibb4rubb3b8 b FAX NO. 2814482296 P. 02 STOLTHAVEN HOUSTON, INC: ,7- - PROPOSED BAYTOWN NATURE CENTER 40-ACRE WETLANDS MITIGATION SITE xt,,;b,+ uA " ii. ot"6 \ - Ihik 5r .o?' �eo� a \ 4 11* O lit .\ 4OACRElillt/.1 ft...ITIGATION AREA , itt 4 4w \\ " Oers freef(C/ose I . d4 droa�� O O O11 tit rS*11 ,A4 ATOW• � 41/440t , WS 4\ .o o , Okr%b r _"Ii . 1. 14‘. *& O � Fit . 1 y O dArgitt ad .7041O nt R�9 -. . 4 4( 1:11� ye ♦OeoeW*4" ar444OY/' _ 4 A � 0 00_ O MAY-27-1999 14:47 2814482296 95% P.02 ll �� • Fjcl4,b; �- 6 • • MITIGATION PLAN 1. The applicant will commence the mitigation plan within three months of issuance of the permit. Creation of depressional wetlands will be completed by October 1, 1999, and the entire mitigation plan will be completed one year from • date of permit issuance. - 2. The applicant will create 20 acres of depressional wetlands within a 30-acre mitigation area located in the Baytown Nature Center. At the request of TNRCC the applicant has agreed to set aside an additional 10 acres of uncleared upland buffer that will surround the 30-acre mitigation area. 3. Prior to land clearing(movement of soil) at the mitigation site, a wetland determination will be conducted and coordinated with the US Army Corps of Engineers (USACE) 4. If existing wetlands are located on the mitigation site, each wetland will be staked and protected from-construction activities. Wetland data forms will be completed for each wetland encountered. The (USACE)will be notified in order for field verification of these wetlands to be scheduled. 5. The mitigation area will be cut to eliminate the undesirable trees and shrubs, and the Chinese tallows will be treated with a herbicide after cutting to prevent re-sprouting. 6. Should existing wetlands within the mitigation area total greater than 2 acres, an equal amount of the 10-acre unimproved buffer will be improved by the removal of invasive species of trees and understory similar to the original 30 acres. 7. The created depressional wetlands will be excavated to a depth of 6 to 8 inches and placed so as to best capture and hold precipitation during rainfall. 8. The created depressional wetlands will be allowed to re-vegetate naturally. If volunteer wetland plants (FAC or wetter) do not successfully cover 70 percent of the newly created isolated wetlands within two (2) years following the completion of construction of depressional areas, plants will be installed by seeding or transplanting. Plant species to be planted in the created wetlands may include Juncus spp., Cyperus spp., Eleocharis spp., and Sagittaria spp. ziIY9 S7v/4P� USJ r'ic 'ri S G v el. �t-yCa a f Vie- 7 .4 /a 30 1`199 MITIGATION PLAN 9. The remainder of the 30-acre mitigation site will be planted with one gallon or larger trees and shrubs at a density of 160 trees per acre for a total of 3,200 plants. These species may include: live oak(Quercus virginiana), water oak (Quercus nigra), green ash (Fraxinus pennsylvanica), button-bush (Cephalanthus occidentalis), hawthorn (Crataegus sg.), and Southern wax- myrtle (Myrica cerifera). • 10.The applicant will provide "as-built" drawings of the mitigation area to the USACE within 30 days of creation of the depressional wetlands. 11.A monitoring report will be provided to the USACE annually each October 1, following the completion of the depressional wetland creation, for four(4)years or until two (2) consecutive years of 70 percent areal coverage of wetland species (FAC or wetter) is achieved. Each report will include percent areal coverage of wetland species (FAC or wetter), a description of the viability of the trees and shrubs installed during construction, the plant species occurring in the depressional wetlands, ground photographic documentation of the mitigation site, and a discussion of any problem observed with action items for solving the problem. 12. Success criteria for the mitigation project will be a minimum of 80 percent viability of all installed trees and shrubs and 70 percent areal coverage of wetland plant species (FAC or wetter) in the depressional wetlands created during mitigation construction. 13. 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I .-. •S�^'till r; `,. .. .~, -'-•r.•▪i'.•c'- : - .7.. •.'7rr . -- :-:.:. ,_- ..:1.•,•-::. y_ i i.'• `ri I��/AEI.• r. _ .:i1 w�.'Y:a.� ••�. -•C5l.};_ter_... TQ (Ni� STOLTHAVEN HOUSTON, INC. PC1-3 7 �� SCHEMATIC DRAWING OF THE MITIGATION SITE 30 r;1 119 Legend White Areas: Depressional Wetlands (70% of total area) Circles: Trees and Shrubs . ....... . . . ... .. -. " STOLTLIAVEN HOUS 3 INC. ON 1 . SCHEMATIC DRAWING OF .: MITIGATION PLAN • .- , . .._ . • _ • .. . . • . , ... . • • . -, • . • .: :• : . . ..:„....,•:,:::-:,..,.. ,-,••:••,• :• ,•••• . ,..-.,::„.„ .•,,. ..._-,.,. •••••-•.___. _-,,, ,,._„.....„....,„ .. . . . .,,,,,,,,,,-„,-...,,c,.:,:r.,--,..::. , r,-Irt" .- .•-7-•:•,.••••;;W- ••••-• .. ,• ..1-...i.,-•. •-.. ..;-„,.,:i•;:-.-•,.•:•.:,::::-:r."', :r..f.:i;...-:-:-:.4::::;i;:,:.•,,,z,.,:4,:• le:--1 ',... 'Xiiti. ng, t,:p;;.,' ••,....,,,-,:i.„,r,..,,, ,......,•:;•,,...--_—_..•„-.:-.-:.•:...: -,,--1k, ...--.:. - • . i..5,-.:7.•,.. • :.:•.--...-.-::::.':--. '1,7::-.::•-2-••-•:f.•....- -..:,,•--„,.-7A%---,..1.-......-:::5-•!. ...-2..;:;%,!7.':i?...,.:•,-... --....:-....•:.... : •••• ., -.....:-.;,:-•.-z ...,-..,:,:- '.:,:•:.i:.:::: .,,..:-.7%,;2-; ::;::.:11,', :e.,:_=•,,P f;:- :1'"Az :&:t ries -'r.„.!;.'----•'. -". :••••-!..- • • • ...„ -Z-J.-. •-zi:::y-z,:..-..- . .....44.,-...-..-..t..; '..... .,,,....:-.:77-,,..- . • -,.:2-.:•..,zz7:_-..-,.,.7.:4::,- ,:v...r1r ,,-.. .. .• . - , . . .... .1.-0•.‘L:-::, '•••4- ---, Installed Trees-A • ,.I.:=-. ----"" •-.,-••,1-•,--,-----.;:,.,:.,1!,.7...:.:-.-.1••••-:-:..1,-..... Shrubs Witti-Wrappers-.1 ::: ::4-.7-7t -- '...,-"..:',5,7,-:,7•:•.',7i,zi-:y.;::.!..7.1:.;:; :t;:•}g1",.71... ;71-: •.:.-7 . • . . " • 7 :.:::;•, " .:.•:17 [..2 . • • Fi"; ..... . . •...,:- 5., .-:-.'.*--• .. •7;.:1 • ' . .„ .' ' ._ • . • •.. . 1;7•;•"1 Y.- k ..., • •. 1 . ..-: ....1'.:1 ...,.. .,: • L.:,:f..-7.- -4.,z___-:.?75.-,:::- •,..--.„.:7,:,..;„.,.;-:-.-..• ISOLATED DEPRE$S10.NAL;!-.WETLANDS . .....* PLANTING PLAN •'- _. .. - - • 160 Trees and Shrubs Per Acre Will Be I, Shallow, Isolated Depressional Wetlands -I . -Planted (24" to 36"). Each Tree and will Be Excavated 6" - 8" Deep At Random I Shrub Will Be Wrapped to Prevent 'Locations Throughout The Mitigation Site i e.dation. I 'And Allowed To Vegetate Naturally. • . ' - • - • • pig/A • . , A.c. sfoi+-havvi tttuslaYi/J- . /4,,,,y5 6ivvv1, 30 A-pr: '1 1999 / ,(.