HomeMy WebLinkAbout07-20-06 Regular Meeting and Public Hearing of the La Porte Planning and Zoning Commission
Minutes of the Meeting
Members Present:
Members Absent:
City Staff Present:
PLANNING AND ZONING COMMISSION
MINUTES OF JULY 20, 2006
Pat Muston, Nick Barrera, Dottie Kaminski, Paul Berner, Claude Meharg,
and Hal Lawler (Alt. 1)
Kirby Linscomb Jr., Doretta Finch, and Les Bird (Alt 2)
Planning Director, Wayne J. Sabo; City Planner, Masood Malik; Assistant
City Attorney, Clark Askins; and Planning and Zoning Secretary, Shaye
Bradley
1. CALL TO ORDER.
Meeting called to order by Chairperson Muston at 6:00 p.m.
2. CONSIDER APPROVAL OF THE MINUTES OF THE JUNE 15, 2006, REGULAR
MEETING AND PUBLIC HEARING.
Motion by Dottie Kaminski to approve the Minutes of June 15, 2006. Second by Paul
Berner. The Motion carried.
Ayes:
Nays:
Abstain:
Muston, Lawler, Barrera, Berner, Meharg and Kaminski.
None
None
3. CONSIDER A REPLAT OF JV ADDITION, A SUBDIVISION OF 37.494 ACRES OF
LAND IN THE ENOCH BRINSON SURVEY, ABSTRACT NO.5, LA PORTE, HARRIS
COUNTY, TEXAS. THE PROPERTY IS LOCATED AT 2215 SENS ROAD.
The Staff Report was given by Masood Malik, City Planner. The applicant is replatting
37.5 acres of land into two restricted Reserves for Business/Industrial activities along
Sens Road in the City of La Porte. The owner has proposed a replat of 24.797 acres
(1,080,167 sq. ft.) as Reserve 'A' and 12.697 acres (553,062 sq. ft.) as Reserve 'B'.
There are existing buildings south of utility easements in Reserve 'A'. In addition, a 20'
wide strip has been dedicated to the public for the Sens Road widening.
Brian Moore of 530 S. Broadway, contractor, addressed the Commission. Mr. Moore
confirmed that the owner proposed a replat to divide the land into two restricted
Reserves.
Motion by Nick Barrera to approve replat of JV Addition located at 2215 Sens Road.
Second by Dottie Kaminski. The Motion carried.
Ayes:
Nays:
Abstain:
Muston, Lawler, Barrera, Berner, Meharg and Kaminski.
None
None
4. OPEN PUBLIC HEARING TO RECEIVE CITIZEN INPUT ON SPECIAL CONDITIONAL
USE PERMIT REQUEST #SCU06-004 FOR 20.220 ACRES OF LAND BEING
RESERVE 'c' OUT OF 206.990 ACRES OF LAND LOCATED SOUTH OF STATE
HIGHWAY 225 ALONG OLD UNDERWOOD ROAD, IN THE ENOCH BRINSON
SURVEY, ABSTRACT 5, LA PORTE, HARRIS COUNTY, TEXAS AS REQUESTED BY
Planning and Zoning Commission
Minutes of July 20, 2006
Page 2 of5
CLAY DEVELOPMENT AND CONSTRUCTION, INC., FOR DEVELOPMENT OF
OFFICEIWAREHOUSE FACILITY IN THE UNDERWOOD BUSINESS PARK.
Chairperson Muston opened public hearing at 6:10 p.m.
A.
STAFF PRESENTATION
The Staff Report was given by Masood Malik, City Planner. The
applicant, Clay Development & Construction Inc. has requested a
Special Conditional Use Permit for development of an office/warehouse
facility within Underwood Business Park.
Six notices of public hearing were mailed to adjacent property owners.
The city received no responses favoring or opposing approval.
Mr. Malik responded to questions from the Commission. Staff
recommended approval of the special conditional use permit with
conditions.
B.
PROPONENTS
There were none.
C.
OPPONENTS
There were none.
5. CLOSE OF PUBLIC HEARING.
Chairperson Muston closed public hearing at 6:20 pm.
6. CONSIDER RECOMMENDATION TO CITY COUNCIL REGARDING SPECIAL
CONDITIONAL USE PERMIT REQUEST #SCU06-004 FOR 20.220 ACRES OF LAND
BEING RESERVE 'c' OUT OF 206.990 ACRES OF LAND LOCATED SOUTH OF
STATE HIGHWAY 225 ALONG OLD UNDERWOOD ROAD, IN THE ENOCH BRINSON
SURVEY, ABSTRACT 5, LA PORTE, HARRIS COUNTY, TEXAS AS REQUESTED BY
CLAY DEVELOPMENT AND CONSTURCTION, INC., FOR DEVELOPMENT OF
OFFICEIWAREHOUSE FACILITY IN THE UNDERWOOD BUSINESS PARK.
Motion by Nick Barrera to recommend to City Council, approval of Special Conditional
Use Permit #SCU06-004 for 20.220 acres of land being Reserve 'C' out of 206.990 acres
of land located south of State Highway 225 along Old Underwood Road, with the
following conditions:
1. This Special Conditional Use Permit (SCUP) is not applicable to any
specific development anticipated or proposed by the General Plan.
2. This SCUP outlines, in general terms, the proposed Planned Unit
Development. The developer recognizes and understands that any
future construction or development of the private or public
improvements anticipated by this SCUP and the General Plan shall
require further submittal and approval of plats, site plans,
construction drawings, engineering analysis, covenants, etc.
Planning and Zoning Commission
Minutes of July 20, 2006
Page 3 of5
3. Provide on-site improvements, loading and unloading ramps/bays
that adequately handle the volume associated with this
office/warehousing facility.
4. Fire truck access, fire suppression requirements, and fire hydrant
placement shall be specified on the plans.
5. A site plan and/or separate plans shall be submitted in conjunction
with the building permit application. Landscaping is required in
percentages specified in Section 106-522 of the Code of Ordinances.
6. Provide an irrigation system to ensure that all landscaping and
screening is properly maintained by the owner/developer.
7. The Developer shall comply with all other applicable laws and
ordinances of the City of La Porte and the State of Texas.
Second by Dottie Kaminski. The motion carried.
Ayes:
Nays:
Abstain:
Muston, Lawler, Barrera, Berner, Meharg and Kaminski.
None
None
7. OPEN PUBLIC HEARING TO RECEIVE CITIZEN INPUT ON SPECIAL CONDITIONAL
USE PERMIT REQUEST #SCU06-003 FOR 20.77 ACRES OF LAND BEING RESERVE
'B' OUT OF 296.986 ACRES OF LAND IN THE GEORGE B. MCKINSTRY SURVEY, A-
47; WILLIAM P. HARRIS SURVEY, A-30; JOHNSON HUNTER SURVEY, A-35; LA
PORTE, HARRIS COUNTY, TEXAS. RUSSELL PLANK, PORT CROSSING, L.P. IS
SEEKING APPROVAL OF A SPECIAL CONDITIONAL USE PERMIT FOR PROPOSED
DEVELOPMENT OF OFFICE DISTRIBUTION CENTER BUILDING B5 IN THE PORT
CROSSING BUSINESS PARK.
Chairperson Muston opened public hearing at 6:21 pm.
A.
STAFF PRESENTATION
The Staff Report was given by Masood Malik, City Planner. The
applicant, Russell Plank has requested a Special Conditional Use Permit
for development of an office/warehouse facilitx within the proposed
business industrial park to be located along S. 16t Street.
B.
PROPONENTS
Russell Plank, the applicant, addressed the Commission. Mr. Plank
addressed the issue of additional truck traffic that would possibly be
added to the area.
C.
OPPONENTS
There were none.
8. CLOSE OF PUBLIC HEARING.
Chairperson Muston closed the public hearing at 6:35 pm.
9. CONSIDER RECOMMENDATION TO CITY COUNCIL REGARDING SPECIAL
CONDITIONAL USE PERMIT REQUEST #SCU06-003 FOR 20.77 ACRES OF LAND
BEING RESERVE 'B' OUT OF 296.986 ACRES OF LAND IN THE GEORGE B.
Planning and Zoning Commission
Minutes of July 20, 2006
Page 4 of5
MCKINSTRY SURVEY, A-47; WILLIAM P. HARRIS SURVEY, A-30; JOHNSON HUNTER
SURVEY, A-35; LA PORTE, HARRIS COUNTY, TEXAS. RUSSELL PLANK, PORT
CROSSING, L.P. IS SEEKING APPROVAL OF A SPECIAL CONDITIONAL USE PERMIT
FOR PROPOSED DEVELOPMENT OF OFFICE DISTRIBUTION CENTER BUILDING B5 IN
THE PORT CROSSING BUSINESS PARK.
Motion by Hal Lawler to recommend to City Council, approval of Special Conditional Use
Permit #SCU06-004 for 20.77 acres of land being Reserve 'B' out of 296.986 acres of
land in the George B. McKinstry Survey, A-47; William P. Harris Survey, A-30: Johnson
Hunter Survey, A-3S; La Porte, Harris County, Texas, with the following conditions.
1. This Special Conditional Use Permit does not go into effect until
elements and supporting documents contained therein are submitted
to the Commission and approved by the City.
2. This SCUP is not applicable to any other specific development
anticipated or proposed by this General Plan.
3. This SCUP outlines in general terms the proposed Planned Unit
Development. The developer recognizes and understands that any
future construction or development of the private or public
improvements anticipated by this SCUP and the General Plan shall
require further submittal and approval of plats, site plans,
construction drawings, engineering analysis, covenants, etc.
4. Said submittals shall be in accordance with the SCUP, the approved
General Plan, and the approved Development Agreement.
5. The Developer shall comply with all other applicable laws and
ordinances of the City of La Porte and the State of Texas.
Second by Dottie Kaminski. The motion carried.
Ayes:
Nays:
Abstain:
Muston, Lawler, Barrera, Berner, Meharg and Kaminski.
None
None
10. ADMINISTRATIVE REPORTS
Wayne Sabo
. Commission Members will soon receive via mail, a copy of the Covenants,
conditions, and Restrictions and the Development Agreement for Port
Crossing. They are currently being reviewed by the City Attorney.
Masood Malik
. BAMIA will be scheduling a workshop for Planning & Zoning and Board of
Adjustment Members in the month of August. Members will be contacted
with registration information.
· Mandatory Training-The pamphlets received are regarding the 2006 Open
Meeting Act. The City has two fifty-five minute videos for review by Planning
and Zoning members. The first video will be shown at the next meeting on
August 17,2006.
. Due to Budget Meetings with the City, the Council Chambers will be
occupied for the August meeting. The meeting will be held in the classroom
of the Recreation Center.
Planning and Zoning Commission
Minutes of July 20, 2006
Page 5 of5
New Business
. Chili's-To be located at Summerton and Spencer
. Preliminary Talks-Small strip center at Driftwood and Fairmont.
11. COMMISSION COMENTS
There were none.
12. ADJOURN
The meeting was adjourned at 6:50 pm.
ommission
day of 0/2006.
Port Crossing
(Final Plat)
Exhibits
A. Commission's Action Request
B. Aerial Map
C. Staff Report
D. Final Plat
Port Crossing - Final Plat
Planning and Zoning Commission
August 17, 2006
A Hcant
Present Zonin
Project Name
Acreage
Surrounding Zoning
2000 Block of S. 16t Street owell Road
Approx. 300 acre tract of land situated in the
George B. McKinstry League, Abstract 47, La
Porte, Harris Count ,TX.
Port Crossin Land, L.P. c/o Russell Plank
Planned Unit Develo ment (PUD
Port Crossing
286.7 acres
North Planned Unit Development
East Planned Unit Development
South Planned Unit Development
West Planned Unit Develo ment
Commercial/lndustrial
Retail/Commercial/lndustrial Business Park
Summary:
. The proposed business park has an approved General Plan and Special Conditional Use Permit.
Preliminary Plat for Port Crossing was approved May 25, 2006. The current submittal is a Final Plat of this
development.
. The subject property is located along South 16th Street (Powell Road), one block south of West "M" Street
between Union Pacific Railroad and State Highway 146.
. The owner/developer is proposing a commercial/industrial warehouse and business park at this site. These
uses comply with the approved General Plan.
. The plan shows two driveways north and south of the detention basin along Powell Road.
. A pump station is proposed for the detention system, which will be temporary. Once Powell Road is
widened to 100', it will be connected through gravity to regional detention south of Wharton Weems Blvd.
and outfall to Taylor Bayou.
Recommendation:
Staff reviewed the Final Plat and found it to be in conformance with the Development Ordinance. However,
the approved General Plan, Special Conditional Use Permit, and Development Agreement are the prevailing
documents to be used as a guideline for the development of an entire project. Staff recommends approval of
the Final Plat but notes that the following must occur prior to plat recordation:
. Final Plat shall not be released until property transactions are complete and proper documents are filed
with the City.
. Construction drawings must be complete prior to issuance of building permits.
. Add the following statement on the plat: "Developer shall dedicate 40' wide strip to the East for the future
widening of Powell Road."
. Dedication of other public right-of-ways, i.e. Export Drive, Wharton Weems Blvd., and southern extension
of Powell Road should be stated on the plat.
. The Drainage Plan requires approval by Harris County. The detention pond, and maintenance thereof,
shall be the sole responsibility ofthe owner/developer.
. Provisions of the approved Special Conditional Use Permit, General Plan, and Development
Agreement are applicable and must be applied to the entire project.
Options available to the Commission are as follows:
. Approve the Final Plat withholding signature and recordation until the above are complied. This will
authorize the developer to begin construction of subdivision improvements.
. Disapproval of the Final Plat and supporting documents as filed. This will require the developer to file a
new Final Plat with the required documents.
SXHIBlT A
Staff Report
Final Plat
Port Crossing Business Park
August 17, 2006
ReQuested Bv:
ReQuested For:
ReQuested Use:
Present Zonine::
Location:
Backe:round:
Russell Plank, Port Crossing Land, L.P.
National Property Holdings, L.P.
F.L.P.Candle GP, Inc.
Del Pi so Investment, L.L.P.
A 286.7 acres of land out of the George B. McKinstry League, Abstract 47,
William P. Harris Survey, Abstract 30, and Johnson Hunter Survey, Abstract
35, La Porte, Harris County, Texas.
BusinesslIndustrial, Commercial
Planned Unit Development (PUD)
South 16th Street (powell Road)
The owner/developer plans to develop approximately 300 acres, presently
zoned Planned Unit Development (PUD) for retail, commercial, and
business park with some industrial uses, further defined by a General Plan
and Development Agreement between the owner/agent and the City of La
Porte. The project is to be located in an area south of Fairmont Parkway
along S. 16th Street (Powell Road) between the existing Union Pacific
Railroad (UPRR) and State Highway 146 South.
As a part of the PUD development process, a Special Conditional Use Permit
(#SCU05-003) and a General Plan covering the La Porte 81 Ltd., La Porte
82 Ltd., La Porte 115 Ltd., and La Porte 146 Venture, LP., (formerly Texas
Import/Export Park) were approved by City Council on March 28, 2005.
Subsequently, the applicant requested a one year extension of this Special
Conditional Use Permit, which was granted by the Planning and Zoning
Commission at the February 16,2006, meeting.
Under the terms of Development Ordinance 1444, the proposed
development is considered to be a major subdivision. The Development
Ordinance requires a two-stage approval process for major subdivisions.
The first stage is preliminary plat review and its formal approval followed
by submittal of a final plat, along with the construction drawings and other
applicable documents. Once the final plat is approved, the applicant may
proceed with site improvements.
IXHtB1T C
Port Crossing
Final Plat
Page 2 of4
The applicant is currently proceeding with the platting of the entire
project. This is the first step towards the planning and development of a
large scale project. The developer's intent is to develop the entire tract in
accordance with the applicable Special Conditional Use Permit, General
Plan, and Development Agreement approved by the City. The
applicant/developer submitted a Preliminary Plat for Port Crossing, which
was approved by the Commission on May 25, 2006.
Analvsis:
Section 4.03 and Appendix D of the City's Development Ordinance establish
review criteria for major subdivisions. Staff also used criteria in the City's
Zoning Ordinance and Comprehensive Plan to review this project.
Land Use - The developer's intent is to develop the proposed reserves with
underlying land uses as per the approved General Plan and the Development
Agreement contemplating with some industrial components consistent with
the City's Land Use Plan (subject to certain exceptions listed in the
Development Agreement). The plat's significant features include: fifteen
restricted reserves with underlying land uses (permitted in General
Commercial (GC), Business Industrial (BI), Light Industrial (Ll), Heavy
Industrial (HI);) open space and storm water detention areas, landscape
buffers, roadway network, construction of Export Drive (60'ROW),
Wharton Weems Boulevard (lOO'ROW) and widening of Powell Road to
100' ROW as the project proceeds.
The Developer's Agreement defines the land uses that are acceptable within
various reserves of this proposed development. In Reserve "I", Heavy
Industrial (HI) uses are permitted with some limitations including rail
activities. Trucking operations and shipping containers that are in transit or
are being used to deliver material into or out of this development would be
permitted. The further use of these reserves shall be reviewed with the
formal site plan submittal.
Landscaping/Open Space - The General Plan shows the relationship of
landscape, open space and also demonstrates how the trail system, open
space area, and the stormwater detention system are interrelated. The City
may elect to accept these facilities depending on the final design of the said
project. Buffering and beautification are also addressed in the General Plan.
A 100' wide landscape buffer, building line, and utility easement are
provided for Section 1 to be located along Powell Road. The final plat of
this section was previously approved earlier by the City. A 50' landscaping
buffer including building line and utility easements will be provided along
Powell Road south of Section 1 up to McCabe Road. In addition, a 50'
landscape buffer, building line, and utility easement are shown along State
Highway 146 South. The hike and bike trail along detention basins and
drainage channel shall be provided along with landscaping within building
setback areas and easements throughout this development in compliance
with the approved General Plan and as stated in the Development
Agreement.
Port Crossing
Final Plat
Page 3 of4
Conclusion and
Recommendation:
Transportationffraffic Control Plan - Truck traffic is typically associated
with this type of commercial and industrial development. In an attempt to
reasonably control truck traffic, a traffic plan has been completed. The plan
shows that all trucks will enter and leave the site via State Highway 146 and
Wharton Weems Blvd., and no trucks will proceed north along S. 16th Street
(Powell Road) to Fairmont Parkway. Signs, driveway design, routing plans,
and individual driver instructions will be used to implement these provisions.
More specific review of the traffic plan will occur during site plan review as
subsequent reserves develop. In accordance with the General Plan, Powell
Road will be widened to a 100' ROW up to Wharton Weems Boulevard and
extended to McCabe Road with 60' ROW. It is noted that the southwest
section of existing Powell Road will be abandoned by Harris County.
Owner/developer is coordinating with Harris County on the subject matter.
Utilities, Drainage - Public utilities/services need to be extended to
facilitate an entire park. Staff and the developer have agreed that the water
system needs to be upgraded to provide suitable fire protection. The existing
waterline is 8" on the west side of Powell Road parallel with a pipeline
easement. A proposed 12" waterline is shown on the east side of Powell
Road. There is a 12" waterline at southbound 146 and M Street ROW. The
capacity is adequate and fire flow is estimated at 1500 gpm. Sanitary sewer
service would be provided through the existing 12" sanitary sewer line
located to the northeast of the development along Powell Road. Proposed
sanitary sewer service will be 18". Storm water facilities will be designed in
accordance with the City of La Porte and Harris County Flood Control
District requirements. The design of the storm water detention basin will be
reviewed with the construction drawings.
The approved Special Conditional Use Permit (#SCU05-003), General Plan,
and Developer's Agreement are still the prevailing documents for this
development. Staff reviewed the Final Plat for Port Crossing and found it to
be in compliance with the Development Ordinance. The following items
need to be addressed prior to the recordation of the Plat:
· Covenants, Conditions, and Restrictions (CCRs) must be approved by
the City Attorney prior to the recordation of the final plat.
. Provisions of the approved SCUP, General Plan, and Development
Agreement are applicable and must be applied to the entire project.
· Construction drawings shall be approved by the City prior to the issuance
of building permit.
· Final construction drawings (as built) shall be submitted to the City prior
to the formal acceptance of the business park.
· TxDOT approval shall be required for road network and crossing of
public utilities in the area.
. The Drainage Plan requires approval by Harris County. The detention
pond/drainage channel construction and maintenance will be the sole
responsibility of the owner/developer.
Port Crossing
Final Plat
Page 4 of 4
Options available to the Commission are as follows:
. Approval of the Final Plat withholding signature and recordation until
the above are complied. This will authorize the developer to begin
construction ofthe subdivision improvements.
. Disapproval of the Final Plat and supporting documents as filed. This
will require the developer to file a new Final Plat with the required
documents.
Special Conditional Use Permit
#SCU06-005
, Exhibits
A. Commission's Action Request
B. Aerial Map
C. Staff Report
D. Draft SCUP
E. Site Plan
Special Conditional Use Permit #SCU06-005
Planning and Zoning Commission
August 17, 2006
Land Use Plan
Activit Pro osed
Reserve G out of a
A licant
Present Zonin
Acreage
Surrounding Zoning
Development (PUD) and Light
Summary:
. Applicant is requesting a Special Conditional Use Permit for developing a distribution/warehouse facility within
Underwood Business Park.
. Underwood Business Park is located along Old Underwood Road south of State Highway 225.
. Underwood Business Park is to be developed in phases. Project started with the development of "Poly One"
located at 10100 Porter Road. Later, development plans for 900,000 sq. ft. and 400,000 sq. ft
distribution/warehousing buildings were approved and these buildings are under construction.
. The subject property is zoned Planned Unit Development (PUD) and per ordinance requires a Special
Conditional Use Permit (SCUP).
. Proposed project will be located along Pike Court off of Porter Road, a 60' ingress/egress and utility easement
within the business park.
. Battleground Industrial Park is located to the north of this property.
. Property is in the vicinity of major industrial developments.
. Area is earmarked for industrial uses in the Land Use Plan.
. Overall impact on public services should be minimal.
Recommendation:
All applicable elements of the Comprehensive Plan were reviewed and incorporated into this development
proposal. Staff recommends the Special Conditional Use Permit with the following conditions:
1. This Special Conditional Use Permit is not applicable to any other specific development anticipated or
proposed by the General Plan.
2. This SCUP outlines, in general terms, the proposed Planned Unit Development. The developer recognizes
and understands that any future construction or development of the private or public improvements
anticipated by this SCUP and General Plan shall require further submittal and approval of plats, site plans,
construction drawings, engineering analysis, and covenants, conditions & restrictions (CCR).
3. Provide on-site improvements, loading and unloading ramps/bays that adequately handle the volume
associated with this office/ warehousing facility.
4. Fire truck access, fire suppression requirements, and fire hydrant placement shall be specified on the plans.
5. A site plan and/or separate plans shall be submitted in conjunction with the building permit application.
Landscaping is required in percentages specified in Section 106-522 of the Code of Ordinances.
6. Provide an irrigation system to ensure that all landscaping and screening is properly maintained by the
owner/developer.
7. The Developer shall comply with all other applicable laws and ordinances ofthe City of La Porte and the
State of Texas.
Actions required by the Commission:
. Recommend to Council approval of this SCUP with conditions.
. Recommend to Council denial of this SCUP.
. Recommend tabling this SCUP for further review.
SXHJB1T A
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Staff Report
August 17, 2006
ReQuested by:
ReQuested for:
Location:
Present Zonin2:
ReQuested Use:
Baclmround:
Analvsis:
Underwood Distribution Center II
Special Conditional Use Permit #SCU 06-005
Clay Development & Construction Inc.
c/o Danny Martin
46.141 acre tract out of 206.990 acres of land in the Enoch Brinson
Survey, Abstract 5, described as parcel 1 under the Harris County
Clerk's File No. M032856, La Porte, Harris County, Texas.
Old Underwood Road and State Highway 225
Planned Unit Development (PUD)
Distribution Warehouse
Underwood Business Park, consisting of approximately 207 acres, is
located to the south of State Highway 225 and Union Pacific Railroad
(UPRR). The subject park is an approved business/industrial complex
located within the Planned Unit Development (PUD) zone along Old
Underwood Road. Clay Development and Construction, Inc.,
owner/developer, is proposing a distribution center consisting of
733,800 sq. ft. on a parcel of land being all of Reserve G in the
Underwood Business Park. The facility will have an entrance along
Pike Court, off Porter Road, 60' wide ingress/egress and utility
easement within the park off Old Underwood Road. Major access to the
park is through Battleground Road and State Highway 225.
This is an on going project that started with the construction of Poly
One and later the plans for 900,000 sq. ft., and 400,000 sq. ft.,
distribution/warehousing buildings were approved by the city
The subject property is zoned Planned Unit Development (PUD).
Development in a PUD zoning district requires an application for a
general plan be filed and processed simultaneously with the Special
Conditional Use Permit.
Section 106-659 of the Code of Ordinances establishes the following
criteria for review ofthe development projects within a PUD zone.
Land Use - The City's Land Use Plan shows this area developing with
industrial uses. The existing land uses of nearby properties are
predominantly industrial. The Battleground Industrial Park is located
just north of this development. In addition, the Battleground Industrial
District - Extra Territorial Jurisdiction (ETJ) of La Porte is located
north of State Highway 225.
auB1T '0
Underwood Distribution Center II
SCU #06-005
8/17/06 P&Z
Page 2 of3
Transportation - The project is located near State Highway 225 and
Battleground Road, a primary arterial and major truck route. As a
result, this project provides more than adequate accessibility for
circulation of traffic. All traffic entering/existing will be through Porter
Road along Old Underwood Road. There should be limited impact on
traffic flow within the vicinity, even after full implementation of the
said business park. In addition, the traffic shall not be directed south of
Underwood Road as per plan submitted by the developer.
Topography - This area is relatively flat and stable and should not be
an obstacle to this type of development.
Utilities and Drainage - Public facilities and services are sufficient to
handle the supply of potable water. The developer has installed a new
water line for fire protection in the area. In addition, provisions must be
made to ensure sufficient utility extensions are provided to serve this
development. Storm water drainage will be managed by on-site
detention to mitigate any adverse impacts associated with this proposed
development.
Conclusion/
Recommendation
Staff feels that the project has potential and would make a significant
impact on economic development within the City of La Porte. Based
on the above analysis, staff recommends approval of the Special
Conditional Use Permit with the following conditions:
. This Special Conditional Use Permit is not applicable to any other
specific development anticipated or proposed by the General Plan.
. This SCUP outlines, in general terms, the proposed Planned Unit
Development. The developer recognizes and understands that any
future construction or development of the private or public
improvements anticipated by this SCUP and General Plan shall
require further submittal and approval of plats, site plans,
construction drawings, engineering analysis, and covenants.
. Provide on-site improvements, loading and unloading ramps/bays
that adequately handle the volume associated with this
distribution / warehousing facility.
Underwood Distribution Center II
SCU #06-005
8/17/06 P&Z
Page 3 of3
. Fire truck access, fire suppression requirements, and fire hydrant
placement shall be specified on the plans.
. A site plan and/or separate plans shall be submitted in conjunction
with the building permit application. Landscaping is required in
percentages specified in Section 106-522 of the Code of Ordinances.
. Provide an irrigation system to ensure that all landscaping and
screening is properly maintained by the owner/developer.
. The Developer shall comply with all other applicable laws and
ordinances of the City of La Porte and the State of Texas.
Options available to the Commission are:
. Recommend to Council approval of this SCUP with additional
conditions.
. Recommend to Council denial of this SCUP.
. Recommend tabling this SCUP for further review.
Draft
City of La Porte
Special Conditional Use Permit # SCU 06-005
This permit is issued to:
Clav Development & Construction. Inc.
Owner or Agent
800 Gessner. Suite 850. Houston TX 77024
Address
For Development of:
Underwood Distribution Center II (733.800 SF.)
Development Name
Old Underwood Road at State Hiohwav 225
Address
Legal Description:
46.141 acres of land beino Reserve lOG" in a 206.990 acre tract
Out of Enoch Brinson Survey. A-5. La Porte. Harris County. TX.
Zoning:
Planned Unit Development (PUD)
Use:
Distribution/warehousino facilitv
Permit Conditions:
1. This Special Conditional Use Permit (SCUP) is not applicable to any other specific development
anticipated or proposed by General Plan.
2. This SCUP outlines, in general terms, the proposed Planned Unit Development. The developer
recognizes and understands that any future construction or development ofthe private or public
improvements anticipated by this SCUP and General Plan shall require further submittal and
approval of plats, site plans, construction drawings, engineering analysis, and covenants,
conditions & restrictions (CCR).
3. Provide on-site improvements, loading and unloading ramps/bays that adequately handle the
volume associated with this office/ warehousing facility.
4. Fire truck access, fire suppression requirements, and fire hydrant placement shall be specified on
the plans.
5. A site plan and/or separate plans shall be submitted in conjunction with the building permit
application. Landscaping is required in percentages specified in Section 106-522 of the Code of
Ordinances.
6. Provide an irrigation system to ensure that all landscaping and screening is properly maintained
by the owner/developer.
7. The Developer shall comply with all other applicable laws and ordinances of the City of La
Porte and the State of Texas.
Failure to begin construction within 12 months after issuance or as scheduled under the terms of a special
conditional use permit shall void the permit as approved, except upon an extension of time granted after
application to the Planning and Zoning Commission.
If construction is terminated after completion of any stage and there is ample evidence that further development is
not contemplated, the ordinance establishing such special conditional use permit may be rescinded by the City
Council, upon its own motion or upon the recommendation of the Planning and Zoning Commission of the City of La
Porte, and the previous zoning of the entire tract shall be in full effect on the portion which is undeveloped.
Validation Date:
City Secretary
Director of Planning
IXHIBJT T
Special Conditional Use Permit
#SCU06-006
Exhibits
A. Commission's Action Request
B. Aerial Map
C. Staff Report
D. Development Agreement
E. Metes & Bounds Description
F. General Plan
G. Land Use Exceptions
H. Covenants, Conditions, & Restrictions
I. Traffic Control Plan
J. Draft SCUP
K. Public Notice Response
Special Conditional Use Permit #SCU06-006
Planning and Zoning Commission
August 17, 2006
2000 Block of Powell Road South 16th Street
George B. McKinstry, A-47; W.P. Harris Survey,
A-30; Johnson Hunter Survey, A-35; City of La
Porte, Harris Count , Texas
Port Crossin Land, L.P.
Planned Unit Develo ment PUD
Approx. 300 acres
Planned Unit Development (PUD) and Light
Industrial LI
IndustriaVCommercial
IndustriaVCommerciaVRetail
Summary:
. Port Crossing, a mixed commercial/retail and business industrial development, is to be located along South
16th Street (Powell Road) between State Highway 146 and Union Pacific Railroad within Planned Unit
Development (PUD) zone.
. The property is in the vicinity of major industrial developments, Bayport Industrial District, Bayshore
Industrial, Inc. and located between State Highway 146 and Union Pacific Railroad (UPRR).
. Proposed Business Park will be developed in phases.
. The First Phase, Section 1, will be developed to the West of Powell Road just south of the former
Boncosky Trucking terminal at 1706 S. 16th Street.
. City Council previously approved Special Conditional Use Permit #SCU05-003 for Port Crossing
(formerly Texas Import/Export Park).
. Further developments will be warehouse, distribution center equipped with UPRR access to the west, and
several other industriaVcommercial developments within the park.
. The area is earmarked for industrial uses in the Land Use Plan.
. Public infrastructure needs to be installed for the overall business park as prescribed by the Development
Agreement. Coordination with Harris County, Harris County Flood Control District, and TxDOT shall be
required in this regard.
. Final Plat for Port Crossing with construction drawings, covenants, conditions, and restrictions for the
proposed park shall require approval by the City.
Recommendation:
Given that we now see some forward movement on the development in general, Staff recommends approval of
Special Conditional Use Permit #SCU06-006. If approved, this permit will supersede Special Conditional Use Permit
#SCU05-003 and shall be applicable for an overall development in conjunction with the Development Agreement and
CCRs. Staff and the developer agree that Development Agreement, and all supporting documents contained therein
will be presented in final form and that this SCUP does not go into effect until all elements are considered by the
Commission and approved by the City. Should the Commission wish to approve the SCUP in its present format, we
recommend the following:
1. This SCUP is not applicable to any other specific development anticipated or proposed by General Plan.
2. This SCUP outlines in general terms the proposed Planned Unit Development. The developer recognizes and
understands that any future construction or development of the private or public improvements anticipated by
this SCUP and the General Plan shall require further submittal and approval of plats, site plans, construction
drawings, and building plans.
3. Said submittals shall be in accordance with this SCUP, the approved General Plan, Development Agreement,
the City of La Porte and specifically Section 106-216 & 217 of the Zoning Ordinance.
4. The Developer shall comply with all other applicable laws and ordinances of the City of La Porte and the State
of Texas.
Actions required by the Commission:
. Recommend to Council approval of this SCUP with conditions.
. Recommend to Council denial of this SCUP.
. Recommend tabling this SCUP for further review.
BHtBIT 1
Staff Report
August 17, 2006
Request:
Requested Bv:
Requested For:
Present Zonine::
Requested Use:
Back1!round:
Port Crossing
Special Conditional Use Permit #SCU06-006
Special Conditional Use Permit (SCUP) #06-006, Proposed Development
within Planned Unit Development (PUD) Zone
Port Crossing Land, L.P.
National Property Holdings, L.P.
Del Piso Investment, LLLP.
FLPCW, L.P.
c/o Russell Plank
Approximately 300 acre tract in the Geo B. McKinstry, A-47; W. P. Harris
Survey, A-30; Johnson Hunter Survey, A-35, City of La Porte, Harris
County, Texas. The property is located in the 2000 Block of South 16th
Street (powell Road).
Planned Unit Development (PUD)
Industrial, Commercial and Retail
Port Crossing is a proposed industrial, commercial and retail development to
be located in an area south of Fairmont Parkway between the existing Union
Pacific Railroad tracks and State Highway 146 South.
As a part of the PUD development process, the applicant previously
submitted a Special Conditional Use Permit and a General Plan covering the
La Porte 81 Ltd., 82 Ltd., and 115 Ltd., and Daetwyler Enterprises. The
Planning and Zoning Commission initiated a public hearing for the SCUP
and General Plan on July 21, 1998 and concluded that public hearing on
August 20, 1998.
On March 3, 1999, the Commission unanimously recommended approval of
the SCUP, General Plan, and the Development Agreement. On March 15,
1999, City Council approved the General Plan, SCU#98-001, and the
Development Agreement. Only Mr. Stuart Haynsworth, General Partner of
La Porte 81 Ltd., 82 Ltd., and 115 Ltd. executed the agreement with the City.
Daetwyler Enterprises, another partner, did not execute the Development
Agreement. On April 27, 2000, the Commission granted a one (1) year
extension for SCU#98-001.
In February 2002, Mr. Haynsworth initiated a request to re-authorize the
General Plan, Development Agreement and SCUP. The applicant's
request was essentially a repeat of the previously approved SCU#98-001Iess
the Daetwyler Enterprises properties.
At the May 16, 2002 meeting, the Planning and Zoning Commission held
a public hearing to re-authorize the General Plan, Development
Agreement and Special Conditional Use Permit SCU#02-002. On June
1rHIB1T C
SCU06-006
August 17, 2006
Page 2 of8
Analvsis:
10, 2002, City Council approved General Plan, Development Agreement
and SCU#02-002. Later on, a one year extension was subsequently
granted in June 2003 which expired in June 2004.
Owner/developer submitted another application for Special Conditional
Use Permit SCU#04-011. The Planning and Zoning Commission, at their
meeting on June 17, 2004, held a workshop and discussed the following
issues:
. Site plan submittal
. Dedication/improvement to Powell Rd.
. Phase I-A development (strip of land contiguous to UPRR
containing two rail lines )
. Phase I development (first warehouse, with rail access)
. Access from Powell Rd. Traffic flow concept for entire project
The outstanding issues were too complex to come to any conclusion at that
time. In addition, the subject property was under litigation. Therefore, the
application was withdrawn.
As a part of the Planned Unit Development (PUD) development process, a
Special Conditional Use Permit SCU#05-003 and General Plan covering the
La Porte 81 Ltd., La Porte 82 Ltd., La Porte 115 Ltd., and La Porte 146
Venture, LP., (c/o Russell Plank) were approved by City Council on March
28, 2005. Later, the applicant requested a I-year extension of this Special
Conditional Use Permit, which was granted by the Planning and Zoning
Commission at the February 16, 2006, meeting.
This is an ongoing project that is to be developed in phases. As the project
proceeds, it shows progress with the new developers. The applicant
submitted a preliminary plat for Phase I, Section 1 consisting of 12.342
acres. The subject plat was approved by the Planning and Zoning
Commission at the January 19, 2006, meeting. Later, a Final Plat was
approved at the March 16, 2006, meeting. In addition, a development site
plan has been approved and the building permit was issued by the City.
Section 106-659 of the Code of Ordinances establishes the follqwing criteria
for review of the development projects within a P.U.D. zone.
Land Use - The General Plan contains information regarding the
development of approximately 300:1: acre site. The plan's significant
features include contemplated land uses, open space and storm water
detention areas, landscape and buffer areas and roadway network. The
SCU06-006
August 17, 2006
Page 3 of8
Development Agreement defines the land uses that are acceptable within
various tracts of this development.
Landscaping/Open Space - The General Plan shows the relationship of
landscape/open space and also demonstrates how the trail system, open
space, and the storm water detention system are interrelated. The City may
elect to accept these facilities depending on the final design of the project.
Buffering and beautification is also addressed in the Development
Agreement. In addition, landscaping will be provided within building
setback areas and easements throughout the project. Staff is anticipating that
a consistent theme and design criteria shall be implemented throughout this
development.
Transportationffraffic Control Plan - Truck traffic is typically associated
with this type of commercial and industrial development. The developer has
submitted on traffic analysis plan. The development agreement contemplates
that all trucks will enter and leave the site via State Highway 146 and
Wharton Weems Boulevard and no trucks will proceed north along S. 16th
Street (Powell Road) to Fairmont Parkway. It is anticipated that most of the
traffic will use State Highway 146 Frontage Road. However, Export Drive
will reduce the truck traffic on Powell Road by allowing ingress and egress
to and from State Highway 146 from Powell Road.
Utilities - All infrastructures shall be upgraded to provide potable water,
suitable fire protection, sanitary sewer, storm water, and roadways. Storm
water facilities and roadways will be designed in accordance with the City of
La Porte, Harris County, and Harris County Flood Control District
requirements. The design of the site infrastructure will be reviewed with the
site plan submittal and construction drawings in accordance with the Public
Improvement Criteria Manual (PICM).
Recognizing that the project is moving along with the respective
submittals and approval process, Staff and the developer created a
development proposal. All applicable elements of the Comprehensive Plan
are reviewed and incorporated into this development proposal. However,
owner/developer has expressed concerns that present conditions have
mandated changes to the Developer's Agreement associated with
SCU#05-003. Staff and the owner/developer have worked on the
Development Agreement and Declaration of Covenants, Conditions, and
Restrictions associated with this development. If approved, Special
Conditional Use Permit SCU#06-006 will supersede Special Conditional
Use Permit SCU#05-003 and shall be applicable for an overall development
in conjunction with the Development Agreement and CCRs.
SCU06-006
August 17, 2006
Page 4 of8
Exhibit D, Development Agreement:
This Development Agreement is entered into between Port Crossing Land,
L.P. and the City of La Porte. Draft Development Agreement is
summarized as follows:
. Article II General Plan (GP) and Land Use - The GP contains general
information regarding the development of the entire 300-acre site. (See
Exhibit "F") The Plan's significant features include contemplated land
uses, open space and storm water detention areas, landscape and buffer
areas and roadway network. Article II also addresses additional land use
restrictions. These are specifically defined in Exhibit "G" which will be
discussed later in this analysis.
. Article III Restrictive Covenants - Restrictive covenants are identified
in Exhibit "H" and are applicable for the overall development of Port
Crossing. Future stages of this PUD development will require fmalizing
and recording covenants with subdivision plats and site plan submittals.
Significant components of the covenants are discussed below.
. Article V Open Spaceffrail, Buffering and Beautification - In this
project, the open space and trail as identified are both consistent with the
City's Comprehensive Plan. The General Plan shows the relationship of
these features and also demonstrates how the trail system, open space
area, and the stormwater detention system are interrelated. This Article
provides an option where the City may elect to accept these facilities
depending on the final design. Buffering and beautification is also
addressed under Article V. As shown on the General Plan, a 100' wide
landscape buffer is provided along the west side of Powell Road for
Phase 1, Section 1. A 50' wide landscape buffer is provided along State
Highway146. In addition, landscaping will be provided within building
setback areas and easements throughout the project. Ownership of the
landscape buffers, reserves and easements will be held by fee ownership
of adjoining property or by the property owners association. The
maintenance shall be the responsibility of the property owners pursuant
to provisions of the deed restrictions enforced by the association.
Signage is part of this Article, but is more specifically defined in the
Restrictive Covenants (Exhibit "H"). Staff is requesting that a
consistent theme and design be used for all signs within this
development.
· Article VI Schedule - The schedule identifies the development of
infrastructure and construction of public improvements that will be
needed for this development. As additional phases are proposed,
SCU06-006
August 17, 2006
Page 5 of8
staff will review the infrastructure schedule to ensure that adequate
facilities are being constructed to serve the needs of this project.
. Article VIII Traffic Control Plan - Truck traffic is typically
associated with this type of commercial and industrial development.
In an attempt to reasonably control truck traffic, Exhibit "I" is
included to further define how truck traffic will be handled. This
agreement contemplates that all trucks will enter and leave the site
via SH146 and Wharton Weems Blvd. and no trucks will proceed
north along Powell Road to Fairmont Parkway. The use of signs,
driveway design, routing plans, and individual driver instruction will
be used to implement these provisions. This Article also addresses
driveway access. Staff and the developer have attempted to limit the
installation of driveways within this project by implementing shared-
access and cross-access easements. More specific review of this will
occur during site plan and plat review as subsequent phases develop.
The total number of drives along the SH146 feeder road is limited to
18. This assumes that some of the larger tracts will require at least
two drives, while some smaller tracts may not require any drives and
will utilize a shared access.
. Article IX Site Rail Traffic - The developer is committed to
managing on-site rail activities to establish efficient rail car
movements that may decrease conflicts at Fairmont Parkway. Also,
the maximum number of rail lines is established at 22 and no rail
lines will extend to the east side of Powell Road.
. Article X Utilities, Drainage - Staff and the developer agreed that
the water system needs to deliver between 4,000 and 6,000 gallons
per minute to provide suitable fire protection. This may be
accomplished by tapping into the City's existing l6-inch water line
on the east side of State Highway146. Sanitary sewer service can be
provided via the City's existing trunk sewer main in the K Street
right-of-way just south of Fairmont Parkway. Stormwater facilities
will be designed in accordance with the City and HCFCD
requirements. Design of stormwater detention basins will
accommodate features of the Open Space/Trail System.
Exhibit "E" Metes and Bounds Description:
This exhibit establishes the overall boundary of this development.
This boundary is shown on the General Plan.
SCU06-006
August 17, 2006
Page 6 of8
Exhibit "F" General Plan (GP):
The General Plan basically depicts the ultimate layout of the
development. It identifies future land uses, street alignment, utilities
and drainage, buffer and setback areas.
Exhibit "G" Land Use Exceptions:
The General Plan makes broad references to land use categories.
This exhibit further defines the land uses that are acceptable within
various tracts of this development. Uses currently permitted within
our zoning ordinance are permitted here with some exceptions. In
the Business and Retail (GC) tracts, general contractors, automotive
services, outdoor sales and outdoor storage are not permitted. In the
Office/W arehouse (BI) tracts, general contractors, automotive
services, outdoor sales and outdoor storage, and off-premise signs are
not permitted. In the Light Industrial (Ll) tracts, manufacturing of
chemicals, outside storage including shipping containers, off-premise
signs and a few other uses are not permitted. In Reserve "A" labeled
as Rail/Warehouse, the uses permitted in the (Ll) tracts are permitted
here including rail activities. Shipping containers that are in transit
or are being used to deliver material into or out of the project will be
permitted. This use of shipping containers may be incidental to some
permitted uses.
Exhibit "H" Declaration of Covenants and Restrictions:
The Restrictive Covenants document provides initial and long-term
property control in the business park. Through the assessment of
fees, the Property Owner's Association (POA) maintains landscaped
areas, common areas, perimeter fences and open space areas through
out the park. Significant features of this declaration are as follows:
Permitted and Prohibited Uses - The developer will follow the
underlying land uses as depicted on the General Plan. Covenants
provide a list of various uses which will be prohibited. In addition,
the use of any portion of the subject property shall be subject to
zoning ordinances, SIC Code and other laws applicable here.
Architectural Control - Some of the significant property controls
that the Restrictive Covenants provides are in the areas of
architectural design of buildings. The document states that each of
the improvements to be located on the property shall be constructed
with exterior materials of brick, masonry, stone, marble, or
permanently finished concrete andlor glass, or of an equivalent,
permanent, architecturally-finished material to finish grade and no
SCU06-006
August 17,2006
Page 7 of8
Considerations:
buildings shall be covered with aluminum, iron, steel or other metal
surface.
Landscaping - The developer shall submit landscaping architectural
plans for approval by the City. All open, unpaved space, building
setback areas, and buffers shall be planted and landscaped as per
approved plan. For proper maintenance, a sprinkler system shall also
be installed in all landscaped areas. With regard to landscaping, staff
is only requesting that a uniform design theme be utilized throughout
this project.
Signs - All signs shall be incompliance with the ordinances and
approved by the City. Uniform design and application of signage to
create a unified complex appearance intended.
Property Owner's Association - The administration of the subject
property shall be governed by the Property Owner's Association.
Management, duties and functions of the Association are provided in
detail.
As this development progresses and plats are filed for each section,
the restrictive covenants will be filed for record along with the
subdivision plat.
The Commission must review several considerations:
~ Dedication of the following road rights-of-way should be completed prior to
the final approval:
. Additional 40' of right-of-way along Powell Road parallel to and the
length of Phase I, Section 1 (60'-100' right-of-way total)
. 100' right-of-way for extension of road to State Highway 146 (to
connect with Wharton Weems Boulevard)
· Agreement with the owner/developer to dedicate the southern
extension of Powell Road south once abandonment and construction
issues have been resolved between Harris County, City of La Porte,
and owner/developer.
~ The City of La Porte, Harris County, Harris County Flood Control District,
and TX DOT must approve the construction plans and specification as per
TIRZ# l/Redevelopment Authority Reimbursement Agreement.
~ Once the Final Plat along with public improvement construction plans is
approved by the City, owner/developer files for record the covenants and
restrictions referred to and a part of the Development Agreement.
SCU06-006
August 17, 2006
Page 8 of8
Recommendation:
Recognizing the size and scope of the project and its implications to the
overall economic development in the City is significant. In addition, all
applicable elements of the Comprehensive Plan were initially reviewed
and incorporated into this development. Given that we now see some
forward movement on the development in general, Staff suggests that
Special Conditional Use Permit SCU#06-006, if approved, will supersede
SCU#05-003 and shall be applicable for an overall development in
conjunction with the Development Agreement and CCRs.
Should the Commission wish to approve the SCUP in its present format,
we recommend the following:
1. This SCUP is not applicable to any other specific development
anticipated or proposed by General Plan.
2. This SCUP outlines in general terms the proposed Planned Unit
Development. The developer recognizes and understands that any
future construction or development of the private or public
improvements anticipated by this SCUP and the General Plan shall
require further submittal and approval of plats, site plans, construction
drawings, and building plans, etc.
3. Said submittals shall be in accordance with this SCUP, the approved
General Plan, the Development Agreement, ordinances and policies of
the City of La Porte and specifically Section 106-216 & 217 of the
Zoning Ordinance.
4. The Developer shall comply with all other applicable laws and
ordinances of the City of La Porte and the State of Texas.
Actions required by the Commission:
· Recommend to Council approval of this SCUP with conditions.
. Recommend to Council denial of this SCUP.
· Recommend tabling this SCUP for further review.
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into between Port Crossing
Land, LP; a Texas limited partnership ("Owner-Developer"); their Successors and Assigns,
including the "Other Owners" (hereafter defined) and the CITY OF LA PORTE, TEXAS, a
Texas Municipal Corporation ("City") on the _ day of ,200_.
Recitals
Owner-Developer has proposed development of an approximately 300-acre tract in the City of
La Porte, as the Port Crossing, which is referred to as the Tract and defined hereinafter in Article
1. Owner-Developer and the Other Owners plan to develop the Tract, presently zoned PUD, for
retail, commercial, and business park with some industrial uses. Owner-Developer and the Other
Owners shall construct municipal utilities, including streets, a water distribution system,
wastewater collection system, and the storm drainage/detention system that will connect with the
existing City of La Porte and other regional systems in accordance with development regulations
and policies of the City, Harris County, and Harris County Flood Control District.
Powell Road Logistics, L.P., a Texas limited partnership, National Property Holdings, L.P., a
Texas limited partnership, Del Piso Investments, LLLP, a Arizona limited liability partnership
and FLPCW, LP, a Texas limited partnership, (collectively, the "Other Owners"), the owners of
certain tracts of land also containing a total of approximately 63 acres out of the Tract are joining
in this Agreement for the purpose of confirming their agreement to develop their respective
portions of the Tract pursuant to the provisions of this Agreement.
The City has required, and Owner-Developer and the Other Owners have agreed, that the Tract
will be developed in accordance with the General Plan approved by the City (as defined below
and attached hereto).
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, obligations, and benefits
contained herein, the City and Owner-Developer agree as follows:
ARTICLE I. DEFINITIONS AND EXHIBITS
1.1 Definitions. Unless the context indicates otherwise, the following words as used in this
Contract shall have the following meanings:
City means the City of La Porte, Texas.
General Plan means the plan for the physical development and use of the Tract as defined herein
and approved by the City on 28th day of March, 2005, as amended by the "Plat" (hereafter
defined).
Owner-Developer means Port Crossing Land, LP or their assigns or succeeding developers (or
their designated agent or agents).
H-Development Agreement.doc
ilXHtBIT D
Tract means the approximately 300 acres of land to be developed by Owner-Developer as
described in Exhibit A.
1.2 Exhibits. The following exhibits attached to this Contract are a part of the Contract as
though fully incorporated herein:
Exhibit A - Special Conditional Use Permit (SCUP)
Exhibit B - General Plan, consisting of the final plat ("Plat") to be recorded.
Exhibit C - Land Use Exceptions
Exhibit D - Draft Declaration of Restrictive Covenants for Port Crossing applicable to all
construction and uses.
Exhibit E- Traffic Control Plan
ARTICLE II. GENERAL PLAN AND LAND USE
2.1 General Plan and Land Use. Owner-Developer and Other Owners shall develop their
respective portions of the entire Tract in accordance with the General Plan, SCUP and this
Agreement approved by the City. The General Plan is attached as Exhibit B and additional Land
Use Restrictions are provided for in paragraph 2.3. The Owner-Developer and Other Owners
shall only be responsible for compliance with the General Plan, SCUP and this Agreement with
respect to their respective portions of the entire Tract.
2.2 Amendments. The City acknowledges and Developer represents that Developer's intent
is to develop the Tract as a predominantly commercial PUD development, with some industrial
components consistent with City's Land Use Plan subject to certain exceptions listed below.
Developer or Developer's successors shall provide appropriate amenities and support facilities as
set forth on the General Plan, which is attached to this Agreement. City acknowledges that
Developer intends to develop the Tract in phases, and that all development shall be consistent
with the Special Conditional Use Permit (SCUP), the General Plan, and this Agreement. Should
Developer determine that the General Plan needs to be amended, Developer shall submit an
application for amendment of the Special Conditional Use Permit, which said application shall
be processed consistent with this Agreement, the current General Plan, and the Zoning
Ordinance of the City of La Porte, as the same may be amended from time to time. Amendments
to the General Plan, the Special Conditional Use Permit, and/or this Agreement shall be in
writing.
2.3 Additional Land Use Restrictions. Owner/Developer agrees to conform all
development and improvements to the Tract to the City's Code of Ordinances and established
policies, and further agrees that land uses shall be further restricted according to Exhibit C,
except for the permitted uses authorized by Exhibit "C".
H-Development Agreement.doc
- 2 -
ARTICLE III. RESTRICTIVE COVENANTS
3.1 Development of Restrictive Covenants. Owner-Developer has developed a Draft
Declaration of Restrictive Covenants for Port Crossing, which are attached to this Agreement as
Exhibit "D". These protective covenants and deed restrictions will apply to and be binding upon
the Tract, and shall be in form substantially similar to Exhibit "D". The covenants and deed
restrictions shall be approved by the City and shall be recorded concurrently with each recorded
plat.
ARTICLE IV. TERMINATION
4.1 Term. This Agreement shall have a term commencing on the date first written above,
and continuing until the sooner to occur of (i) the date in which all portions of the Tract have
been platted and developed (with construction of all streets and utilities on the Tract as reflected
by the plats completed or installed and financed by the Owner-Developer), or (ii)
Failure of Owner-Developer to begin construction in accordance with the Special Conditional
Use Permit within one year after issuance of said permit, or as scheduled under the terms of the
Special Conditional Use Permit, shall terminate this Agreement. Owner-Developer may, before
the expiration of one year, request an extension of time from the Planning and Zoning
Commission, in the event that construction has not started in accordance with the Special
Conditional Use Permit.
ARTICLE V. OPEN SPACE/TRAIL, BUFFERING AND BEAUTIFICATION
5.1 Open Space/Pedestrian Trail System. The Owner-Developer shall provide common
open space as shown in Comprehensive Plan and the General Plan, including any required
portion of planned City trail system within the project consisting of public sidewalks within the
rights-of-way noted on the Plat on at least one side of each street, together with landscaping
adjacent to such sidewalks pursuant to the landscape plan approved by the City. Owner-
Developer also will cooperate with any additional trail system plan on property dedicated to the
City in fee or as an easement within the drainage easement and/or detention pond/drainage
system shown on the General Plan.
It is recognized that, until the final design of the detention pond/drainage system is approved, the
exact location and dimensions of these facilities is unknown. When the final design is approved
the City will evaluate the potential for use of these areas as public recreation amenities.
At that time and with mutual consent, the City may elect to accept these facilities either in
easement or fee. The initial development of the detention pond/drainage system and perimeter
landscaping of these facilities shall be the responsibility of the Owner - Developer. The
responsibility of ongoing maintenance of these facilities shall also be determined after reviewing
the final design.
H-Development Agreement.doc
- 3 -
5.2 Buffering and Beautification. The Owner-Developer shall implement a uniform and/or
compatible landscape plan for all phases of the entire project that will address landscaping
provisions not only adjacent to Wharton Weems Blvd. and Powell Road, but also within the
building setbacks and landscape easements or reserves throughout. A Landscape Buffer
(50' wide) shall be provided along the west side of Powell Road and shall include extensive
screening-type vegetation. A landscape buffer, 50' wide, will also be provided along State
Highway 146. Landscape reserves shall also be included adjacent to all roadways, including the
east side of Powell; but rather than screen, shall be landscaped compatible with the ultimate use
ofthat adjacent property.
5.3 Sign age. The Owner-Developer shall implement a sign standards policy, as part of the
Declaration of Restrictive Covenants (Exhibit "D") consistent with the City's Code of
Ordinances as guidance to insure effective and uniform signage is employed throughout the
project. This policy will include uniform and/or compatible project identification monuments,
business signage, street and other traffic directional devices conforming to the Tract's traffic
control plan and deed restrictions.
5.4 Ownership and Maintenance. Ownership of the landscape buffers, reserves and
easements will be held by fee ownership of adjoining property or by the Property Owners
Association (POA), subject to conditions of the deed restrictions and landscape plan. The
maintenance of the buffers, reserves and easements will be the responsibility of the contiguous
property owners pursuant to provisions of the deed restrictions, enforced by the POA.
The Open Space/Pedestrian Trail System shall be constructed within the drainage easements, the
detention pond/drainage system, landscape reserves, or public right-of-ways as dictated by the
final detention design. Ownership and maintenance of the Open Space/Pedestrian Trail System
and drainage/detention pond system shall be determined according to Article 5.1 of this
Agreement.
ARTICLE VI. SCHEDULE
6.1 Schedule. The Owner-Developer or Other Owners, as applicable, shall establish a
specific schedule for the development of and construction improvements on the Tract with the
end user(s). However, in lieu of and as the basis of that detailed schedule, the following work
program is anticipated:
. Initiation of a complete engmeenng study, including drainage and preliminary
infrastructure design.
. Detailed engineering design for Phase One, being all or a substantial part of the area
identified herein as Section One. This would include a rail connection to the main line
and a minimum spur connection to the first building anticipated, water and sanitary sewer
service, initial drainage, and detention to accommodate Phase One;
. Construction of Wharton Weems Blvd., Powell Road, and Export Drive shall be
completed in accordance with the Traffic Study recommendations or as needed for
development purposes;
H-Development Agreement.doc
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. Initiation of procedure to abandon and relocate a portion of Powell Road, south of the
projection of Wharton Weems Blvd. within one (1) year ofSCUP approval;
. Platting, site plan, and detailed engineering plan review by the City of La Porte and
others;
. Initiation of construction pursuant to item 6.1 above, identified as Phase One; and
. Continuation of remainder of development as rapidly as market demands.
ARTICLE VII. FIRE PROTECTION, HAZARDOUS MATERIALS & SAFETY
7.1 Fire Protection. The Owner-Developer shall formulate a plan for fire protection to serve
the Tract by separate agreement with the POA and respective grantees.
7.2 Hazardous Materials. The Owner-Developer agrees no hazardous materials as
identified in state and federal standards (NEP A) as well as City Fire Code, shall be stored on site.
Compliance will be enforced by the POA in concert with the City.
7.3 Safety. The Owner-Developer shall formulate a public safety and training plan with the
City and POA, to ensure safe, efficient handling and storage of materials prior to issuance of a
building permit.
ARTICLE VIII. TRAFFIC CONTROL PLAN
8.1.1 Traffic Control Plan. The Owner-Developer has established a Traffic Control Plan
(shown on the attached Exhibit "E") for the entire project to regulate to the extent practical
project-generated vehicular traffic. In Section One, based on the target market use, the Traffic
Control Plan will include designated truck routes to and from the site, segregation of automobile
traffic, limitation of access from public streets (driveways) and utilization of common cross
easements between tracts for internal circulation.
8.2 Truck Traffic. This controlled traffic will ultimately be directed to State Highway 146
via Powell Road to Wharton Weems Blvd., to standards approved by Harris County as shown on
Exhibit "B" - General Plan. Project driveways will be constructed to induce proper directional
movement to preempt to the extent practical northbound traffic on Powell Road. This will be
complemented by traffic signage as appropriate. In addition, Owner-Developer shall employ
routing plans, driver instruction, and other controls as necessary to obtain compliance of carriers,
employees, and regular contractors or service vendors.
8.3 Driveway Access. The Owner-Developer shall establish driveway access controls that
shall be controlled through restrictive covenants, architectural controls and City Site Plan review.
This will include conditions and design standards consistent as to size, but fewer in number as
established in TxDOT Driveway Manual and the City Zoning Code (106-835) pursuant to
specific site plan review. Unless otherwise approved during review of preliminary and final
plats, driveways along SH146 entering this Tract shall be limited to a total of eighteen (18), but
in all cases, each individual reserve with frontage on SH146 shall have at least one opening.
Provision shall be made, where practical, for internal cross-access easements to maximize
H-Development Agreement.doc
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ingress, egress and circulation to minimize congestion on public rights-of-way and to encourage
traffic to be directed to Wharton Weems Blvd. interchange.
8.4 Transportation Issues The Developer shall continue to work with the City, Harris
County and other public and private sector interests to implement the timely study and/or
construction of transportation components.
ARTICLE IX. SITE RAIL TRAFFIC
9.1 Site Rail Traffic. The Other Owners and/or Rail Logix, LP ("Rail Logix"), a Texas
limited partnership, an affiliate of one of the partners of Owner-Developer, as applicable, will
continue to work with City and such parties' rail consultants, as evidence of the commitment to
the City to improve rail efficiency in the area, reduce conflicts at Fairmont Parkway, and
potentially decrease current rail impacts. On-site rail facilities and operations shall be controlled
by in order to maximize rail efficiency and minimize peak hour conflicts with vehicular traffic at
Fairmont Parkway. Owner - Developer, Other Owners and Rail Logix agree and acknowledge
that the rail yard as depicted on the General Plan shall be limited to a maximum of 22 rail lines
and that no rail lines or sidings will extend to the east side of Powell Road.
ARTICLE X. UTILITIES, DRAINAGE
10.1 Utilities, Drainage. The Owner-Developer shall design and construct adequate water,
wastewater, and drainage facilities to serve each phase of this project in accordance with City
requirements and as further defined by this Agreement. As to water and sanitary sewer, this
would include a water system that would deliver 4-6,000 gallons per minute necessary for
sprinklered fire protection with a loop connection to the 16" main on the east side of S.H. 146
and a gravity wastewater disposal system that flows into a 60" trunk line on "K" street south of
Fairmont Parkway.
The Developer will provide a drainage study for the Tract. The study and design of drainage
improvements shall meet the requirements and approval of the City and Harris County Flood
Control District. Owner-Developer's representative agrees to meet with City, prior to design of
public utilities, to discuss design criteria standards and policies. City shall approve all
construction plans and specifications for public improvements.
ARTICLE XI. BUILDING LINES
11.1 Building Lines. The Owner-Developer shall establish building lines appropriate to the
use, but not less than those prescribed in the City Code of Ordinances. Within the industrial area
west of Powell Road there will be a landscaped 50-foot buffer and building line along Powell
Road. Similarly, along State Highway 146, a 50-foot landscape buffer and building line shall be
maintained. These respective 50- foot landscape buffers shall be kept free from all other uses
with the exception of signage, drainage and detention improvements, and approved drives,
parking and entrances. Owner-Developer agrees that other building lines will be either equal to
or greater than that required by ordinance for the zoning use shown and shall be based on site use
and orientation of the improvements or as shown on the General Plan.
H-Development Agreement.doc
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ARTICLE XII. MISCELLANEOUS
12.1 Sale of Tract; Assignability. Any contract by Owner-Developer to sell the entirety or
any portion of the Tract to a person or entity intending to develop the tract or such portion
thereof (a "Successor Developer," whether one or more) and any instrument of conveyance for
the entirety or any portion of the Tract to such Successor Developer shall recite and incorporate
this recorded Contract and exhibits hereto and provide that this Contract be binding on such
Successor Developer.
12.2 Force Majeure. If by reason of force majeure any party hereto shall be rendered unable
wholly or in part to carry out its obligations under this Agreement, then if such party shall give
notice and full particulars of such force majeure in writing to the party within a reasonable time
after occurrence of the event or cause relied on, the obligation of the party giving such notice, so
far as it is affected by such force majeure, shall be suspended during the continuance of inability
then claimed, but for no longer period; and any such party shall endeavor to remove or overcome
such inability with all reasonable dispatch. The term "Force Majeure" as employed herein shall
mean acts of God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders
of any kind of the Government of the United States, or any civil or military authority,
insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods,
washouts, arrests, restraining of government and people, civil disturbances, explosions, or partial
or entire failure of water supply resulting in an inability to provide water necessary for operation
of the water and sewer systems hereunder. Force Majeure may not be claimed by Owner-
Developer under any set of circumstances prior to commencement of construction on the Tract.
12.3 Law Governing. This Contract shall be governed by the laws of the State of Texas and
no lawsuit shall be prosecuted on this Contract except in a federal or state court of competent
jurisdiction.
12.4 No Additional Waiver Implied. No waiver or waivers of any breach or default by any
party hereto of any term, covenant, condition, or liability hereunder, or the performance by any
party of any duty or obligation hereunder, shall be deemed or construed to be a waiver of
subsequent breaches or defaults of any kind, under any circumstances.
12.5 Addresses and Notice. Unless otherwise provided in this Contract, any notice,
communication, request, reply, or advice (herein severally and collectively, for convenience,
called "Notice") herein provided or permitted to be given, made or accepted by any party to the
other (except bills), must be in writing and may be given or be served by depositing the same in
the United States mail postpaid and registered or certified and addressed to the party to be
notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively
deemed to be effective, unless otherwise stated in this Contract, from and after the expiration of
three (3) days after it's deposited. Notice given in any such other than the manner shall be
effective when received by the party to be notified. For the purpose of notice, addresses of the
parties shall, until changed as hereinafter provided, be as follows:
If to the City, to:
Ifto Owner/Developer, to:
H-Development Agreement.doc
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City of La Porte
Attn: City Manager
P.O. Box 1115
La Porte, Texas 77572-1115
Port Crossing Land, LP
Russell Plank
3330 S. Sam Houston Pkwy. E.
Houston, TX 77047
and
Port Crossing Land, LP
Mark Studtmann
One Pierce Place, Suite 450
!tasca, IL 60143
The parties shall have the right from time to time and at any time to change their respective
addresses and each shall have the right to specify any other address by at least fifteen (15) days
written notice to the other.
12.6 Merger and Modifications. This Contract, including the exhibits that are attached
hereto and incorporated herein for all purposes, embodies the entire agreement between the
parties relative to the subject matter thereof. This Contract shall be subject to change or
modification only with the mutual written consent of the parties.
12.7 Benefits of Contract. This Contract is for the benefit of the City and Owner-Developer
and shall not be construed to confer any benefit on any other person except as expressly provided
for herein.
12.8 Attorney's Fees. In the event of any litigation between the parties with respect to this
Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and
court costs from the losing party.
12.9 Government Immunity Preserved. The Owner-Developer and the City agree that the
City does not, by entering in to this Contract or performing any act hereunder or by failing to
take any action hereunder, waive any governmental immunity that the City, its officers,
employees, or representatives, have under any law.
12.10 One-Party Breach. Any breach of this agreement by one party identified and referred to
herein as Owner-Developer shall not be or constitute a breach of this agreement by the other
party of Owner- Developer.
12.11 Covenant Running With the Land. The obligations imposed on Owner Developers
herein shall not impose personal liability on them, but shall constitute a covenant running with
the land, and as such shall be binding on the present owners of the Tract as well as subsequent
owners thereof.
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(This space intentionally left blank)
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OWNER-DEVELOPER:
Port Crossing Land, LP,
a Texas limited partnership
By: Port Crossing Land GP, LLC
a Texas limited liability company
it general partner
By:
Russell D. Plank, Vice President
Date:
OTHER OWNERS:
DEL PISO INVESTMENTS, LLLP, an Arizona limited
liability limited partnership
By: Had Avenue Investments, L.L.C., an Arizona
limited liability company, its general partner
By:
Gary Sharsten, Manager
By:
Matthew Huarte, Manager
Date:
H-Development Agreement.doc
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FLPCW, LP
a Texas limited partnership
By: FLP Candle GP, Inc.,
a Texas corporation its general partner
By:
George Cook, President
Date:
National Property Holdings, L.P.,
a Texas limited partnership
By: National Property Holdings GP, LLC,
a Texas limited liability company
its general partner
By:
Russell D. Plank, Vice President
Date:
Powell Road Logistics, L.P.,
a Texas limited partnership
By: Powell Road Logistics GP, LLC
a Texas limited liability company,
its general partner
By:
Russell D. Plank, Vice President
Date:
H-Development Agreement.doc
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CITY OF LA PORTE, TEXAS
By:
City Manager
Date:
ATTEST:
Martha Gillett, City Secretary
APPROVED:
John D. Armstrong, Assistant City Attorney
Exhibit C
H-Development Agreement.doc
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,
EXHIBIT if
r~
SITE METESAlm BOUNDS
Being ati approxilna-te.293.803Ei acre tract, in.,the ~cwn of LaPortE!u
Texas recorded in Volume' '-" : ,. r Page ....'.. , Ha:rris County .
Deed Recgrds, out of. the W. P. Barris Survey'A-30, tile "George B. '
)!cItinstry Su:rvey A-47" and the Jonn:!on- Hunter Survey A-35, Harris
COunty, Texas, and ,being lI10re particuJ.arly descr:i.bed 'by metes ana
bounds as follows: '
.'
BEGINNING at a:point at the northeast corner of.fonner1.y dedicated
Block 1;1.70 on i:lie southern boundary of '"a" Str.eet on f;ha western
righi: of way boundaxy. of S1t :r46 marked by a '1; "i:1IP , .
.- .,
. . ,
THENCE southerly 5,750.52 feet along .the western right.,-of-:,w~y
:Coundary ot sa: 1.46 to the north'P=n 'boun"dary of 1!cCabe :Road;
THENCE westexly along the northern right-of-way of Mc~abe Road
2,40011 to the western .coundary o:f','tlie "Un;ion Pac.i:fic Railroad right-
of-way (Save and. except the' area '~l the existing Powell Road
and/or the proposed re-located POW~*l Road);
THENCE' northerly :4,328.?2 feet, along ','the.'easte:t'Il boundary of bhe
Union Pacific Railroad right-of~way to a point 326.66 feet 86
59 J 35" west of the northeast. co;rner of the. George B. McXinstry
Survey [.save and except a, 6 . 31.92 acre tract, descr:tbed as follows ~
OUT TRACT
Be~ng a 6.3192 acre tract of land out of a po~tion of
B~ocks 1203 and 1204, in the TOwn of La Porte, recorded
in Volume 60, Page 112. Harris County Deed Records, out
of the George B. McKinstry Suvey, A-47, and ..the Johnson
Hunter Survey. A-35, Harris County, Texas, andbe.ing more
particularly described by metes and bounds as ;follow!3~
BEGINNING at a point 255.37 feet North ot the Norther~y'
right-of-way of the formerly dedicated West Q Street;
".
THENCE South 020 56' 39" East along the Westeriy right-
of-way 'of Powell Road (60 feet wide). including that
portion of the formerly dedicated West Q Street lying
within. a distance of 3.00.00 feet to a 5/8 inch iron rod
sei; :for COrner;
. "
"
THENCE South 860 591 35ft West. to the Southern Pac~Iic
Raxlroad right-af-way including that portion of formerly
dedicated 17th Street lying within. a distance of 917.25
~eet to a 5/8 iron rod 5et for corner;
THENCE Nor-th 030 031 22" West, along the east~:t'n ~oundary
of the Southern Pacific Railroad right-Of-way, a distance
of 300.00 feet to a 5/8 inch iron rod found for corner;
THENCE ~lorth 860 59' 35" East. d distance of 917.84 feet
to the Point af Eeginning.
IXHtBfr E
-2-.
:':~
i -
THENCE easte~ly t~ the northea~t c9rner. of the McKinstry SurveYi
THENCE ~orth 020 56' 39" a di.stzmce of !20 ':feet, to a 5/8 ~nch l:R;
, .
THENCE easterly 860 59' 35" 652.0 feet -to the ~s'ter1l boundary of
powell Road (Save and except the 60- foota:rea included'::'n the ;r:ight.-
of-way of said powell ~oad);
THENCE Hortherly along the' eastern. b01lna~ of "Po-weJ.l Road right-
o;f-way 385. 0 feet t.o a !SJB 11 .:IF 7
T.HENCE Na50'5~' 35" 765.50 :feet to a polnt ~ked by a 5/8" IPi
THENCE N OQo 56' 39".a distance of 740.00 feet to, the southern tc' .
boundary o~ West -Mil '; S'treet to a 5/8" IP; .' . . ,
TKENCE N 860::59' . 35" along the southern bo1;Uldary of West' "M" StrBe.t
to a J." IR on the western lloundary of SH "1.46, right-o:E-way. -the
point of beginning J a dis'kance of 823.28 .feet.
'\,
\,
Exhibit 6
(
LAND USE EXCEPTIONS
No Tract or portion of the Subject Property shall be used for any purposes, except for office,
research and/or development, retail (subject to the further limitations herein contained), commercial,
commercial processing, servicing, light industrial, manufacturing, retail sales of industrial products
by manufacturers thereof or by manufacturer's representatives, warehousing or distribution
purposes and services ancillary to such uses, er any combination of such uses, and heavy industrial
if approved by Developer in writing. No use shall be-permitted which (1) is offensive by reason of
odor, fumes, dust, smoke, noise, vibrations, radiation, radio interference or pollution, (2) is
hazardous by reason of excessive danger of fire or explosion, (3) otherwise constitutes a nuisance,
(4) is dangerous or unsafe, (5) would injure the reputation of the Subject Property, or (6) is in
violation of any city, county, state or federal law, regulation or ordinance.
,--
The following uses shall not be permitted in or on any portion of the Subject Property:
(1) any distilling, refining, smelting, meat, poultry or fish processing plant, agricultural or mining
operation; (2) any mobile home park, trailer park, labor camp, or stockyard (except this provision
shall not prohibit the temporary use of construction trailers during periods of construction,
reconstruction or maintenance); (3) junk yard, scrap metal yard or waste material business, sales in
bulk of junk, automobile wrecking yard, salvage yard, asphalt plant, any storage, dumping, disposal,
incineration or reduction of hazardous waste, garbage or refuse, bus station, any fire or. bankruptcy
sale or auction house operation, or as an airport. (4) any mortuary or funeral home; (5) school,
church or governmental office (other than a research or development or business office that does
not have customers); (6) any establishment whose primary business is the sale or rental or display
of sexual materials or drug related paraphernalia or whose primary business is providing any adult
only or sexually oriented service or product including, but not limited to, massage parlors, topless
establishments, any "adult" bookstore or "adult" movie theater; (7) any flea market, bowling alley,
nightclub, bar, lounge, tavern, theater, amusement park or video arcade; provided, however, that this
prohibition shall not prohibit placement of video machines that are incidental to the conduct of a
permitted business at the SUbject Property; and (8) any gaming facility or eperation including, but
not limited to, off-track or sports betting parlor, table games such as blackjack, poker, slot machines,
video poker, blackjack, keno machines or similar devices or bingo hall. Notwithstanding the
foregoing, this prohibition shall not apply to any government-sponsored gaming activities or
charitable gaming activities so long as such governmental or charitable activities are incidental to
the business being conducted by the occupant of that portion of the Subject Property and do not
occur regularly.
'-
. ........ (.~
I!XHtDlI. .;J'
DECLARATION OF
PROTECTIVE COVENANTS AND EASEMENTS
PORT CROSSING
H-C:\Documents and Settings\bradleysd\Local Settings\Temporary Internet Files\OLK41A\Declaration of Protective
Covenants and Easements.DOC
DRBIT It
TABLE OF CONTENTS
Article
Page Number
1. PERMITTED AND PROHIBITED USES ...........................................................................2
2. ARCHITECTURAL CONTROL.......................................................................................... 2
3 . CONSTRUCTION-RELATED RESTRICTIONS. ...................................... ....... .................. 4
4. MAINTENANCE OF PROPERTy............ ................ ........................... .............. ................. 8
5. INSURANCE, INDEMNITY AND CASUALTY LOSS...................................................... 8
6. ENVIRONMENTAL REMEDIATION ...................... ......... ......................... ......... ............. 10
7. ENFORCEMENT. ...................... ................................... ....... ......................... ......... ............ 10
8. COVENANT FOR MAINTENANCE ASSESSMENTS ................................................... 11
9. PROPERTY OWNERS' ASSOCIATION ........................................................................... 14
10. SEVERABILITy................................................ ............................. ......................... .......... 14
11. ADDITIONAL RESTRICTIONS ....................................................................................... 15
12. TERM ............ .......... ..... .................... ..... ....... ...... ......... ......... ......... ................ ......... ............ 15
13. AMENDMENTS................................................................ ................................................ 15
14. MISCELLANEOUS................... ............................... ......... ........................................... ..... 16
H-Declaration of Protective Covenants and Easements.DOC - 1 -
DECLARATION OF
PROTECTIVE COVENANTS AND EASEMENTS
COUNTY OF HARRIS
9
9
9
KNOW ALL MEN BY THESE PRESENTS:
THE STATE OF TEXAS
THAT, PORT CROSSING LAND, L.P., a Texas limited partnership (hereinafter called the
"Developer"), being the owner of certain tracts of land containing a total of approximately 231 acres, out of
the H. Sanders Survey, Abstract 753, Harris County, Texas, being more particularly described in Exhibit A
attached hereto and made a part hereof for all purposes (said tracts of land being hereinafter referred to as
the "Port Crossing" or "Subject Property") and any portion thereof platted as a separate tract or conveyed
to third parties or developed by Developer or an affiliated entity being hereinafter referred to as a "Tract",
for the purpose of adopting a uniform plan for the benefit of the present and future owners of any portion of
the Port Crossing, does hereby adopt and establish restrictions, covenants and easements as hereinafter
provided for the Subject Property.
Powell Road Logistics, L.P., a Texas limited partnership, National Property Holdings, L.P., a Texas
limited partnership, Del Piso Investments, LLLP, a Arizona limited liability limited partnership and FLPCW,
LP, a Texas limited partnership, the owners (collectively, the "Other Owners") of certain tracts of land also
containing a total of approximately 63 acres, out of the H. Sanders Survey, Abstract 753, Harris County,
Texas, being more particularly described in Exhibit B attached hereto and made a part hereof for all
purposes (said tracts of land also comprising part of the "Port Crossing" or "Subject Property") are joining
in this "Declaration" (hereafter defined) for the purpose of adopting and establishing the restrictions,
covenants, and easements as hereinafter provided for the portion of the Subject Property owned by the
Other Owners.
Developer contemplates developing the Port Crossing in a manner which will include public streets,
a water distribution system, a sanitary sewer system, and drainage/detention facilities within the Subject
Property and Developer reserves the right to create such public streets and utility-related facilities. Any
portions of the Subject Property reserved or restricted or conveyed to the "Association" (hereafter defined)
for private streets, utility facilities, and landscaping shall not be subject to "Assessment" (hereafter defined).
Additionally, any portion of the Subject Property dedicated for utility facilities (excluding, however, any
portion of a Tract) or conveyed to governmental authorities shall not be subject to the restrictions contained
in this Declaration, except for the prohibited uses described in Article 1.
Developer, for itself, and its successors and assigns, and the Other Owners (as to the portion of the
Subject Property owned by each of the Other Owners, respectively) hereby declare that the Port Crossing
and each part thereof shall be owned, held, transferred, conveyed, sold, leased, rented, hypothecated,
encumbered, used, occupied, maintained and improved subject to the covenants, conditions, restrictions,
limitations, reservations, easements, equitable servitude and other provisions set forth in this Declaration
Of Protective Covenants And Easements ("Declaration"). The Tracts and Private Facilities within the
Subject Property shall be subject to the jurisdiction of the "Association" (hereafter defined). The covenants,
conditions, restrictions, limitations, reservations, easements and equitable servitudes shall run with, inure
to the benefit of, and shall be binding upon, all of the Subject Property, and each Tract and any common
area therein, and shall be binding upon and inure to the benefit of (a) the Developer, its successors and
assigns, (b) the Association and its successors and assigns, and (c) all persons or entities (the "Owner(s)")
having or hereafter acquiring any right, title, or interest in or to any portion of the Subject Property and their
heirs, legal representatives, successors and assigns, other than for security purposes.
H-Declaration of Protective Covenants and Easements.DOC
1.
PERMITTED AND PROHIBITED USES
No Tract or portion of the Subject Property shall be used for any purposes, except for office,
research and/or development, retail (subject to the further limitations herein contained), commercial,
commercial processing, servicing, light industrial, manufacturing, retail sales of industrial products by
manufacturers thereof or by manufacturer's representatives, warehousing or distribution purposes and
services ancillary to such uses, or any combination of such uses, and heavy industrial if approved by
Developer in writing. No use shall be permitted which (1) is offensive by reason of odor, fumes, dust,
smoke, noise, vibrations, radiation, radio interference or pollution, (2) is hazardous by reason of excessive
danger of fire or explosion, (3) otherwise constitutes a nuisance, (4) is dangerous or unsafe, (5) would
injure the reputation of the Subject Property, or (6) is in violation of any city, county, state or federal law,
regulation or ordinance.
The following uses shall not be permitted in or on any portion of the Subject Property: (1) any
distilling, refining, smelting, meat, poultry or fish processing plant, agricultural or mining operation; (2) any
mobile home park, trailer park, labor camp, or stockyard (except this provision shall not prohibit the
temporary use of construction trailers during periods of construction, reconstruction or maintenance); (3)
junk yard, scrap metal yard or waste material business, sales in bulk of junk, automobile wrecking yard,
salvage yard, asphalt plant, any storage, dumping, disposal, incineration or reduction of hazardous waste,
garbage or refuse, bus station, any fire or bankruptcy sale or auction house operation, or as an airport. (4)
any mortuary or funeral home; (5) school, church or governmental office (other than a research or
development or business office that does not have customers); (6) any drilling, refining, quarrying or mining
operations of any kind, (7) any establishment whose primary business is the sale or rental or display of
sexual materials or drug related paraphernalia or whose primary business is providing any adult only or
sexually oriented service or product including, but not limited to, massage parlors, topless establishments,
any "adult" bookstore or "adult" movie theater; (8) any flea market, bowling alley, nightclub, bar, lounge,
tavern, theater, amusement park or video arcade; provided, however, that this prohibition shall not prohibit
placement of video machines that are incidental to the conduct of a permitted business at the Subject
Property; and (9) any gaming facility or operation including, but not limited to, off-track or sports betting
parlor, table games such as blackjack, poker, slot machines, video poker, blackjack, keno machines or
similar devices or bingo hall. Notwithstanding the foregoing, this prohibition shall not apply to any
government-sponsored gaming activities or charitable gaming activities so long as such governmental or
charitable activities are incidental to the business being conducted by the occupant of that portion of the
Subject Property and do not occur regularly.
The use of any portion of the Subject Property by any Owner shall be subject to all laws,
regulations, codes and ordinances of all applicable governing authorities, including, without limitation, any
zoning ordinances. In the event of any conflict between the terms of this Declaration and the terms of any
such law, code, regulation or ordinance, then the provisions of this Declaration or any law, code, regulation
or ordinance which is stricter shall govern.
2.
ARCHITECTURAL CONTROL
A. Plan for Development. The plan for the development of the Subject Property contemplates
the centralization of architectural control to enhance, insure and protect the attractiveness, beauty and
desirability of the Subject Property as a whole. It is accordingly covenanted and agreed that (i) no building,
structure or any appurtenances thereto of every type or kind, including, without limitation, patios, patio
covers, awnings, painting of any exterior surfaces of any visible structure, additions, sidewalks, walkways,
sprinkler pipes, drives, driveways, parking areas, fences, roofs, screening, walls, retaining walls, stairs,
decks, fixtures, poles, exterior tanks, solar energy equipment, exterior air conditioning fixtures and
equipment, exterior lighting, radio, conventional or cable or television antenna or dish, microwave television
antenna and/or landscaping (collectively herein referred to as the "Improvements") shall be commenced,
erected, constructed, placed, or maintained upon any portion of the Subject Property and/or (ii) any exterior
H-Declaration of Protective Covenants and Easements.DOC 2
,
the Subject Property and/or (ii) any exterior modification, renovation, expansion, restoration or repair (if
different from the original exterior construction) change or alteration be made to any Improvement shall be
commenced, erected, constructed, placed, or maintained upon any portion of the Subject Property until in
the case of (i) or (ii), above, the plans and specifications therefor ("Plans") showing the nature, color, kind,
shape, height, materials and location of the same (including site landscaping, drainage and grading plans
and utility layout) have been submitted to and approved in writing as to harmony and external design and
location and relationship to surrounding structures and topography by Developer until the "Transfer Date"
(hereafter defined) and thereafter by the "Board" (hereafter defined). The drainage plans shall cause the
Subject Property to be drained in a manner so that no standing water remains for any extended period of
time following any precipitation and the Subject Property does not become a breeding ground for
mosquitoes. All references in this Article 2 and in Article 3 hereafter made to the Board shall refer to the
Developer prior to the Transfer Date and thereafter to the Board. In the event that the Board fails or
refuses to approve or disapprove such design or location within thirty (30) days after the Plans have been
submitted to it, it will be deemed that the Board has approved such Plans. In the event of damage or
destruction of any Improvement, approval shall be granted by the Board for the restoration of
Improvements if the Improvement is to be restored in substantial accordance with the original approved
Plans. If the Improvements will not be restored in accordance with the original approved Plans, then the
Plans for such restoration shall be subject to approval in the same manner as the original Improvements to
the Tract. All decisions of the Board shall be final, conclusive and binding and there shall be no review of
any action of the Board.
B. No Representation or Warranty; Limitation of Liability. No approval of Plans shall ever be
construed as representing or implying that such Plans will, if followed, result in a properly constructed
structure complying with all applicable legal requirements or built in a good and workmanlike manner or be
deemed approval of the Improvement from the standpoint of safety, whether structural or otherwise.
Neither the Developer, the Association, nor any members of the Board shall be liable in damages to
anyone submitting Plans for approval, or to any Owner or occupant of any part of the Subject Property
affected by this Declaration, by reason of or in connection with the approval or disapproval or failure to
approve any Plans submitted. Every person who submits Plans for approval agrees, by submission of
such Plans, and every Owner or occupant of any portion of the Subject Property involved herein agrees, by
acquiring title thereto or any interest therein, that such person will not bring any action or suit against the
Developer, the Association, or any of the members of the Board to recover any such damages.
C. Inspection of Improvements. The Board or its duly authorized representative, as well as the
City of LaPorte ("City"), shall have the right, but not the obligation, to inspect any Improvements to a Tract
prior to or after completion of any Improvements.
D. Notice of Completion. Promptly upon completion of any Improvements, Owner shall deliver
a notice of completion ("Notice of Completion") to the Board and the City and, for all purposes hereunder,
the date of receipt of such Notice of Completion by the Board shall be deemed to be the date of completion
of such Improvements, provided that the Improvements are, in fact, completed as ofthe date of receipt of
the Notice of Completion.
E. Notice of Non-Compliance. If, as a result of inspections or otherwise, the Board finds that
any Improvement has been constructed or undertaken without obtaining the approval of the Board, or has
been completed other than in substantial conformity with the Plans furnished by the Owner to and
approved by the Board, or has not been completed within a reasonable period oftime (as agreed upon by
the Board or, if no agreement, as determined by the Board in its sole good faith discretion) after the date of
approval by the Board (as determined by the Board), subject to delays due to "Force Majeure" (hereafter
defined) causes, the Board shall notify the Owner and the City in writing of the noncompliance, which
notice (the "Notice of Noncompliance") shall be given, in any event, within sixty (60) days after the Board
receives a Notice of Completion from the Owner. The Notice of Noncompliance shall specify the
particulars of the noncompliance and shall require the Owner to take such action as may be reasonably
necessary to remedy the noncompliance. The Notice of Noncompliance may be filed in the public records
and the cost of preparing and filing the same and the release thereof shall be paid by such Owner.
H-Declaration of Protective Covenants and Easements.DOC 3
F. No Waiver or Estoppel. No action or failure to act by the Board shall constitute a waiver or
estoppel with respect to future action by the Board.
G. Variances. The Board may authorize variances from compliance with any ofthe provisions
of this Declaration, including restrictions upon height, size, floor area or placement of structures within set-
back lines established by this Declaration, on a plat (or plats) of the Subject Property, parking
requirements, or similar restrictions, when circumstances such as topography, natural obstructions,
hardship, aesthetic or environmental considerations may require or when such variance would result in a
more common beneficial and/or efficient use and not detract from the overall development plan for the
Subject Property as determined by the Board. Such variances must be evidenced in writing and shall
become effective when signed by a majority of the members of the Board. The granting of a variance in
one instance shall not require the Board to grant a similar variance for another portion of the Subject
Property. If any such variance is granted, no violation of the provisions of this Declaration shall be deemed
to have occurred with respect to the matter for which the variance was granted; PROVIDED, HOWEVER,
THAT THE GRANTING OF A VARIANCE SHALL NOT OPERATE TO WAIVE ANY OF THE PROVISIONS
OF THIS DECLARATION FOR ANY PURPOSE EXCEPT AS TO THE PARTICULAR TRACT AND
PARTICULAR PROVISION HEREOF COVERED BY THE VARIANCE, NOR SHALL THE GRANTING OF
A VARIANCE AFFECT IN ANY WAY THE OWNER'S OBLIGATION TO COMPLY WITH ALL
GOVERNMENTAL LAWS AND REGULATIONS AFFECTING THE PROPERTY CONCERNED,
INCLUDING, BUT NOT LIMITED TO ZONING ORDINANCES OR REQUIREMENTS IMPOSED BY ANY
GOVERNMENTAL AUTHORITY HAVING JURISDICTION. THE OWNERS ACKOWLEDGE THAT ONLY
THE CITY SHALL BE AUTHORIZED TO GRANT VARIANCES AND SPECIAL EXCEPTIONS TO THE
CITY ZONING ORDINANCE AND GOVERNMENTAL LAND USE RESTRICTIONS THROUGH THE
ZONING BOARD OF ADJUSTMENT. THE BOARD AGREES TO INFORM THE CITY IN WRITING
("VARIANCE NOTICE") PRIOR TO THE GRANTING OF ANY VARIANCE REQUEST OF THE ISSUE
UNDER CONSIDERATION AND THE PROPOSED ACTION BY THE BOARD SO THAT THE CITY CAN
VERIFY THAT THE PROPOSED VARIANCE, IF GRANTED, WOULD NOT VIOLATE ANY ZONING
ORDINANCES, LAND RESTRICTIONS OR REGULATIONS, INCLUDING, WITHOUT LIMITATION, THAT
CERTAIN DEVELOPMENT AGREEMENT DATED ON OR ABOUT THE DATE HEREOF BETWEEN
DEVELOPER AND THE CITY, AND JOINED IN BY THE OTHER OWNERS. If the City objects to the
granting of the variance, the City shall notify the Board (through its representative designated in the
Variance Notice) within ten (10) business days following the City's receipt of the Variance Notice. If the City
fails or refuses to approve or disapprove the variance request within such ten (10) day period, the City will
be deemed to approve such variance request.
3.
CONSTRUCTION-RELATED RESTRICTIONS
A. Exterior Materials. Each of the Improvements to be located on any portion of the Subject
Property shall be constructed with exterior materials of brick, masonry, stone, marble, or permanently
finished (in a manner approved in writing by the Board in their discretion) concrete and/or glass, or of an
equivalent, permanent, architecturally-finished material to finished grade. All exterior finishes shall be
approved by the Board. No Improvement shall be covered with aluminum, iron, steel or other metal
surface or finish unless previously approved in writing by the Board. Sidewalks of a design and location
approved by the Board shall be constructed along one side of the right-of-way of all dedicated public
streets (except State Highway 146) abutting any property line. Any concrete block exterior surfaces shall
be painted. All exterior tilt-up concrete walls must be painted unless constructed with decorative
aggregate exterior designs.
B. Building Set Backs. No building or structure or other facility of any nature shall be
constructed or erected on a Tract between the adjoining street or roadway right-of-way line or adjoining
side or rear property lines and the "Set Back Lines" (defined below) which shall run parallel to the Property
as follows:
H-Declaration of Protective Covenants and Easements.DOC 4
(1) For all buildings or other structures which are located along State Highway 146, the
"Set Back Lines" along such streets and roadways shall be a minimum of fifty feet (50');
(2) For all buildings or other structures fronting any street or roadway, other than State
Highway 146, the "Set Back Lines" along such streets or roadways shall be a minimum of twenty-five feet
(25') or in accordance with the approved Final Plat of Port Crossing.
(3) For all buildings or other structures, the "Set Back Lines" along any side or rear
property line not adjoining a street or roadway shall be a minimum of ten feet (10'); and
(4) The "Set Back Lines" for paving for parking areas which front State Hwy. 146 or any
other streets or roadways within the Subject Property shall be determined by the Board, However, in no
event shall any paving for parking be closer than ten feet (10') to any side or rear property line not adjoining
a street or roadway.
For purposes of this Declaration, all Set Back Lines shall be measured from (a) the right-of-way line
of the street or roadway adjoining the Tract as such right-of-way line exists at the time that the construction
of the improvements on the Tract is commenced, or (b) the adjoining side or rear property line, as
applicable.
C. Parking. Each Owner or lessee shall at all times devote a sufficient portion of its Tract to
providing paved off-street parking facilities adequate for the use(s) to which its Tract is put and otherwise
sufficient to comply with any applicable law, rule, regulation or ordinance, but not less than the following:
Use
Office
Number of Spaces
4 minimum, plus 3 spaces per 1000
square feet of net usable area
Retail
4 minimUm, plus 4 spaces per 1000
square feet of net usable area
Commercial Services,
Manufacturing or Limited
Warehousing and Distribution
3 spaces per 1000 square
feet of office area and one space
per 1500 square feet of non-office area,
but not less than one space per 1.5 non-
office employees
Parking will not be permitted on any street or at any place other than the paved parking spaces provided
therefore. Each Owner and lessee shall be responsible for compliance with this Paragraph C by
constructing or exhibiting paved parking areas on such Owner's Tract, provided that paved parking areas
shall cover not more than eighty-five percent (85%) of the area between a building and a dedicated or
private street.
The Board reserves the right during its review of construction plans to relax minimum parking
requirements, subject to compliance with all City of La Porte regulations and ordinances, on the Tracts
where necessary or desirable to accomplish more effective and compatible land utilization.
D. Signs. All signs shall be in locations and of a design and material approved in writing in
advance by the Board. No more than two (2) free standing ground or berm mounted permanent signs shall
be permitted for each Tract, unless a Tract has frontage on two or more streets, in which case no more
than three (3) free standing ground or berm mounted permanent signs shall be permitted for such Tract.
Unless otherwise approved in writing by the Board, all other signs must be attached to a building and shall
be parallel to and contiguous with its wall and not project above its roof line. No neon sign or sign of a
flashing or moving character shall be installed and no sign shall be painted on a building wall. Directional
H-Dec1aration of Protective Covenants and Easements.DOC 5
Directional and traffic control signs, and signs advertising the sale or lease of a Tract are also permitted
upon the written approval of the design and location by the Board. In the event a building has multiple
tenants, all tenants may be shown on one of the permitted signs, at the discretion ofthe ownerofthe Tract.
The Board shall have the right, and hereby reserves an easement, to enter upon any and all portions of
the Property to remove any signs that are in violation of this Article 3 upon reasonable notice to the Owner
or lessee of such portion of the Property, all at the expense of such Owner or lessee. The Board may
promulgate sign guidelines (which shall include guidelines for pylon signs, monuments and flagpoles)
which may be modified by the Board from time to time in its sole good faith discretion. Notwithstanding the
Board's approval of any signs, all signs also shall comply with the City's zoning ordinance and be permitted
by the City.
E. Harmful Substances. No affluent containing harmful bacteria, poisonous acids, oils or
other harmful substance shall be permitted to drain or drift beyond the property lines of any Tract.
F. Loading/Unloading. Delivery vehicle loading and unloading shall occur on-site only and
street delivery vehicle loading and unloading is not permitted. Loading/unloading facilities shall be
separated from employee, customer and visitor circulation and parking areas.
Loading docks will not be permitted to face any public street or right-of-way, unless otherwise
approved by the Board, and provision must be made for handling all freight on those sides of a building
which do not face a street; provided, however, that in any instance in which a building would face streets on
all of its sides, a loading dock or docks will be permitted on the two sides of such building which are,
respectively, farthest from frontage streets unless the Developer shall in writing permit a loading dock on
another side of such building. All loading docks must be screened from public view in a manner approved
in writing by Developer prior to construction or alteration of any building.
G. Outside Storage or Operations; Screening. No outside storage of any kind shall be
permitted except as expressly provided herein, or as otherwise approved in writing by the Board. Retail
sales equipment may be displayed outside in a manner which is architecturally compatible with the other
Improvements on the Tract, with the approval of the Board. Water towers, cooling towers, communication
towers, fans, exterior processing equipment, storage tanks, roof-top equipment, ground-mounted
equipment, and any other similar structures or equipment shall be architecturally compatible with the other
Improvements on the Tract, or effectively shielded from view from a dedicated or private street in a manner
approved in writing by the Board prior to construction. All screening devices shall be subject to compliance
with all laws, regulations, codes and ordinances of all applicable governmental authorities.
The right of a purchaser, grantee, Owner or lessee to use any building or buildings shall not be
construed to permit the keeping of articles, goods, materials, incinerators, storage tanks, boats, trailers,
campers, horse trailers, buses, inoperative vehicles of any kind, boat rigging or other vehicles or
associated equipment of a recreational or commercial nature, refuse containers or like equipment in the
open or exposed to public view, or view from adjacent buildings. If it shall become necessary to store or
keep such materials or equipment in the open, they shall be screened from view in a manner approved in
writing by Developer. Adequate screening must also be provided to shield such stored materials and
equipment from view from the ground floor level of all adjacent buildings. Under no circumstances shall
any materials or equipment be stored within the applicable Set Back Line for any street.
H. Utility and Drainage Easements. Developer reserves the right, without the necessity of
joinder of any Owner or other person or entity (and each and every Owner or lessee, by its acceptance of a
deed or ground lease covering any portion of the Subject Property, hereby grants to Developer the right), to
grant, dedicate, reserve or otherwise create, from time to time, easements ("Utility Easements") for public
utility purposes in, on, over, through and across any portion of the Subject Property lying within twenty-five
feet (25') of any street (dedicated or private) and within ten feet (10') of any side or rear property line, said
easements to be for the purpose of laying, constructing, installing, maintaining, operating, inspecting,
repairing, altering, substituting, replacing and removing any and all lines, cables, pipes, conduits, wires,
poles, equipment and other necessary or desirable appurtenances for providing utilities (including, without
limitation, electric, water, gas, telephone, sanitary sewer, drainage utilities and cable and other
communications facilities) to the Subject Property; such easements to be for the use and benefit of
H-Declaration of Protective Covenants and Easements.DOC 6
benefit of Developer, and any utility or cable company to whom Developer conveys or grants an easement
for the purpose of providing utilities and related services to the Subject Property and the Owner of any
portion of the Subject Property, their heirs, legal representatives, successors and assigns. If applicable,
Owners shall have the right to use the drainage easement and to tie into any such utility lines located on
such Owner's respective Tract upon payment of any tie-in charge imposed by the utility company, or by any
party providing such utility service. No structure shall be erected on any of said easements, and no
Improvements may be placed within said easements without the prior written approval of the Board and
any utility company using such easements. Easements may be crossed by driveways and walkways
provided the Owner secures the necessary prior approval of the effected utility companies furnishing
services, and provides and installs any special conduit and other equipment of approved (by the utility
companies) type and size, under such driveways and walkways prior to construction thereof.
Title to any Tract conveyed by Developer by deed or other conveyance or ground lease shall not be
held or construed in any event to include the title to the easement estates in favor of third parties affecting
the Tract or any improvements within such easements or appurtenances thereto, constructed by or under
Developer, the Association, third parties or their respective agents through, along, or upon any portion of
the Subject Property, and the right to maintain, repair, sell, lease or replace such facilities or the
appurtenances thereto (but not the Tract) to any municipality or other governmental agency orto any public
service corporation or to any other party, is expressly reserved in Developer and the Association.
An easement is hereby granted to utility companies and other entities supplying service (and
agents and contractors thereof) for reasonable ingress and egress in connection with installing, replacing,
repairing and maintaining all utilities, including, but not limited to, water, sewer, telephones, cable service,
electricity, gas and appurtenances thereto, on, above, across and under the Subject Property within the
utility easements from time to time existing to and from service lines situated within such easements to the
point of service on or in any structure situated on the Tracts. Further, an easement is hereby granted to all
police, fire protection, ambulance and other emergency vehicles, and to garbage and trash collection
vehicles, postal service vehicles and other service vehicles, and to the operators thereof, to enter upon the
Subject Property in performance of their duties. Neither Developer nor any utility company using the
easements shall be liable for any damage done by either of them or their assigns, their agents, employees
or contractors to shrubbery, trees, flowers or other improvements (except damage to the aforementioned
special conduit and other equipment, if any) located on the land covered by said easements, except to the
extent of their respective gross negligence or willful misconduct.
I. Temporary Structures. No tent, shack, temporary building or structure, other than
construction offices and structures for related purposes during the construction period, shall be installed or
maintained on any Tract without the prior written approval of the Board. All temporary structures used for
construction purposes must receive approval by the Board with regard to location and appearance, and
must be removed promptly upon completion of construction.
J. Fences. All fences installed by an Owner along or in the vicinity of the boundary lines of
such Owner's Tract shall be approved by the Board and further subject to compliance with all laws,
regulations, codes, and ordinances of all applicable governmental authorities.
K. Landscaping. Two complete sets of landscaping architectural plans must be submitted to
the Board for written approval prior to commencement of construction on a Tract. All open, unpaved
space, including, but not limited to, front, side and rear building setback areas, shall be planted and
landscaped, according to the plan approved in writing by Developer. Landscape plans submitted for
approval of the Board shall indicate the number, size, spacing and species of shrubs and trees, and the
species of ground cover. A sprinkler system of approved design shall be installed in all landscaped areas.
The Board will require reasonable landscaping of any traffic or parking island located within or at the edges
of any parking areas. Landscaping in accordance with the plans approved by the Board must be installed
within thirty (30) days following the occupancy of a building or Tract. This period may be extended by the
Board in the event of Force Majeure delays. The Board may promulgate landscaping guidelines which may
be modified by the Board from time to time in its discretion. All landscaping installed by an Owner shall be
subject to compliance with all laws, regulations, codes, and ordinances of all applicable governmental
authorities.
H-Declaration of Protective Covenants and Easements.DOC 7
4.
MAINTENANCE OF PROPERTY
The Owner or lessees of any portion of the Subject Property shall have the duty of and
responsibility for keeping their respective Tract and landscaping, vegetation, premises, Improvements and
appurtenances, in a well-maintained, safe, clean, sanitary and attractive condition at all times, in
compliance with all applicable regulations of governmental agencies having jurisdiction over health,
environment, safety and pollution control. No refuse or waste materials shall be permitted to accumulate
on any part of the Subject Property but shall be regularly collected and disposed of. If, in the opinion of the
Developer, any such Owner or lessee is failing in this duty and responsibility, then Developer may give such
Owner or lessee, or both, written notice of such fact, and such Owner or lessee must, within ten (10) days
of such notice, undertake the care and maintenance reasonably necessary to restore such Owner's or
lessee's property to a safe, clean and attractive condition. Should any such Owner or lessee fail to fulfill
this duty and responsibility after such notice, then the Developer shall have the right and power to perform,
or have performed, such care and maintenance, including, without limitation, the mowing of any vacant
Tract, and the Owner and lessee (and/or both ofthem) of the Tract on which such work is performed by the
Developer shall be liable for the cost of any such work and shall promptly reimburse the Developer for the
cost thereof. If such Owner or lessee shall fail to so reimburse the Developer within thirty (30) days after
being billed therefore, then said cost shall be a debt of such owner or lessee (and both orthem), payable to
the Developer, and shall be secured by the same lien that secures the payment of "Assessments"
(hereafter defined), which lien shall be subordinate to any now existing or hereafter created valid liens
securing purchase money, the cost of construction or permanent financing therefore, or any renewal or
extension of such liens. From and after the Transfer Date, the Association automatically shall have the
authority reserved to the Developer in this Article 4 to cure any default of an Owner or lessee. The
Developer may delegate such right to cure any default of the Owner or Lessee to the Association prior to
the Transfer Date.
The Developer and Port Crossing Association hereby agree to maintain all drainage and detention
areas within the development.
5.
INSURANCE. INDEMNITY AND CASUALTY LOSS
A. Each Owner, with respect to its Tract, including the Improvements and any operations
thereon, shall maintain at all times during the term of this Declaration, commercial general liability
insurance (including contractual liability insurance) with combined single limit coverage for personal injury,
bodily injury or death or property damage or destruction (including loss or the use thereof) in the amount of
not less than Three Million Dollars ($3,000,000), (which coverage may be in the form of combined single
limit coverage, with an aggregate, or a combination of combined single limit coverage with umbrella
coverage), provided further that the amount of such coverage is consistent with industry standard for
similar buildings and the cost thereof is not financially prohibitive. Additionally, the Board shall have the
right to require an increase in the aggregate limit of such liability insurance if it becomes industry standard
to provide increased amounts of coverage. Such insurance shall be maintained in reputable, financially
responsible insurance companies, licensed to do business in Texas, and each Owner shall furnish to the
Board upon request a certificate or copy of its respective insurance policy conforming with the provisions
hereof. The Developer and Board shall be named as an additional insured under each Owner's
commercial general liability insurance policy, and such coverage shall be primary to any coverage
maintained by the Developer and/or the Board.
B. Each Owner shall maintain, at its cost, property damage insurance covering the full
replacement value of all Improvements located on their respective Tract, insuring against the perils of fire,
lightning, extended coverage vandalism and malicious mischief, and flood insurance (if available) from time
to time. Such insurance shall be maintained in a reputable, financially responsible insurance company, and
the Owners shall furnish to any other Owner upon request a certificate or copy of its policy of insurance
conforming to the foregoing provisions.
H-Declaration of Protective Covenants and Easements.DOC 8
C. SUBJECT TO THE PROVISIONS OF PARAGRAPH D. BELOW, EACH OWNER
("INDEMNITOR") COVENANTS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE DEVELOPER,
BOARD AND EACH OTHER OWNER ("INDEMNITEE") FROM AND AGAINST ALL CLAIMS, COSTS,
EXPENSES AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED IN
CONNECTION WITH (I) ALL DAMAGES AND CLAIMS, INCLUDING ANY ACTION OR PROCEEDING
BROUGHT, ARISING FROM OR AS A RESULT OF THE DEATH OR INJURY OF ANY PERSON, OR
DAMAGE TO THE PROPERTY OF ANY PERSON OR ENTITY, WHICH SHALL OCCUR ON THE TRACT
OWNED BY EACH INDEMNITOR, EXCEPT FOR CLAIMS CAUSED BYTHE GROSS NEGLIGENCE OR
WILLFULACT OR OMISSION OF THE INDEMNITEE, ITS LICENSEES, CONCESSIONAIRES, AGENTS,
SERVANTS OR EMPLOYEES, OR THEAGENTS, SERVANTS OR EMPLOYEES OF ANY LICENSEE OR
CONCESSIONAIRE WHEREVER THE SAME MAY OCCUR; AND (II) ALL DAMAGES AND CLAIMS
ARISING FROM OR AS A RESULT OF THE DEATH OR INJURY OF ANY PERSON, OR DAMAGE TO
THE PROPERTY OF ANY PERSON OR ENTITY WHICH OCCUR ON ANOTHER OWNER'S PROPERTY
AS A RESULT OF THE NEGLIGENT OR WILLFUL ACTS OR OMISSIONS OF THE INDEMNITOR.
D. Notwithstanding anything contained in this Declaration to the contrary, each Owner ("Injured
Owner") hereby waives any and all rights of recovery, claims, actions or cause of actions against another
Owner, Developer and the Association and such other Owner's, Developer's and the Association's agents,
servants, partners, shareholders, directors, trustees, officers or employees (collectively, the "Injuring
Owner") for any loss or damage that may occur upon the Injured Owner's property or to any personal
property of such Injured Owner by reason offire, the elements or any other cause which is insured against
(or could be insured against) by the terms of policies maintained by the Injured Owner or policies required
to be maintained by Injured Owner pursuant to the terms of this Declaration, including the negligence ofthe
Injuring Owner, its agents, officers, partners, shareholders, directors, trustees, servants or employees and
no insurer shall have any right of subrogation or assignment against such Injuring Owner.
E. The insurance coverages described in Paragraphs A. and B. above may be carried under a
policy or policies covering other liabilities, properties and locations of an Owner of the Tract subject to this
Declaration or a subsidiary or affiliate or controlling corporation of such Owner. Each insurance policy or
policies shall contain a provision that such policy may not be cancelled without a thirty (30) day written prior
notice by the insurer to Developer and the Association.
F. In the event of a casualty loss to any Improvements, the affected Owner shall either
(i) within a commercially reasonable time, not to exceed ninety (90) days after the occurrence of the
casualty loss, commence to repair all exterior and structural portions of such Improvements to the condition
which existed immediately prior to such damage or destruction or to such other condition approved by the
Board, and complete the repair or restoration within one hundred eighty (180) days after the occurrence of
the casualty loss, subject to Force Majeure delays or (ii) within a commercially reasonable time, not to
exceed ninety (90) days after the occurrence of the casualty loss, demolish and remove its damaged
Improvements leaving a graded and landscaped and/or seeded area. In the event of any such casualty
loss or destruction, each Owner shall as soon as possible repair any common utility lines located upon its
Tract which service another Owner's Tract. Any Owner that does not elect to repair or reconstruct after a
casualty loss shall be entitled to retain all its insurance proceeds in connection with such casualty loss
provided that such Owner demolishes and removes the damaged Improvements; otherwise, the insurance
proceeds to cover the costs and expenses of demolishing and removing all damaged Improvements on its
Tract shall belong to and be paid to the Association.
H-Declaration of Protective Covenants and Easements.DOC 9
6.
ENVIRONMENTAL REMEDIATION
Each Owner ("First Owner") agrees to indemnify, defend and hold harmless each of the other
Owners ("Other Owners") from and against any costs, fees or expenses (including, without limitation,
environmental assessment, investigation and environmental remediation expenses, third party claims and
environmental impairment expenses) incurred by any of the Other Owners in connection with First Owner's
generation, storage, transportation, treatment or disposal of Hazardous Substances at, to or from the
portion of the Subject Property owned by the First Owner, including, but not limited to, Other Owners' costs
in connection with monitoring such compliance. "Hazardous Substances," as used in this Article 71 means
(a) any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
~6901 et sea), as amended from time to time, and regulations promulgated there under; (b) any
"hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. ~9601 et sea), as amended from time to time, and regulations promulgated
there under; (c) any oil, petroleum products, and their by-products; (d) any substance the presence of
which on the portion of the Subject Property, (including, without limitation, in the soil, air, structures and
surface and sub-surface waters) owned by the First Owner is prohibited, regulated or restricted by any law
or regulation similar to those set forth in this definition, and (e) any other substance which by law or
regulation requires special handling in its collection, generation, storage, transportation, treatment or
disposal.
7.
ENFORCEMENT
Any notice to the Developer or Board, as applicable, or request for approval by the Developer or
Board, as applicable, shall be made to the Developer or Board, as applicable, in writing, and shall be sent
to the Developer or Board, as applicable, by certified or registered mail, postage prepaid, addressed to the
then current address of such entities as announced from time to time. Initially, the address of the
Developer is: Port Crossing, 3330 S. Sam Houston Parkway E., Houston, Texas 77047, Attention:
Russell D. Plank. If any request for approval of a variance or exception to the restrictions provided herein,
subject to compliance with all applicable laws, regulations, and ordinances of the City of La Porte or
approval of any proposed action by an Owner is required to be made by the Developer or Board, as
applicable, the Developer or Board, as applicable, shall, within thirty (30) days after the request is made,
give the person making the request, at such person's address as shown in the request, written notification
either of the approval by the Developer or Board, as applicable, or of its rejection of the request, with a
specification of the reasons for such rejection. If the Developer or Board, as applicable, fails to give to the
person requesting such approval notification of rejection within such 30-day period as provided for above,
the Developer or Board, as applicable, shall be conclusively deemed to have given its approval with regard
to the request made. Any approval or rejection given by the Developer or Board, as applicable, shall be in
writing, and shall be signed by the Developer, or Board, as applicable, and any written approval, rejection
or other communication by the Developer or Board, as applicable, may be relied upon, as the act of the
Developer or Board, as applicable, by the person receiving such approval, rejection or other
communication.
The Developer, including any successor owner of a substantial portion of the Subject Property
succeeding the Developer as a developer of the Subject Property, any Owner and the Association
(collectively, the "Principal Beneficiaries") shall have the right to enforce the restrictive covenants set forth
in this Declaration against any person or persons violating or attempting to violate this Declaration. No
tenant, lessee or occupant of any portion of the Subject Property and no customer or invitee of any such
tenants, lessee or occupant and no other party whomsoever (other than a Principal Beneficiary, as
aforesaid) shall have any rights to enforce any provision of this Declaration. In the event of a violation or
attempted or threatened violation of any provision of this Declaration, in addition to all other rights and
remedies available at law or in equity, a Principal Beneficiary shall be entitled to obtain restraining orders
and injunctions (temporary and permanent) enjoining and prohibiting such violation, attempted or
threatened violation and commanding compliance with the provisions of this Declaration, without the
necessity of posting a bond.
H-Declaration of Protective Covenants and Easements.DOC 10
8.
COVENANT FOR MAINTENANCE ASSESSMENTS
A. Creation of the Lien and Personal Obligation of Assessment. The Developer for each Tract
owned within the Subject Property, hereby covenants, and each Owner of any Tract by acceptance of a
deed therefor, whether or not it shall be expressed in any such deed or other conveyance, is conclusively
deemed to covenant and agree as a covenant running with the land to pay to the Association assessments
or charges imposed from time to time by the Board for the purposes set forth in Section 8.B. below
(hereinafter referred to as "Assessments"). The Board shall have the right to adopt and from time to time
revise and amend procedures for the purpose of establishing the Assessments, due dates, billing and
collection of the Assessments, provided that such procedures are not inconsistent with the provisions
hereto. The assessments established by the Board shall commence against the subject Property on
August 1, 2006. The Assessments shall be uniform as to each Tract on a per square foot basis according
to the land area comprising such Tract. If the Assessments have commenced to accrue against the
Owners, then, at the time an Owner takes title to a Tract, the installment for that month shall be prorated as
of the day the Owner takes title. Any Assessments not paid and received within ten (10) days from the due
date shall be deemed delinquent and, without notice, shall bear interest until paid at fifteen percent (15%)
per annum, not to exceed the maximum non-usurious rate allowed by applicable law. The Board, at its
option, may impose and collect late charges on delinquent payments, in addition to interest, in an amount
to compensate the Association for the administrative burden of dealing with the delinquency.
To secure the payment of the Assessments levied hereunder and any other sums due hereunder
(including, without limitation, reasonable attorney's fees and costs of collection, interest or late charges), a
vendor's lien and superior title shall be and is hereby reserved, and a contractual lien is hereby created, in
favor of the Association, in and to each Tract and assigned to the Association, which liens shall be
enforceable as hereinafter set forth by the Board or its appointed agent ("Agent") on behalf of the
Association.
Notice of the unpaid amounts, at any time, secured by the liens referred to, reserved by and
created in this Article 8 may, but shall not be required to be given by the recordation in the Real Property
Records of Harris County, Texas of a "Notice of Non-Payment," duly-executed and acknowledged by an
Agent of the Association, setting forth the amount owed, the name of the reputed Owner or Owners of the
affected Tract according to the books and records of the Association, and the legal description of such
Tract. The cost of preparing and filing the Notice of Non-Payment and its release shall be secured by the
lien therefor.
Each Owner, by acceptance of a deed to such Owner's Tract, hereby expressly recognizes the
existence of such liens as being prior to such Owner's ownership of such Tract and hereby vests in the
Board or its Agent the right and power to bring all actions against such Owner or Owners personally for the
collection of such Assessments and other sums due hereunder as a debt, and to enforce the aforesaid lien
by all methods available for the enforcement of such liens, including by judicial and/or non-judicial
foreclosure. Additionally, by acceptance of the deed to such Owner's Tract, each Owner expressly grants a
power of sale such Owner's Tract and all Improvements thereon, and all rights appurtenant thereto for the
purpose of securing the aforesaid Assessments and other sums due hereunder remaining unpaid by such
Owner from time to time. The Agent may be changed at any time by the Board. In the event ofthe election
by the Board to foreclose the liens herein provided for nonpayment of sums secured to be paid by such
liens, then it shall be the duty of the Agent, as hereinabove provided, at the request of the Board (which
request shall be presumed) to enforce this trust and to sell such Tract and all Improvements thereon, and
all rights appurtenant thereto, at the door of the County Courthouse of Harris County, Texas (in the area
designated by the Commissioner's Court of Harris County, Texas, for such purpose), on the first Tuesday in
any month between the hours of 10:00 a.m. and 4:00 p.m. to the highest bidder for cash after the Agent
shall have given notices of the proposed sale in the manner hereinafter set forth, or as provided by statute,
whichever is less burdensome. Following sale, the Agent shall make due conveyance of the Tract and all
Improvements thereon to the purchaser or purchasers, and may, but shall not be required to, give a
H-Declaration of Protective Covenants and Easements.DOC 11
and may, but shall not be required to, give a general warranty of title to such purchaser or purchasers
binding upon the Owner or Owners of such Tract and all Improvements thereon and their heirs, executors,
administrators, successors and assigns. The Agent shall give notice of such proposed sale by posting a
written notice oftime, place and terms of the sale for at least twenty-one (21) consecutive days preceding
the date of sale at the Courthouse door of Harris County, Texas, by filing such notice with the County Clerk
of Harris County, Texas, at least twenty-one (21) consecutive days preceding the date of sale, and, in
addition, the Agent shall serve written notice at least twenty-one (21) days preceding the date of sale by
certified mail on each debtor obligated to pay the debt according to the records of the Association of such
sale and the notice thereof shall comply with the provisions of Section 51.002 of the Texas Property Code,
as it may be amended from time to time. Service of such notice shall be completed upon deposit of the
notice in the United States mail, properly addressed to such debtor obligated to pay the debt at the most
recent address as shown by the records of the Association. The affidavit of any person having knowledge
of the facts to the effect that such service was completed shall be prima facie evidence of the fact of such
service. If any change in Texas law occurs subsequent to the date hereof, this paragraph A of Article 8
shall be amended to comply with such change in Texas law.
At any foreclosure, judicial or non-judicial, the Association shall be entitled to bid up to the amount
of the sum secured by its lien, together with costs and attorney's fees, and to apply as a cash credit against
its bid all sums due to the Association covered by the lien foreclosed. Out of the proceeds of such sale,
there shall first be paid all expenses incurred by the Association in connection with such sale, including
reasonable attorneys' fee and reasonable trustees' fees; second, from such proceeds there shall be paid to
the Association an amount equal to the amount in default, plus interest thereon; and, third, the remaining
balance shall be paid to such Owner and/or such Owner's mortgagee. From and after any such
foreclosure, the occupants of such Tract shall be required to pay a reasonable rent for the use of such
Tract and such occupancy shall constitute a tenancy-at-sufferance, and the purchaser at such foreclosure
sale shall be entitled to the appointment of a receiver to collect such rents and further, shall be entitled to
sue for recovery of possession of such Tract by forcible detainer without further notice.
B. Purpose of Assessments. The Assessments levied by the Board shall be used exclusively
for the purpose of: (i) the operating costs and expenses of the Association; (ii) the payment of all
organization costs and attorney fees incurred by the Association in connection with the enforcement of this
Declaration, including, without limitation, enforcement of parking restrictions; (iii) the maintenance,
replacement and repair of any Private Streets and any Improvements located within the Private Streets (but
not the initial construction of the Private Streets); (iv) the establishment and maintenance of capital and
operating reserves that the Board determines to be necessary and desirable; (v) the payment of any ad
valorem or other taxes due on any property owned by the Association; (vi) the payment of any costs or
expenses incurred with respect to the provision of any facilities and services related to the Private Streets
and other portions of the Subject Property determined to be necessary by the Board; (viii) street lighting,
street sweeping and street maintenance of any private streets in the Subject Property and maintenance of
entry markers, greenbelts, signs, detention ponds, retention areas, esplanades and landscape reserves
and other common areas owned by the Association or dedicated to a governmental entity; (viii) planting,
landscaping, watering, irrigation, mowing, tree surgery and general upkeep and maintenance of plants or
landscaped areas of the common areas owned by the Association; (viii) reimbursement of reasonable and
customary costs and expenses of the Association in connection with its operation and management and
administration of this Declaration (including, but not limited to, common engagement of third party
architects, engineers, attorneys, accountants, managers and other consultants in connection with the
administration of this Declaration) and such other non-capital items of expenses as may be deemed by the
Association, in its discretion and in good faith, to be necessary or desirable for the carrying out of this
Declaration; and (ix) promotion of the recreation, health, and safety (including, without limitation, security
patrols and other security measures if deemed necessary by the Association; provided however, that the
Association shall not be obligated to provide security patrols or other security measures and the provision
of any security measure does not guarantee the safety of any Owners, employees, guests, contractors or
invitees or that the property of any Owner, guest, contractor or invitee will not be damaged, vandalized or
stolen) and the general welfare of the Owners and lessees the Subject Property.
C. Maintenance Fund. The Assessments collected by the Association shall be paid into a
maintenance fund (the "Maintenance Fund") and shall be held, managed, invested and expended by theg
H-Declaration of Protective Covenants and Easements.DOC 12
Board, in its sole good faith discretion, for any of the permitted purposes. The Board and the Directors
shall not be liable to any person or entity as a result of any action taken by the Board with respect to the
Maintenance Fund, except for willful misconduct or fraud.
D. Basis of Maximum of Annual Assessments. Notwithstanding the provisions of Paragraph A
of this Article 8 to the contrary, the maximum initial annual Assessment shall be two cents ($0.02) per
square foot of land area in the Subject Property. From and after January 1, of the next succeeding
calendar year following the imposition of the Assessment, the annual Assessment may be increased as
follows:
The Developer may determine and certify that the then current annual Assessment is not sufficient
to meet reasonable expenses of maintaining and enforcing this Declaration and, the Developer may
increase the annual Assessment by an amount which shall not exceed the greater of: (i) 10% or (ii) an
amount equal to the yearly rise in the United States Department of Labor, Bureau of Labor Statistics
("BLS"), Consumer Price Index (for All Urban Consumers CPI-U) Houston-Galveston-Brazoria, TX. - All
Items (1982-84 = 100) (the "Index") as of July of each year from the preceding July. If, however, the Index
should be discontinued, such calculation shall be made by use of another reputable Index selected by the
Board which is recognized by BLS and is comparable to the Index. Additionally, if the base period of the
Index (currently 1982-84 = 100) is hereby modified, the base period used in making the aforesaid
calculation shall be appropriately adjusted by the Board to reflect such modification and if the Index is
published in such manner that an Index figure is not available each July, then the Index figure published for
the most recent month preceding July shall be used.
The annual Assessment shall not be increased more than once in any calendar year. However, the
right to increase the annual Assessment, as aforesaid, shall be cumulative and in the event the annual
Assessment is not increased to the maximum amount allowed for anyone or more years, then the
Developer shall thereafter have the right to increase any subsequent annual Assessment to an amount
equal to the maximum annual Assessment that would have been chargeable for that year as if the annual
Assessment had been increased by the maximum allowable hereunder for each of such prior years.
Notwithstanding the foregoing provisions ofthis Paragraph 8.D, in the event the Board determines
that it is necessary to increase the annual Assessment more than the amount prescribed by the formula,
the Board, by majority vote, and the affirmative vote of two-thirds (2/3rds) of those Owners who are voting
in person or by proxy at a meeting duly called for such purpose, may increase the maximum annual
Assessment for the subject calendar year. Once the maximum annual assessment for any calendar year
is increased pursuant to the provisions of this grammatical paragraph, the amount to which it has been
increased shall be the amount used to determine the maximum annual Assessment for the next calendar
year.
E. Subordination of Assessment Lien to Mortgages. The liens securing the Assessments
provided for herein shall be subject and subordinate to (i) all liens for taxes or assessments levied by the
City, County and State Governments or any political subdivision or special district thereof and (ii) the lien of
any duly-recorded first and/or second mortgage lien or first and/or second lien deed of trust upon one or
more Tracts made in good faith and for purchase money or improvements. The sale or transfer of any
Tract shall not affect the assessment lien. However, the sale or transfer of any Tract which is subject to
any first or second mortgage lien, pursuant to a foreclosure of such lien or a conveyance in lieu of
foreclosure, shall extinguish the lien of such assessments as to payments thereof which become due prior
to such sale or transfer. No sale or transfer shall relieve the new Owner of such Tract from liability for any
assessment thereafter becoming due according to the terms herein contained or from the lien thereof.
F. Exempt Property. Notwithstanding anything to the contrary herein, the following property
shall be exempt from the payment of assessments: (a) any areas designated as Common Areas by the
Developer and accepted by the Association; and (b) all property dedicated to and accepted by any
governmental authority or public utility.
G. Annual Financial Report. The Association shall deliver to each Owner an unaudited annual
H-Declaration of Protective Covenants and Easements.DOC 13
annual financial report as required by the Texas Nonprofit Corporation Act not later than sixty (60) days
after the end of each calendar year.
9.
PROPERTY OWNERS' ASSOCIATION
The administration of the Subject Property shall be governed by the PORT CROSSING
ASSOCIATION, a Texas non-profit corporation ("Association") to be formed not later than one hundred
eighty (180) days following the closing of the sale of the first Tract out of the Subject Property. The
Association shall act through a Board of Directors ("Board") of not less than three (3) Directors who need
not be members of the Association. The initial Directors of the Association shall be selected by the
Developer. The initial Directors for the Association shall hold office for an initial term ofthree (3) years and,
thereafter, until their successors are duly elected and qualified. After the expiration of the term ofthe initial
Directors, the members of the Association shall elect a Board of Directors as provided for in the Bylaws of
the Association. Directors shall receive no compensation for their services, but, by resolution ofthe Board,
a Director may be reimbursed for reasonable expenses and costs incurred by him in carrying out his duties.
The Board shall have the power to enact any rules, bylaws, procedures and regulations, not inconsistent
with this Declaration.
"Transfer Date," as used herein, shall mean the earlier to occur of: (i) January 1,2026; (ii) thirty
(30) days following the date that seventy-five percent (75%) or more of the total square footage of the
Subject Property has been conveyed to parties not related to or affiliated with the Developer; or (iii) the
Developer's recordation of a notice in the Real Property Records of Harris County, Texas, to the effect that
the Transfer Date has occurred for purposes of this Declaration.
The Directors and the officers of the Association shall not be personally liable to the Owners,
Developer or the Association for any mistake of judgment or for any other acts or omissions of any nature
whatsoever (including, without limitation, any mistake in judgment, negligence or nonfeasance arising out
of or in connection with the approval or disapproval or failure to approve any submitted plans), except for
gross negligence, willful misconduct or bad faith. Every person who submits any Plans to the Board for
approval as herein provided agrees by submission of such Plans, and every lessee or Owner or person
claiming by or through an Owner or lessee agrees by acquiring title to any Tract or interest in a Tract, that it
will not bring any action or suit against the Association or any director or officer, or anyone or more of
them, their respective agents, employees, members or assigns, to recover any damages as a result
thereof, except for gross negligence, willful misconduct or bad faith.
Any Owner of a Tract within the Subject Property shall be a member of the Association, and shall
remain a member for the period of its ownership. Each member of the Association shall be entitled to one
(1) vote for each ten thousand (10,000) sq. ft. of the total square footage of the Tract it owns; provided,
however, that in the event of the expansion of the Subject Property subject to this Declaration, the votes to
which an Owner of land within the Subject Property is entitled shall be revised and adjusted to a ratio that
said number of square feet owned bears to the total number of square feet in the Subject Property, as
expanded. There shall be no fractional votes. No Owner shall be entitled to vote in any election
concerning any action submitted before the Members for their vote during any period in which any such
fees or assessments assessed against such Owner are delinquent or such Owner is otherwise in violation
of this Declaration as to which such Owner has received written notice of such violation.
10.
SEVERABILITY
Invalidation of anyone of these covenants and restrictions by judgment or court order shall in no
way affect any of the other provisions, which shall remain in full force and effect.
11.
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ADDITIONAL RESTRICTIONS
The Developer may make additional restrictions applicable to any Tract by appropriate provisions in
any deed or deeds hereafter conveying any land within the Subject Property, without otherwise modifying
the general plan outlined above, and such other restrictions shall inure to the benefit of the Owners of any
other land in the Subject Property in the same manner as though they had been expressed herein. Without
the consent of any other party, including any Owner, Developer shall have the right to extend the
restrictions and covenants hereof to any land hereafter owned or acquired by Developer, any boundary of
which lies within one mile of the Subject Property ("Additional Land") by filing a supplemental declaration, in
the Real Property Records of Harris County, Texas, adding the Additional Land to the Subject Property
subject to this Declaration. Nothing herein contained, however, shall be deemed to impose any restrictions
on any portion of the Additional Land unless Developer, as the owner of the Additional Land or any portion
thereof, thereafter elects to subject any portion of the Additional Land to the general plan outlined above by
expressly providing for same in any deed or other instrument executed by the Developer, as the owner of
the portion of the Additional Land to be made subject to these covenants and restrictions.
12.
TERM
These covenants shall run with the land comprising the Subject Property and shall be binding on all
Owners and lessees of any of the Subject Property and their respective heirs, executors, Boards, devisees,
successors and assigns, and all persons claiming under them, from the date on which these covenants are
recorded though January 1, 2056, after which time these covenants shall be automatically extended for
successive periods often (10) years each, unless within six (6) months prior to January 1,2056 (or the end
of any extended period) an instrument executed and acknowledged by the persons or entities who then
own at least two-thirds (2/3rds) of the total square footage of land in the Subject Property (exclusive of
public streets) has been recorded in the Real Property Records of Harris County, Texas, terminating these
covenants in whole or in part at the end of any such original or extended term.
13.
AMENDMENTS
Notwithstanding the provisions of Article 12 to the contrary, this Declaration may be amended at
any time (subject to compliance with all applicable laws, codes, regulations, and ordinances of the City of
La Porte) by the written action of the Owners of at least two-thirds (2/3rds) of the total square footage in the
Subject Property, regardless of whether such two-thirds (2/3rds) ownership consists of Developer alone,
Developer and Other Owners or Other Owners alone; provided, however, that if such two-thirds (2/3rds)
ownership consists of Owners alone, then so long as Developer retains fee simple legal title to at least five
(5) acres in the Subject Property, such Other Owners must obtain Developer's written consent to any
amendment of this Declaration and Developer agrees to consider any proposed amendment in the
exercise of good faith judgment and to describe its objections thereto, if any, in writing in reasonable detail.
No amendment shall be effective unless made and recorded ten (10) days in advance of the effective date
of such change and unless written notice of the proposed amendment is sent to Developer and every
Owner at least thirty (30) days in advance of any action taken prior to recordation. No amendment shall be
applicable to existing Improvements on the Subject Property (or the replacement of such Improvements
following casualty or other damage if restored in a substantially similar manner and the restoration is in
compliance with all applicable laws), unless such instrument(s) shall be signed by all of the then Owners of
the Subject Property. Notwithstanding anything herein to the contrary, Developer shall have and reserves
the right at any time and from time to time, without the joinder or consent of any owner or other party, to
amend this Declaration by any instrument in writing duly signed, acknowledged and filed for record by
Developer for the purpose of correcting any typographical or grammatical error, ambiguity or inconsistency
appearing herein or clarifying any provision therein; provided, however, that any such amendment shall be
consistent with and in furtherance of the general plan of development as evidenced by this Declaration and
shall not impair or affect the vested property or other rights of any Owner; and provided further, that nothing
H-Declaration of Protective Covenants and Easements.DOC 15
Owner; and provided further, that nothing herein shall be construed to permit an amendment providing for a
use inconsistent with or prohibited by the provisions of this Declaration.
14.
MISCELLANEOUS
H. Protection of Name. No Owner shall use the phrase "Port Crossing" or any word or words
similar thereto in connection with any Tract or any business operated in connection with any Tract, without
the prior written consent of Developer. The restriction contained in this Paragraph A is for the sole benefit
of and may be enforced only by Developer.
I. Notices. Any notice permitted or required to be given under this Declaration shall be in
writing and may be given either personally or by mail, facsimile machine (with confirmation of delivery) or
overnight air courier service. If served by mail, each notice shall be sent postage prepaid, certified mail,
return receipt requested, addressed to any person at the address given by such Person to the Association
in writing for the purpose of service of such notice, or to the Tract of such person if no address has been
given to the Association and shall be deemed given, if not actually received earlier, at 5:00 p.m. on the
second business day after it is deposited in a regular depository of the United States Postal Service. Such
address may be changed from time to time by notice in writing to the Association.
J. Right of Entry; Enforcement by Self Help. The Association shall have the right, in addition
to and not in limitation of all the rights it may have under this Declaration, to enter upon any Tract, including
any Improvements located thereon, for emergency, security, maintenance, repair or safety purposes, which
right may be exercised by the Association's Board, officers, agents, employees, managers, and all police
officers, firefighters, ambulance personnel, and similar emergency personnel in the performance of their
respective duties. Except in an emergency situation, entry shall be only during reasonable hours and after
reasonable notice to the Owner or occupant of the Tract or Improvements.
In addition to any other remedies provided for herein, the Association or its duly authorized agent
shall have the power to enter upon any Improvements or any portion of a Tract to abate or remove, using
such force as reasonably may be necessary, any Improvement to Property, other structure, or thing or
condition that violates this Declaration, the Bylaws, any Rules and Regulations, or any use restrictions.
Unless an emergency situation exits, such self-help shall be preceded by written notice. All costs of self-
help, including reasonable attorney's fees actually incurred, shall be assessed against the violating Owner
and shall be collected as provided for herein for the collection of Assessments.
All such entries shall be made with as little inconvenience to the Owner as is practicable in the
judgment of the Association and any damages caused thereby (as distinguished from repairs with respect
to which the Association is entitled to a reimbursement assessment) shall be borne by the Maintenance
Fund of the Association.
K. Platting/Replatting. If for any reason, the Developer should be required or deem it
necessary to plat or replat the Subject Property, or any portion thereof, such platting or replatting may be
accomplished without the consent of the Other Owners, or their mortgagees; provided, however, that the
Developer has obtained the approval of the appropriate governmental body or bodies for such platting or
replatting. In addition, if for any reason an Owner other than the Developer, should find it necessary or be
required to plat or replat all or a portion of the Tract owned by him, such Owner may proceed with the
platting or replatting without the consent ofthe Other Owners, or their mortgagees; provided, however, that
(i) such Owner has obtained the approval of the appropriate governmental body or bodies, and (ii) the
Board has given its prior written consent to such platting or replatting, which consent shall not be
unreasonably withheld or delayed.
L. Violations of Law. Any violation of any federal, state, municipal, or local law, ordinance,
rule, or regulation, pertaining to the ownership, occupation, or use of any property within the Subject
Property hereby is declared to be a violation of this Declaration and shall be subject to any and all of the
enforcement procedures set forth in this Declaration.
H-Declaration of Protective Covenants and Easements.DOC 16
M.
exclusive.
Remedies Cumulative. Each remedy provided under this Declaration is cumulative and not
N. Restrictions Construed Together. All ofthe provisions of this Declaration shall be construed
liberally to promote and effectuate the fundamental concepts of the Subject Property, as set forth in the
Declaration.
O. Number and Gender. Unless the context requires a contrary construction, the singular shall
include the plural and the plural the singular; and the masculine, feminine, or neuter shall each include the
masculine, feminine, and neuter.
P. Estoppel Certificates. Within fifteen (15) days after receipt of a written request from any
Owner, the Association shall certify by written instrument, duly executed and acknowledged, to any lender,
purchaser or any other person specified in the request: (i) whether this Declaration has been supplemented
or amended, and if so, the substance of the supplement or amendment; (ii) whether the Owner is in
violation of any provision ofthis Declaration, and if, so, the description of the violation; (iii) the then current
amounts of Assessments and the status of their payment by such Owner; and (iv) any other matters may
be reasonably requested by the Owner.
Q. Captions for Convenience. The titles, headings, and captions used in this Declaration are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Declaration.
R. Force Majeure. "Force Majeure," as used herein, shall mean any delays in performance by
a party required hereunder due to strikes, riots, acts of God, shortages of labor or materials, work,
governmental laws, regulations or restrictions, inclement weather or any other causes of any kind
whatsoever which are beyond the reasonable control of such party, in which event, the party prevented
from performing as a result of such Force Majeure delays, shall be entitled to an extension of the time for
performance equal to the duration of such Force Majeure delays.
S. Governing Law. This Declaration shall be construed and governed under the laws of the
State of Texas.
T. Mergers or Consolidations. Upon a merger or consolidation of the Association with another
association, its properties, rights, and obligations may be transferred by operation of law to another
surviving or consolidated association or, alternatively, the properties, rights, and obligations of another
association may be added by operation of law to the properties, rights, and obligations of the Association
as a surviving corporation pursuant to a meter. The surviving or consolidated association may administer
and enforce the covenants, conditions, and restrictions established by this Declaration governing the
Subject Property, together with the covenants and restrictions established upon any other property, as one
plan, subject also to the provisions of the Declaration.
U. Delay in Enforcement. No delay in enforcing the provisions of this Declaration as to any
breach or violation thereof shall impair, damage, or waive the right of any party entitled to enforce the same
to obtain relief against or recover for the continuation or repetition of such breach or violation or any similar
breach or violation thereof at any later time or times.
H-Declaration of Protective Covenants and Easements.DOC 1 7
EXECUTED this
day of July, 2006.
PORT CROSSING LAND, L.P.,
a Texas limited partnership
By: Port Crossing Land GP, LLC,
a Texas limited liability company
its general partner
By
Russell D. Plank, Vice President
COUNTY OF HARRIS
9
9
9
THE STATE OF TEXAS
This instrument was acknowledged before me on this day of July, 2006, by
RUSSELL D. PLANK, Vice President of PORT CROSSING GP, LLC, a Texas limited liability company,
general partner of Port Crossing Land, L.P., a Texas limited partnership, on behalf of such partnership.
Notary Public in and for
The State of Texas
POWELL ROAD LOGISTICS, L.P.,
a Texas limited partnership
By: Powell Road Logistics GP, LLC,
a Texas limited liability company,
its general partner
By
Russell D. Plank, Vice President
H-Declaration of Protective Covenants and Easements.DOC 18
COUNTY OF HARRIS
9
9
9
THE STATE OF TEXAS
This instrument was acknowledged before me on this day of July, 2006, by
RUSSELL D. PLANK, Vice President of POWELL ROAD LOGISTICS GP, LLC, a Texas limited liability
company, general partner of Powell Road Logistics, L.P., a Texas limited partnership, on behalf of such
partnership.
Notary Public in and for
The State of Texas
FLPCW, LP,
a Texas limited partnership
By: FLP Candle GP, Inc.,
a Texas corporation,
its general partner
By
George Cook, President
COUNTY OF HARRIS
9
9
9
THE STATE OF TEXAS
This instrument was acknowledged before me on this day of July, 2006, by
GEORGE COOK, President of FLP Candle GP, Inc., a Texas corporation, general partner of FLPCW, LP, a
Texas limited partnership, on behalf of such partnership.
Notary Public in and for
The State of Texas
H-Declaration of Protective Covenants and Easements.DOC 19
City of La Porte
Draft
Special Conditional Use Permit #SCU 06-006
This permit is issued to:
Port Crossing Land, L.P.; Powell Road logistics, L.P.; Rail Logix,
GP.LLC.: and National Property Holdings. L.P. (Russell D. Plank)
Owner or Agent
3330 S. Sam Houston Parkway E., Houston, Texas 77047
Address
For development of:
Approx. 300 acre Planned Unit Development. (formerly TIEP)
a mixed use development further defined by a General Plan. The
Planned Unit Development is further defined by a Development
Aareement between the Owner/Aaent listed above and the City of La
Porte. This Special Conditional Use Permit and the General Plan are
Exhibits to and a part of the Development Aareement.
Development Name
Legal description:
300 acres of land out of the George B. McKinstry League, A-47;
Willi::lm P H::Irri~ SlJrVF~y A-30: .John~on Hlmtp.r SlJrvP.y. A-35 ::Ind
more particularly described by - Development Aareement.
Zoning:
The zoning for the tr::lct i~ PI::Innp.d l Jnit l1evelopment The permitted
land uses for this Planned Unit Development are generally depicted on
"Exhibit" - General Plan of Texas Import/Export Park These
permitted land uses are more specifically defined and/or restricted by
covenants, conditions. and restrictions established in the Development
Aareement.
Permit Conditions:
1. This SCUP is not applicable to any other specific development anticipated or proposed by
General Plan.
2. This SCUP outlines in general terms the proposed Planned Unit Development. The developer
recognizes and understands that any future construction or development of the private or
public improvements anticipated by this SCUP and the General Plan shall require further
submittal and approval of plats, site plans, construction drawings, and building plans, etc.
3. Said submittals shall be in accordance with this SCUP, the approved General Plan,
Development Agreement, the City of La Porte and specifically Section 106-216 & 217 of the
Zoning Ordinance.
4. The Developer shall comply with all other applicable laws and ordinances of the City of La
Porte and the State of Texas.
Failure to begin construction within one (1) year after issuance or as scheduled under the terms of a
special conditional use permit shall void the permit as approved, except upon an extension of time
granted after application to the Planning and Zoning Commission.
If construction is terminated after completion of any stage and there is ample evidence that further
development is not contemplated, the ordinance establishing such special conditional use permit may
be rescinded by the City Council, upon its own motion or upon the recommendation of the Planning
and Zoning Commission of the City of La Porte, and the previous zoning of the entire tract shall be in
full effect on the portion which is undeveloped.
Validation Date:
Director of Planning
City Secretary
... &J
RECEIVED
AUG 0 7 200S
A Meeting of the La Porte
PLANNING DEPT.
Plannln2- & Zo~ Commission
(Type of Meeting)
Scheduled for
August 17, 2006
(Date of Meeting)
to Consider
Special Con.ditional Use Pennit #SCU06-006
(Type of Request)
I
otice of the above .refc:enced public hea.ring.
I l1n1 OPPOSED to gnnt:ing this request for the following reuOm:
.
~ e~ibQ. ~IOCJfiJ-,,"W a~ s. ~ ~~~'l?
N (pleas prlnt) Address ~
~" TI lit>=f]
City', State, Zip
HI 39l;;1d
HdN
PPSSPELEtL
PP :2:1 9002:'IIHI8Wl{
Zoning Ordinance Amendment
(Architectural Standards)
Exhibits
A. Staff Report
B. Draft Ordinance
C. TIRZ #1 Map
Staff Report
August 17, 2006
Architectural Standards
Exterior Building Design
Backe:round:
City Council has directed the staff and the Planning and Zoning Commission to consider
adding architectural and building standards to Chapter 106 of the Code of Ordinances.
The purpose is to enhance the overall impression of the City, to have quality
developments along major thoroughfares, and eventually attract new sustainable
businesses to La Porte. Recent developments have generated preliminary discussion on
possible controls on architectural standards on buildings fronting the major corridors
specifically in the Tax Increment Reinvestment Zone (TIRZ) #1. Major developments lie
within TIRZ #1, which includes Port Crossing, Lakes at Fairmont Greens, and Preserve at
Taylor Bayou.
Staff analyzed the situation thoroughly and presented this item to the Planning and
Zoning Commission at the previous meetings for discussion and further guidance to Staff
for possible changes to the Code of Ordinances relating to architectural and building
standards in La Porte.
Existine: ReQuirements:
. Current ordinances allow some controls to be included with Special Conditional Use
Permits (SCUP) associated with uses listed as "conditional" within certain zoning
districts and for construction within Planned Unit Developments (PUD), which
normally follow some form of development agreement.
. No such control, however, is associated with construction of a development whose
use is "permitted" within a certain zoning district. The building must meet building
codes, but the City currently cannot enforce architectural and building standards or
exterior material.
Sue:e:ested ReQuirements:
The purpose of the district is to provide for the establishment of mixed-use industrial
development that is compatible with surrounding or abutting residential districts and to
encourage high-level performance and aesthetic standards. Underlying uses will be
identified according to the zones outlined in the City of La Porte Code of Ordinances, and
Architectural Standards will be classified as Tier I, Tier II, and Tier 111- according to the
visibility of the site.
IXHIBIT A
Planning & Zoning Commission
August 17,2006
Page 2 of2
Tier I:
Any building readily visible from a major thoroughfare or directly abutting a residential
development on any side will be 100% masonry and/or glass. Minimum landscaping is
10%.
Tier II:
Any building readily visible from a collector road or directly abutting a residential
development on any side will be 100% masonry and/or glass.
Side/rear (if visible to collector road) 50% masonry and/or glass with no corrugated metal
or exposed seams. Minimum landscaping is 10%.
Tier III:
Any metal building not readily visible from a major thoroughfare or collector road will be
100% masonry and/or glass with no corrugated metal or exposed seams. Minimum
landscaping 10%.
Several cities in the area have approached this issue by adopting an ordinance, which
defines standards to be used on new construction fronting major thoroughfares.
Typically, these ordinances mandate the use ofa combination of brick, masonry and glass
to a certain percentage to achieve the desired effect.
Masonry may be defined as: brick, stone brick veneer, tilt wall, decorative or textured
concrete block, and split face block, stucco, and EIFS (Exterior Insulation and Finish
Systems).
Landscaping must be in accordance with the City of La Porte approved list of plants,
grass, and ground cover as specified in Section 106-800 of the Ordinance.
Non-conforming Structures must come into compliance with the architectural standards
of the TIRZ No.1 with any change of ownership, use, occupancy, or significant
expansion of the building (as per Section 106-262 of the City of La Porte Code of
Ordinances ).
IXHIBtT 1J
GEORGE ALTVATOR
73
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