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SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE

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This Settlement Agreement and Full and Final Release ("Agreement") is entered into by and between Plaintiffs, Maryland Manor Associates and Buckhead Investment Partners. Inc., and Defendant, City of Houston. I. DEFINITIONS 1. 2. "Agreement" means this Settlement Agreement and Full and Final Release. "City" means the City of Houston, Texas, a Texas home rule municipality, and its agents, assigns, successors, predecessors, or other persons acting or purporting to act for or on its behalf. 3. "Claims" means all of the following: a. All past, present, known, and unknown claims, demands, and causes of action for all damages, attorneys' fees, injunctive relief, mandamus relief, costs, expenses, losses, and remedies that arise directly or indirectly out of or in connection with the City's handling of the Project prior to the Effective Date of this Agreement. b. Subsection (a), above, includes all such claims, demand, or causes of action for alleged violations of any state or federal civil rights (including 42 U.S.C. 1983, substantive or procedural due process, or equal protection), statutory vested rights, inverse condemnation, regulatory taking, trespass, unjust enrichment, injunctive relief, mandamus relief, constructive trust and/or resulting trust;
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c.

Subsection (a), above, includes all such demands and causes of action of any nature, whether in contract or in tort, or arising under or by virtue of any constitution, statute, or regulation, for past, present, known, and unknown damages, personal injuries,

economic loss, lost profit, property damage, and all other losses and damages of any kind, including but not limited to the following: all actual damages, all exemplary and punitive damages, all penalties of any kind, prejudgment and post-judgment interest, sanctions, attorneys' fees, costs, or expenses; and, d. Subsection (a), above, includes all such elements of damages, remedies, and all such claims, demands, and causes of action that are now recognized by law or that may be created or recognized in the future in any manner, including without limitation by constitution, statute, regulation, or judicial decision. 4. "Consideration" means a. Plaintiffs' agreement to conditionally dismiss, with prejudice, the Claims; b. c. City's agreement to approve the Revised Plan; the Parties' execution of this Agreement and the Notice of Settlement and Joint Motion for Conditional Dismissal with Prejudice ("Notice"), and cooperation in obtaining the Court's execution of the Agreed Order for Conditional Dismissal with Prejudice attached to the Notice; and,

d, 5.

the Parties' execution of the Covenants.

"Court" means the United States District Court for the Southern District of Texas, Houston Division.

6.

"Effective Date" means the last date on which the Agreement is executed by any of the Parties.

7.

"Lawsuit" means Civil Action No. 4:10-CV-01736, presently pending before the Honorable Lee H. Rosenthal in the Court, styled Maryland Manor Associates et al. v. City of Houston.

8.

"Owners" means any person, partnership, trust, corporation, limited liability company or other legal entity that, now or in the future, owns a fee simple real property interest in the Project or the Property, including but not limited to its present fee simple owner, Maryland Manor Associates. Owners exclude any tenant, licensee, easement holder or lien holder.

9. 10.

"Parties" means the Plaintiffs and City. "Plaintiffs" means Maryland Manor Associates, a Texas general partnership, and Buckhead Investment Partners, Inc., a Texas corporation, and any agents, assigns, successors, predecessors, and other persons acting or purporting to act for or on behalf of any Plaintiffs.

11.

"Project" means the multistory, mixed-use development proposed by Plaintiffs for the Property and described in the July 30, 2007, foundation and site work permit application submitted by Plaintiffs to the City, and as revised thereafter, known at various stages and times within the City as Project No. 07042588.

12.

"Property" means the 1.6-acre tract of land located at 1717 Bissonnet Street, Houston, Harris County, Texas described in Deed to Plaintiff Maryland Manor Associates dated December 20, 1993, recorded under Clerk's File No. P629709 of the Real Property Records of Harris County, Texas.

13.

"Revised Plan" means the Project as revised and described in the August 4, 2009, foundation and site work permit application submitted by Plaintiffs to the City, and as revised thereafter, known in various stages and times within the City as Project No. 07042588, approved by the City on August 25, 2009, and Project No. 11091510 and as further revised and described in this Agreement. II. THE AGREEMENT

WHEREAS the Parties wish to fully settle and resolve the Claims related to the Lawsuit, the Owners, the Property, the Project, and the Revised Plan. THEREFORE, in consideration of the covenants and promises contained herein, and the Consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Conditional Dismissal with Prejudice: Plaintiffs agree to conditionally

RELEASE, ACQUIT, and FOREVER DISCHARGE the City from all Claims. Plaintiffs' release, acquittal, and discharge of all Claims is conditioned upon the City abiding by the terms of this Agreement. If the City does not abide by the terms of the Agreement, Plaintiffs may invoke the conditional nature of this dismissal by filing a motion in the Court, where Plaintiffs will bear the burden in establishing that the City committed a material breach of the Agreement. No

unreasonable delays by Plaintiffs in submitting the construction plans to the City

will serve as a basis for the City's breach of this Agreement and shall not serve as a reason for the invocation by Plaintiffs to reinstate this Lawsuit. The

determination of whether the City has committed a material breach of the Agreement shall be made by the Court and the Parties will seek to have the matter heard by the Honorable Judge Lee H. Rosenthal. If Plaintiffs meet that burden, the Lawsuit shall be reinstated, and Plaintiffs may continue to litigate the Claims in these proceedings through final judicial resolution. In the event the Lawsuit is reinstated, this Agreement will in no way be construed as a waiver of any of the City's defenses to any Claims in the Lawsuit. In the event that the Lawsuit is reinstated, the Parties agree to submit a Joint Motion for Entry of a Scheduling Order to govern future proceedings. 2. Expiration of the Conditional Nature of the Dismissal: An Agreed Order for

Conditional Dismissal with Prejudice, as attached to the Notice, will be submitted timely to the Court. The Parties agree that, unless Plaintiffs have filed in the Court a request that the Lawsuit be reinstated, the conditional dismissal with prejudice will become final and irrevocable on March 31, 2013, and the Lawsuit cannot be reinstated for any reason after such dismissal becomes final. 3. Cooperation in Filing and Obtaining the Conditional Dismissal: The Parties will execute and file the Notice and cooperate in obtaining the Court's execution of the Conditional Dismissal Order. 4. The Revised Plan: The City will approve all applications for building permits for the construction of the Revised Plan, which otherwise comply with the City's

codes, regulations, and ordinances applicable to the Project, if the Revised Plan meets the following requirements: a. Uses and Sizes: A residential or mixed-use residential and commercial development on the Property with 228 residential high-rise units, 10,075 square feet of quality restaurant use, and four residential townhomes. The uses in the Revised Plan may be modified from those set out above but only if: (i) the remaining requirements listed below in II(4)(b) through II(4)(i) continue to be met; and (ii) the modifications do not result in a design that generates, as measured by the standards and practices of the Institute of Transportation Engineers, more than 104 net PM peak hour trips (if credits for internal capture, pass-by, transit, and demand management are taken) or more than 115 net PM peak hour trips (if credits for pass-by, transit, and demand managementbut not internal capture are taken). b. Stories/Pedestrian Plaza: Structures must not exceed 21 stories above ground level (including parking, residential and commercial stories, but excluding the top roof level). The Revised Plan shall include a pedestrian plaza as is depicted on Page or Drawing LSI 10 to the original foundation and site work permit plan originally filed with the City on July 30, 2007, for an earlier version of the Project, attached hereto as "Exhibit 1" and made a part hereof for all purposes. Hardscape and landscape items such as planters, bedding, trees, fountains and artwork may be reasonably

added, moved or reconfigured within the plaza as long as the plaza layout is not substantively modified. c. Ashby Driveway: One curb cut is permitted onto Ashby Street (the "Ashby Driveway") as shown on Exhibit 1, restricted to the following uses: (i) loading/unloading of trucks sized SU or smaller ("Permitted Trucks"); (ii) entry and exit to and from the Property and Project of Permitted Trucks engaged in loading/unloading; and (iii) passenger vehicles exiting, but not entering, the Property or Project. All traffic exiting the Property or Project through the Ashby Driveway must be directed to turn right only. d. Bissonnet Driveway: One curb cut is permitted onto Bissonnet Street (the "Bissonnet Driveway") as shown on Exhibit 1. The Bissonnet

Driveway may be utilized by all traffic both entering and exiting the Property or Project. Exiting and entering of large trucks onto the Property or Project using the Bissonnet Driveway (requiring backing into the right of way with flaggers) must be restricted to anytime on Saturday and Sunday, and between the hours of 9:00 a.m. to 4:00 p.m. on Monday through Friday. e. Traffic Mitigation Measures: The then current Owners must provide during the duration of the Covenants: (i) a no-charge shuttle service available for residents' use, with the capacity to carry at least 15 people per vehicle, to run back and forth between the Project and the Texas Medical Center at least twice each non holiday (holiday includes only
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recognized federal holidays) weekday morning between the hours of 7:00 a.m. and 9:00 a.m., and at least twice each non holiday (holiday includes only recognized federal holidays) weekday afternoon between the hours of 4:00 p.m. and 6:00 p.m., provided the shuttle need not operate if no resident is using the shuttle at that time, so long as the shuttle remains available for use upon call by a resident; and (ii) at least 10 bicycles will be made available for residents' temporary use, at no charge. If the

Project becomes a condominium, the cost of the foregoing may be incorporated into a condominium assessment, if applied proportionally to all Owners. Property Line Fence: The then current Owners must erect and maintain, or cause to be erected and maintained, during the duration of the Covenants, an 8-foot tall wooden fence or masonry wall matching the exterior of the building, with no visibility through the fence or wall, along the south and east property lines of the Property, as evidenced in the Project and Revised Plan. Green Wall Screening: The then current Owners must ensure during the duration of the Covenants that the entire south and east walls of the Project's parking garage, which must not exceed 5 stories (excluding the level on top of the parking garage), must have an exterior vegetative covering system (e.g., trellis or wall system), subject to the City's building code requirements, such as (but not limited to) ventilation. The then

current Owners must ensure during the duration of the Covenants that the

vegetative covering system must be installed and maintained consistent with good practices for similar screening devices in the real estate industry. The degree of actual coverage from time to time may vary

considering the physical conditions impacting the Project, including technical and horticultural feasibility. h. Li%ht Screening: The then current Owners must ensure during the

duration of the Covenants that the now existing adjacent residences are reasonably and practically screened from the direct impact of garage lighting and vehicle headlights inside the garage, such as with green wall screening described in Section I1.4(g) above, as permitted by building code requirements (including, but not limited to, those for ventilation). The then current Owners must ensure during the duration of the Covenants that all exterior lighting fixtures, including but not limited to any lighting fixtures on any amenity floor, must be hooded or directed away from the now existing adjacent residences, so that the light source is not visible from those residences. i. Noise Mitigation for the Equipment/Pump Room: The then current

Owners must ensure during the duration of the Covenants that the Project's and Revised Plan's equipment and pump room(s) are enclosed with concrete walls and steel doors so as to mitigate noise. 5. Covenants: Plaintiffs and Owners agree that the provisions stated in Section

II(4)(a)-(i) are set forth in the restrictive covenants attached hereto as "Exhibit 2" (herein, the "Covenants"). Plaintiffs and Owners further agree that these

Covenants are perpetual in nature and shall remain in full force and effect during all periods in which the Project and the Revised Plan is occupied. In the event of any conflict between the Project and the Revised Plan as set forth above in this Agreement and the Covenants, the Covenants shall control. 6. Specific Performance Remedy: The City's legal remedies for the breach of the Covenants shall include (but are not be limited to) specific performance. 7. Recording of Covenants: The Parties agree that the Covenants must be duly recorded in the Harris County Real Property Records, as real covenants which run with the land, binding under Texas Real Property law on Plaintiff Maryland Manor Associates during its ownership of the Property and Project, and thereafter all Owners, promptly after entry of the Conditional Dismissal Order by the Court implementing this Agreement. 8. Communications with Media and Residents: The City will be solely

responsible for the initial announcement of this settlement to the media and residents. III. REPRESENTATIONS

In return for the Consideration, the Parties represent as follows: 1. Before executing this Agreement, they became fully informed of the terms, contents, conditions, and effect of this Agreement. 2. They are fully authorized and legally competent to execute this Agreement. Plaintiff Maryland Manor Associates is the present owner in fee simple of the Property.

3.

They had a full and fair opportunity to obtain legal counsel of their own choosing, and enter this Agreement freely, by their own choice, and without duress.

4.

To the extent that either Party's past, present, or future legal counsel has any claim for legal fees, costs, or expenses associated with the Lawsuit, the Property, the Project, Revised Plan, or the Claims, each party acknowledges and represents to the other party that the party incurring the fees, costs, or expenses are solely responsible for such legal fees, costs, and expenses.

5.

They understand that this Agreement is a full, final, and complete release (subject to the conditions set forth herein) and that the Consideration is the only benefit that shall ever be received as a result of the Lawsuit.

6.

They recognize that the recitations contained in this Agreement are contractual and not a mere recital.

7.

Plaintiffs have not sold, transferred, pledged, or assigned, in whole or in part, any of the Claims. To the extent Plaintiffs have sold transferred, pledged or assigned, in whole or part, any matters comprising or described in the definition of "Claims," Plaintiffs are solely responsible for satisfying any obligations arising from such sale, transfer, pledge, or assignment.

8.

They are not relying on any promises or representations of any kind made to them except as is expressly stated in this Agreement and expressly disclaim reliance on any promises or representations that are not expressly included herein. This provision is meant to satisfy the requirements of Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008) and its progeny, and conclusively negates any evidence of reliance for any future claims. 11

9.

They specifically represent and warrant that they have full authority to bind such entity and/or persons to this Agreement. IV. MISCELLANEOUS PROVISIONS

1.

This Agreement supersedes and replaces any and all prior written or oral agreements between the Parties regarding the Lawsuit, the Property, the Project, the Revised Plan, and the Claims.

2. 3.

This Agreement is not an admission of liability and shall not be construed as such. The Agreement shall be governed and construed in accordance with the laws of the State of Texas and the Ordinances and Charter of the City of Houston, without regard to conflict of laws principles. The Parties agree that any future dispute arising out of this Agreement, the Property, the Project, the Revised Plan, or the Claims must be resolved in the United States District Courts for the Southern District of Texas, located in Houston, Texas, and the Parties expressly consent to the jurisdiction of that court. If jurisdiction cannot be had in the United States District Courts for the Southern District of Texas, located in Houston, Texas, the Parties agree that any future dispute arising out of this Agreement, the Property, the Project, the Revised Plan, or the Claims must be resolved in the District Courts of Harris County, Texas.

4.

If any portion of the Agreement is found to be unenforceable, it shall be severed from the Agreement and shall not affect the enforceability of the remaining provisions in the Agreement, except if the obligation for the City to approve the Revised Plan is unenforceable, then, at Plaintiffs' option, this Agreement shall terminate and the Lawsuit shall be reinstituted as if not dismissed. 12

5. 6.

The language herein shall not be construed for or against any particular party. Any signed counterpart of this Agreement shall be deemed to have the force and effect of an original.

7.

This Agreement shall not be modified or altered in any way except in writing and executed by all Parties hereto.

8.

The Parties will not unreasonably withhold, condition or delay any approval, permit, or consent required hereunder.

9.

The Parties shall execute such further documentation to implement and to evidence the settlement of the Lawsuit as reasonably necessary considering the nature of the Project and Revised Plan.

10.

The Effective Date of this Agreement shall be the last date it is executed by any of the Parties.

11.

THIS AGREEMENT is EXECUTED in multiple counterpart originals by the Parties on the respective dates set forth below.

Plaintiff Maryland Manor Associates MARYLAND MANOR ASSOCIATES, a Texas General Partnership By:
By:

HAMf XI, LLC, a

imited liability company, General Partner

Date:

THE STATE OF TEXAS COUNTY OF HARRIS


BEFORE ME, the undersigned authority, on this day personally appeared , known by me to be the person whose signature appears on this Settlement greernemand Full and Final Release, and stated under oath that the document was executed in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this^Nday of < ^or^^r^ , 2012. ^~ (SEAL)

Notary Public in and

State of Texas

PATRICIA AMY BOLOUC My Commission Eipires February 11.2015

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Plaintiff Maryland Manor Associates MARYLAND MANOR ASSOCIATES, a Texas General Partnership By: HAMG XI, fcLC, a Texas limited liability company, General Partner

By: KEVIN M. KIR ION, Manager

i n
Date: *~-

-">.
~

- !<>
, - \ /

THE STATE OF TEXAS COUNTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared , known by me to be the p person whose signature appears on this Settlement ^ ^ y g pp Agreement and Full and Final Release, and stated under oath that the document was executed in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on t h i s ^ j ^ d a y 2012. (SEAI

Notary Public in an

the State of Texas

PATRICIA AMY BOLOOC My Commission ixpirts


February 11.2015

Plaintiff Maryland Manor Associates MARYLAND MANOR ASSOCIATES, a Texas General Partnership Bv: SEMKEN COI as corporation, General Partner

Bv: MATTHEW J. MORGAN Date:

THE STATE OF TEXAS COUNTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared , known by me to be the person whose signature appears on this Settlement "AgreemenTand Full and Final Release, and stated under oath that the document was executed in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on t h i s Z f day of r*Mt 2012. (SEAL)
Lu,

Notarv Public in and for the^State of Texas

PATRICIA Ait iOLDUC My Commission Expifis February 11, 201S

Plaintiff Buckhead Investment Partners, Inc.


Buckhead Investment Partners, Inc. A Texas Cf rloratipn By: Name:

Title:

fifes

THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared MSQMM^ rmfQ&i-., known by me to be the person whose signature appears on this Settlement Agreement and Full and Final Release, and stated under oath that the document was executed in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on t h i s 2 1 ^ a y of 2012. (SEAL)

Notary Public in and^for the State of Texas


/'

PATRICIA AMY BOLDUC My Commission Expires Ftbruary 11,2015

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Defendant: City of Houston THE CITY OF HOUSTON, TEXAS

By: Mayor .4 Date signed: (J^~ i signed:_ AttestZSe'al City Secretary (0

Approved:

City Attorney

Countersigned bv:

City C o n t r o l l e T " ^ Date countersigned: ?,

Mi

PROJECT X
WXJSTON.TCXAS

STE PLAN GRADING PLAN

EXHIBIT 1

DECLARATION OF RESTRICTIVE COVENANTS

This Declaration of Restrictive Covenants (the "Declaration") is established Whd\ 1 , 2012 by MARYLAND MANOR ASSOCIATES, a Texas general partnership ("Declarant"), whose general partners are HAMG XI, LLC, a Texas limited liability company and SEMKEN CORPORATION, a Texas corporation. RECITALS: 1. Declarant owns the following land ("Property") in Harris County, Texas: All of EAST COURT, according to the map or plat thereof recorded under Film Code No. 613296, of the Harris County Map Records, and also recorded under Clerk's File No. 20070440486 of the Official Records of Real Property of Harris County, Texas. 2. Declarant desires to develop the Property and applied, through its affiliate Buckhead Investment Partners, Inc., a Texas corporation ("Buckhead") to the City of Houston, Texas ("City") for building permits for the construction of a high rise, mixed use project ("Project"). 3. Declarant, Buckhead and the City settled litigation relating to the approval of the Project, being Civil Action No. 4:10-CV-01736, in the United States Federal Court for the Southern District of Texas- Houston Division ("Lawsuit"), which includes the City approving a variation of the Project ("Revised Plan"), subject to certain development requirements. 4. This Declaration is for the benefit of the City as part of settlement of the Lawsuit to regulate the Revised Plan, if developed on the Property. NOW, THEREFORE, Declarant declares that the Property is subject to the following restrictive covenants, all of which shall run with the Property and be binding on all persons now or any time hereafter having or claiming any right, title or interest in the Property or any part thereof, their heirs, executors, administrators, successors and assigns, as a real covenant, and for the benefit of the City, as a personal covenant, if and for so long as the Revised Plan is constructed and operated on the Property. ARTICLE I: DEFINITIONS The following capitalized terms shall have the meanings given below: 1. "City" means the City of Houston, Texas, a Texas home rule municipality, and its agents and successors.

2.

"Owner(s)" means any person(s), partnership(s), trust(s), corporation(s), limited liability companies or other legal entities that, now or in the future, owns a fee simple real property interest in the Project or the Property, including but not limited to its present fee simple owner, Declarant, and including any owner of a condominium unit in the Revised Plan. Owners excludes any tenants, licensees, lenders, easement holders or lien holders. "Project" means the multistory, mixed-use development proposed by Declarant and Buckhead for the Property and described in the July 30, 2007, foundation and site work permit application submitted by Buckhead to the City, and as revised thereafter, known at various stages and times within the City as Project No. 07042588. "Revised Plan" means the Project as revised and described in the August 4, 2009, foundation and site work permit application submitted by Buckhead to the City, and as revised thereafter, known in various stages and times within the City as Project No. 07042588, approved by the City on August 25, 2009, and Project No. 11091510 and as further revised and described in this Declaration. ARTICLE II: REVISED PLAN RESTRICTIONS

3.

4.

The Revised Plan consists of the following restrictions and requirements: 1. Uses and Sizes: A residential or mixed-use residential and commercial development on the Property with 228 residential high-rise units, 10,075 square feet of quality restaurant use, and four residential townhomes. The uses in the Revised Plan may be modified from those set out above, but only if: (i) the remaining requirements listed below in 11(2) through 11(9) continue to be met; and (ii) the modifications do not result in a design that generates, as measured by the standards and practices of the Institute of Transportation Engineers, more than 104 net PM peak hour trips (if credits for internal capture, pass-by, transit, and demand management are taken) or more than 115 net PM peak hour trips (if credits for pass-by, transit, and demand managementbut not internal capture are taken). Stories/Pedestrian Plaza: Structures must not exceed 21 stories above ground level (including parking, residential and commercial stories, but excluding the top roof level). The Revised Plan shall include a pedestrian plaza as is depicted on Page or Drawing LSI 10 to the original foundation and site work permit plan originally filed with the City on July 30, 2007, for an earlier version of the Project, attached hereto as "Exhibit 1" and made a part hereof for all purposes. Hardscape and landscape items such as planters, bedding, trees, fountains and artwork may be reasonably added, moved or reconfigured within the plaza as long as the plaza layout is not substantively modified. Ash by Driveway: One curb cut is permitted onto Ashby Street (the "Ashby

2.

3.

Driveway") as shown on Exhibit 1, restricted to the following uses: (i) loading/unloading of trucks sized SU or smaller ("Permitted Trucks"); (ii) entry and exit to and from the Property and Project of Permitted Trucks engaged in loading/unloading; and (iii) passenger vehicles exiting, but not entering, the Property or Project. All traffic exiting the Property or Project through the Ashby Driveway must be directed to turn right only. 4. Bissonnet Driveway: One curb cut is permitted onto Bissonnet Street (the "Bissonnet Driveway") as shown on Exhibit 1. The Bissonnet Driveway may be utilized by all traffic both entering and exiting the Property or Project. Exiting and entering of large trucks onto the Property or Project using the Bissonnet Driveway (requiring backing into the right of way with flaggers) must be restricted to anytime on Saturday and Sunday, and between the hours of 9:00 a.m. to 4:00 p.m. on Monday through Friday. Traffic Mitigation Measures: The then current Owners must provide during the duration of the Covenants: (i) a no-charge shuttle service available for residents' use, with the capacity to carry at least 15 people per vehicle, to run back and forth between the Project and the Texas Medical Center at least twice each non holiday (holiday includes only recognized federal holidays) weekday morning between the hours of 7:00 a.m. and 9:00 a.m., and at least twice each non holiday (holiday includes only recognized federal holidays) weekday afternoon between the hours of 4:00 p.m. and 6:00 p.m., provided the shuttle need not operate if no resident is using the shuttle at that time, so long as the shuttle remains available for use upon call by a resident; and (ii) at least 10 bicycles will be made available for residents' temporary use, at no charge. If the Project becomes a condominium, the cost of the foregoing may be incorporated into a condominium assessment, if applied proportionally to all Owners. Property Line Fence: The then current Owners must erect and maintain, or cause to be erected and maintained, during the duration of the Covenants, an 8foot tall wooden fence or masonry wall matching the exterior of the building, with no visibility through the fence or wall, along the south and east property lines of the Property, as evidenced in the Project and Revised Plan. Green Wall Screening: The then current Owners must ensure during the duration of the Covenants that the entire south and east walls of the Project's parking garage, which must not exceed 5 stories (excluding the level on top of the parking garage), must have an exterior vegetative covering system (e.g., trellis or wall system), subject to the City's building code requirements, such as (but not limited to) ventilation. The then current Owners must ensure during the duration of the Covenants that the vegetative covering system must be installed and maintained consistent with good practices for similar screening devices in the real estate industry. The degree of actual coverage from time to time may vary considering the physical conditions impacting the Project, including technical and horticultural feasibility.

5.

6.

7.

8.

Light Screening: The then current Owners must ensure during the duration of the Covenants that the now existing adjacent residences are reasonably and practically screened from the direct impact of garage lighting and vehicle headlights inside the garage, such as with green wall screening described in Section II.4(g) above, as permitted by building code requirements (including, but not limited to, those for ventilation). The then current Owners must ensure during the duration of the Covenants that all exterior lighting fixtures, including but not limited to any lighting fixtures on any amenity floor, must be hooded or directed away from the now existing adjacent residences, so that the light source is not visible from those residences. Noise Mitigation for the Equipment/Pump Room: The then current Owners must ensure during the duration of the Covenants that the Project's and Revised Plan's equipment and pump room(s) are enclosed with concrete walls and steel doors so as to mitigate noise. ARTICLE III DISPUTE RESOLUTION

9.

Section 1. Notice and Cure Defaults. Upon any failure to perform or observe any term or condition of this Declaration, Owners shall have thirty (30) days after receipt of written notice thereof from the City to cure such failure, provided however, that if the nature of such failure is such that it cannot reasonably be cured within said thirty (30) day period, then additional time as is reasonably necessary to cure such failure shall be provided, so long as cure is commenced within said thirty (30) day period and cure proceeds with diligence and continuity in not more than an additional ninety (90) days. If the Revised Plan has become a condominium, then the notice shall be provided to the Condominium Assocation, according to the Condominium Information Statement for the Revised Plan, or any successor to such document which is recorded in the public records and gives notice to the public of the Condominium Association, for the Revised Plan, and to the then current Owners. Section 2. Mediation. In the event any dispute arises under this Declaration, all parties to the dispute shall meet and negotiate in good faith to settle the dispute. If the dispute cannot be resolved by negotiation, the dispute shall be submitted to mediation pursuant to the Mediation Rules of the American Arbitration Association before resorting to litigation. If the need for mediation arises, a mutually acceptable mediator shall be chosen by the parties to the dispute who shall share the cost of mediation services equally. All parties will meet with the mediator who will try to resolve the dispute informally and confidentially. The mediator will facilitate the resolution of any disputes but no settlement will be binding unless it is agreed to by all parties. ARTICLE IV: GENERAL PROVISIONS Section 1. Duration. The covenants and restrictions of this Declaration shall run with and bind the Property only if and as long as the Project is constructed consistent with the Revised Plan. If either i.) the land is developed with a building which is not the Revised Plan, or ii.) the

Revised Plan is developed, but later demolished and removed, then this Declaration shall terminate automatically, and the City agrees to execute a termination document prepared by Owner. Section 2. Enforcement. The City is the sole beneficiary of the Declaration, is the only party which may enforce it, and may not assign its rights hereunder. The City may enforce the Declaration by proceeding at law or in equity including (without limitation) the right to specific performance. Failure of the City to take any action upon any breach or default of or in any respect to any of the foregoing shall not be deemed a waiver of its right to take enforcement action upon any subsequent breach or default. Section 3. No Other Beneficiaries. Declarant does not intend for this Declaration to inure to the benefit of any person other than the City, or for this Declaration to be construed to make or render Owner liable to any owner, seller, purchaser, lender, lessor or lessee of any property owned by any person adjacent to or in the vicinity of the Property. Section 4. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given on the 3 rd day after deposit in the United States Mail, Certified Mail, Return Receipt Requested, postage prepaid, and addressed to the party being notified at the address given below (or such other party and address which any party may designate for itself from time to time hereafter by written notice to the other party): Owner: Maryland Manor Associates 2536 Amherst, Suite F Houston, Texas 77005 Attention: Matthew Morgan / Kevin Kirton Wilson, Cribbs & Goren, P.C. 2500 Fannin Street Houston, Texas 77002 Attention: Reid C. Wilson City of Houston Legal Department PO Box 368 Houston, TX 77001-0368 Attention: City Attorney Anna Russell, City Secretary 900 Bagby Houston, Texas 77002

Copy to:

City:

Copy to:

Section 5. Limitation of Liability. Any Owner is liable for compliance hereunder only during their period of ownership of a fee simple interest in the Property. No lender or holder of any non-fee simple ownership interest in the Property has any liability hereunder. No Owner of a condominium unit in the Property, if it becomes a condominium, has personal liability (but is liable for compliance and subject to specific performance), instead the

Condominium Association for the Property (but not its members, officers and/or directors) shall have liability for compliance with this Declaration. Section 6. Interpretation. If this Declaration or any word, clause, sentence, paragraph or other part thereof shall be susceptible to more than one or conflicting interpretations, then the interpretation which is the most nearly in accordance with the general purposes and objectives of this Declaration shall govern. Section 7. Severability. Invalidation of any one or more of the covenants, restrictions, conditions or provisions contained in this Declaration, or any part thereof, shall in no way affect any of the other covenants, restrictions, conditions or provisions which shall remain in full force and effect. Section 8. Termination/Amendments. This Declaration can only be terminated, amended or modified by an instrument in writing signed by the City and all Owners at the time of such termination or amendment. Effective the date set forth above. (signatures on the following pages)

MARYLAND MANOR ASSOCIATES, a Texas general partnership By: HAMG XI, LLC, a Texas limitec liability company, its general partner

Bv:
MAT'f HEW J. MOTRGA
By:

Manager

4
K1R'T(5N, Manager

By:

SEMKEN CORPORAT

"exas corporation, its general partner

By:

THE STATE OF TEXAS COUNTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared MATTHEW J. MORGAN, Manager of HAMG XI, LLC, a Texas limited liability company, as general partner of MARYLAND MANOR ASSOCIATES, a Texas general partnership, known by me to be the person whose signature appears on this Declaration of Restrictive Covenants, and stated under oath that he executed the same for the purposes therein expressd, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this (SEAL)
C5?*1 j

ay of

^ t i

, 2012.

Notary Public in andibrjfhe State of Texas


PATRICIA AMY BOIOUC My Oenwnisston Expires February 11.2015

THE STATE OF TEXAS COUNTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared KEVIN y. KIRTON, Manager of HAMG XI, LLC, a Texas limited liability company, as general partner of MARYLAND MANOR ASSOCIATES, a Texas general partnership, known by me to be the person whose signature appears on this Declaration of Restrictive Covenants, and stated under oath that he executed the same for the purposes therein expressd, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE on t h i s i j l j a y of Pnhf<^-H , 2012. (SEAL)

PATRICIA AMY SOLOUC Commlsaion Expire* February 11.2015

Notary Public in and/for the State of Texas

THE

OTYEXAS

COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared MATTHEW J. MORGAN, President of SEMKEN CORPORATION, a Texas corporation, as general partner of MARYLAND MANOR ASSOCIATES, a Texas general partnership, known by me to be the person whose signature appears on this Declaration of Restrictive Covenants, and stated under oath that he executed the same for the purposes therein expressd, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this2^(d ay of (SEAL)
2012.

Notary Public in

or the State of Texas


PATRICIA hMf SOLDUC My Commission Expires February 11,2018

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