Ashby Settlement

8/2/2019 Ashby Settlement

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J4 6 14SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE ^This Settlement Agreement and Full and Final Release ("Agreement") is entered into by

and between Plaintiffs, Maryland Manor Associates and Buckhead Investment Partners. Inc., andDefendant, City of Houston.

I. DEFINITIONS1. "Agreement" means this Settlement Agreement and Full and Final Release.2. "City" means the City of Houston, Texas, a Texas home rule municipality, and its

agents, assigns, successors, predecessors, or other persons acting or purporting toact 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 arisedirectly or indirectly out of or in connection with the City'shandling of the Project prior to the Effective Date of thisAgreement.

b. Subsection (a), above, includes all such claims, demand, or causesof action for alleged violations of any state or federal civil rights(including 42 U.S.C. 1983, substantive or procedural dueprocess, or equal protection), statutory vested rights, inversecondemnation, regulatory taking, trespass, unjust enrichment,injunctive relief, mandamus relief, constructive trust and/orresulting trust;

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c. Subsection (a), above, includes all such demands and causes ofaction of any nature, whether in contract or in tort, or arising underor 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 lossesand damages of any kind, including but not limited to thefollowing: 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 thatare now recognized by law or that may be created or recognized inthe future in any manner, including without limitation byconstitution, statute, regulation, or judicial d ecision.

4. "Consideration" meansa. Plaintiffs' agreement to conditionally dismiss, with prejudice, the

Claims;b. City's agreement to approve the Revised Plan;c. the Parties' execution of this Agreement and the Notice of

Settlement and Joint Motion for Conditional Dismissal withPrejudice ("Notice"), and cooperation in obtaining the Court'sexecution of the Agreed Order for Conditional Dismissal withPrejudice attached to the Notice; and,


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d, the Parties' execution of the Covenants.5. "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 etal. v. City of Houston.

8. "Owners" means any person, partnership, trust, corporation, limited liabilitycompany or other legal entity that, now or in the future, owns a fee simple realproperty interest in the Project or the Property, including but not limited to itspresent fee simple owner, Maryland Manor Associates. Owners exclude anytenant, licensee, easement holder or lien holder.

9. "Parties" means the P laintiffs and City.10. "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 onbehalf of any Plaintiffs.

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


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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 ManorAssociates dated Decem ber 20, 1993, recorded under C lerk's File No . P629709 ofthe 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 theCity, and as revised thereafter, known in various stages and times within the Cityas Project No. 07042588, approved by the City on August 25, 2009, and Project

No. 11091510 and as further revised and described in this Agreement.I I . T H E A G R E E M E N T

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 theConsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties herebyagree as follows:

1. Conditional Dismissal with Prejudice: Plaintiffs agree to conditionallyRELEASE, ACQUIT, and FOREVER DISCHARGE the City from all Claims.Plaintiffs' release, acquittal, and discharge of all Claims is conditioned upon theCity abiding by the term s of this Agreem ent. If the City does not abide by theterms of the Agreement, Plaintiffs may invoke the conditional nature of thisdismissal by filing a motion in the Court, where Plaintiffs will bear the burden inestablish ing that the City comm itted a material breach of the Agre eme nt. N ounreasonable delays by Plaintiffs in submitting the construction plans to the City


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will serve as a basis for the City's breach of this Agreement and shall not serve asa reason for the invocation by Plaintiffs to reinstate this Lawsu it. Thedetermination of whether the City has committed a material breach of theAgreement shall be made by the Court and the Parties will seek to have the matterheard by the Ho norable Judge Lee H. Rose nthal. If Plaintiffs m eet that burden,the Lawsuit shall be reinstated, and Plaintiffs may continue to litigate the Claimsin these proce eding s through final judicial resolution. In the event the Lawsuit isreinstated, this Agreement will in no way be construed as a waiver of any of theCi ty's defenses to any Claims in the Lawsuit. In the event that the Law suit isreinstated, the Parties agree to submit a Joint Motion for Entry of a SchedulingOrder to govern future proceedings.

2. Expiration of the Conditional Nature of the Dismissal: An Agreed Order forConditional Dismissal with Prejudice, as attached to the Notice, will be submittedtimely to the Court. The Parties agree that, unless Plaintiffs have filed in theCourt a request that the Lawsuit be reinstated, the conditional dismissal withprejudice w ill beco me final and irrevocable on March 3 1, 20 13 , and the Lawsuitcannot be reinstated for any reason after such dismissal becomes final.

3 . Cooperation in Filing and Obtaining the Conditional Dismissal: The Partieswill execute and file the Notice and cooperate in obtaining the Court's executionof the Conditional Dismissal Order.

4. The Revised Plan: The City will approve all applications for building permitsfor the construction of the Revised Plan, which otherwise comply with the City's


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codes, regulations, and ordinances applicable to the Project, if the Revised Planmeets the following requirements:a. Uses and Size s: A residential or mix ed-use residential and comm ercial

development on the Property with 228 residential high-rise units, 10,075square feet of quality restaurant use, and four residential tow nho me s. Theuses in the Revised Plan may be modified from those set out above butonly if: (i) the remaining requirements listed below in II(4)(b) throughII(4)(i) continue to be met; and (ii) the modifications do not result in adesign that generates, as measured by the standards and practices of theInstitute of Transportation Engineers, more than 104 net PM peak hourtrips (if credits for internal capture, pass-by, transit, and demandmanagement are taken) or more than 115 net PM peak hour trips (if creditsfor pass-by, transit, and demand managementbut not internal captureare taken).

b. Stories/Pedestrian Plaza: Structures must not exceed 21 stories aboveground level (including parking, residential and commercial stories, butexcluding the top roof level). The Revised Plan shall include a pedestrianplaza as is depicted on Page or Drawing LSI 10 to the original foundationand site work permit plan originally filed with the City on July 30, 2007,for an earlier version of the Project, attached her eto as "Exh ibit 1" andma de a part hereof for all purpo ses. Ha rdscape and landscape items suchas planters, bedding, trees, fountains and artwork may be reasonably


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added, moved or reconfigured within the plaza as long as the plaza layoutis 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 followinguses: (i) loading/unloading of trucks sized SU or smaller ("PermittedTrucks"); (ii) entry and exit to and from the Property and Project ofPermitted Trucks engaged in loading/unloading; and (iii) passengervehicles exiting, but not entering, the Property or Project. All trafficexiting the Property or Project through the Ashby Driveway must bedirected to turn right only.

d. Bissonnet Driveway: One curb cut is permitted onto Bissonnet Street(the "Bissonnet Driveway") as shown on Exhibit 1. The BissonnetDriveway may be utilized by all traffic both entering and exiting theProperty or Project. Exiting and entering of large trucks onto the Propertyor Project using the Bissonnet Driveway (requiring backing into the rightof way with flaggers) must be restricted to anytime on Saturday andSunday, and between the hours of 9:00 a.m. to 4:00 p.m. on Mondaythrough Friday.

e. Traffic Mitigation Measures: The then current Owners must provideduring the duration of the Covenants: (i) a no-charge shuttle serviceavailable for residents' use, with the capacity to carry at least 15 peopleper vehicle, to run back and forth between the Project and the TexasMedical Center at least twice each non holiday (holiday includes only

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recognized federal holidays) weekday morning between the hours of 7:00a.m. and 9:00 a.m., and at least twice each non holiday (holiday includesonly recognized federal holidays) weekday afternoon between the hours of4:00 p.m. and 6:00 p.m., provided the shuttle need not operate if noresident is using the shuttle at that time, so long as the shuttle remainsavailable for use upon call by a resident; and (ii) at least 10 bicycles willbe made available for residents' tem porary us e, at no charge. If theProject becomes a condominium, the cost of the foregoing may beincorporated into a condominium assessment, if applied proportionally toall Owners.Property Line Fence: The then current Owners must erect and maintain,or cause to be erected and maintained, during the duration of theCovenants, an 8-foot tall wooden fence or masonry wall matching theexterior of the building, with no visibility through the fence or wall, alongthe south and east property lines of the Property, as evidenced in theProject and Revised Plan.Green Wall Screening: The then current Owners must ensure during theduration of the Covenants that the entire south and east walls of theProject's parking garage, which must not exceed 5 stories (excluding thelevel on top of the parking garage), must have an exterior vegetativecovering system (e.g., trellis or wall system), subject to the City's buildingcode requirem ents, such as (but not limited to) ventilatio n. The thencurrent Owners must ensure during the duration of the Covenants that the


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vegetative covering system must be installed and maintained consistentwith good practices for similar screening devices in the real estateindustry. The degree of actual coverag e from tim e to time may varyconsidering the physical conditions impacting the Project, includingtechnical and horticultural feasibility.

h. Li%ht Sc ree nin g: The then current Owners must ensure during theduration of the Covenants that the now existing adjacent residences arereasonably and practically screened from the direct impact of garagelighting and vehicle headlights inside the garage, such as with green wallscreening described in Section I1.4(g) above, as permitted by buildingcode requirements (including, but not limited to, those for ventilation).The then current Owners must ensure during the duration of the Covenantsthat all exterior lighting fixtures, including but not limited to any lightingfixtures on any amenity floor, must be hooded or directed away from thenow existing adjacent residences, so that the light source is not visiblefrom those residences.

i. Noise Mitigation for the Equipm ent/Pump Roo m: The then currentOwners must ensure during the duration of the Covenants that theProject 's and Revised Plan's equipment and pump room(s) are enclosedwith concrete walls and steel doors so as to mitigate noise.

5. Covenants: Plaintiffs and Owners agree that the provisions stated in SectionII(4)(a)-(i) are set forth in the restrictive covenants attached hereto as "Exhibit 2"(herein, the "C ove nant s"). Plaintiffs and Ow ners further agree that these


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Covenants are perpetual in nature and shall remain in full force and effect duringall periods in which the Project and the Revised Plan is occup ied. In the event ofany conflict between the Project and the Revised Plan as set forth above in thisAgreement and the Covenants, the Covenants shall control.

6. Specific Performan ce Remedy: The City's legal remedies for the breach of theCovenants shall include (but are not be limited to) specific performance.

7. Recording of Covena nts: The Parties agree that the Covenants must be dulyrecorded in the Harris County Real Property Records, as real covenants which run

with the land, binding under Texas Real Property law on Plaintiff MarylandManor Associates during its ownership of the Property and Project, and thereafterall Owners, promptly after entry of the Conditional Dismissal Order by the Courtimplementing this Agreement.

8. Com mun ications with Media and Residents: The City will be solelyresponsible for the initial announcement of this settlement to the media andresidents.

III. REPRESENTATIONSIn return for the Consideration, the Parties represent as follows:1. Before executin g this Agre em ent, they becam e 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 theProperty.


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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 anyclaim for legal fees, costs, or expenses associated with the Lawsuit, the Property,the Project, Revised Plan, or the Claims, each party acknowledges and representsto the other party that the party incurring the fees, costs, or expenses are solelyresponsible 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 benefitthat shall ever be received as a result of the Lawsuit.

6. They recogn ize that the recitations contained in this Ag reem ent are contractualand not a mere recital.

7. Plaintiffs have not sold, transferred, pledge d, or assigne d, in wh ole or in part, anyof 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 arisingfrom such sale, transfer, pledge, or assignment.

8. They are not relying on any prom ises or represen tations of any kind ma de to themexcept as is expressly stated in this Agreement and expressly disclaim reliance onany promises or representations that are not expressly included herein. Thisprovision is meant to satisfy the requirements of Forest Oil Corp. v. McAllen, 268S.W.3d 51 , 60 (Tex. 2008) and its proge ny, and co nclus ively n egates anyevidence of reliance for any future claims.

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9. They specifically represent and warrant that they have full authority to bind suchentity and/or persons to this Agreement.

IV. MISCELLANE OUS PROVISIONS1. 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. This Agreement is not an admission of liability and shall not be construed as such.3. 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, withoutregard to conflict of laws principles. The Parties agree that any future d isputearising out of this Agreement, the Property, the Project, the Revised Plan, or theClaims must be resolved in the United States District Courts for the SouthernDistrict of Texas, located in Houston, Texas, and the Parties expressly consent tothe jurisd iction of that court. If jurisdictio n ca nnot be had in the United StatesDistrict Courts for the Southern District of Texas, located in Houston, Texas, theParties 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 DistrictCourts of Harris County, Texas.

4. If any portion of the Agreement is found to be unenforceable, it shall be severedfrom the Agreement and shall not affect the enforceability of the remainingprovisions in the Agreement, except if the obligation for the City to approve theRevised Plan is unenforceable, then, at Plaintiffs' option, this Agreement shallterminate and the Lawsuit shall be reinstituted as if not dismissed.

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5. The language herein shall not be construed for or against any particular party.6. Any signed coun terpart of this Agre em ent shall be deem ed to have the force and

effect of an original.7. This Ag reem ent shall not be modified or altered in any wa y except in writing and

executed by all Parties hereto.8. The Parties will not unreasonab ly withh old, condition or delay any approval,

permit, or consent required hereunder.9. The Parties shall execute such further docu men tation to implem ent and to

evidence the settlement of the Lawsuit as reasonably necessary considering thenature of the Project and Revised Plan.

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

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


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Plaintiff Maryland Manor AssociatesMARYLAND MANOR ASSO CIATES, a Texas General Partnership

By: HA M f XI, LLC, a

By:

Date:

imited liability company, General Partner

THE STATE OF TEXAS

COUNTY OF HARRISBEFORE 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 inthe capacity therein stated.GIVEN UNDER MY HAND AND SEAL OF OFFICE on th is ^N d ay of < ^or^^r^ ,2012. ^ ~(SEAL)

Notary Public in and State of Texas PATRICIA AMY BOLOUCMy Commission EipiresFebruary 11.2015

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Pla in t i f f Mary land Manor Assoc ia tesMARYLAND MANOR ASSOCIATES, a Texas General Partnership

By: HA MG XI, fcLC, a Texa s limited liability com pany , General Partner

By:KEVIN M. KIR IO N, M anager

i n - " > . - ! < >D a t e : *~- ~ , - \ /

THE STATE OF TEXASCOUNTY 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^ y p g ppAgreement and Full and Final Release, and stated under oath that the document was executed inthe capacity therein stated.GIVE N UNDE R M Y HAN D AND S EAL OF OFF ICE on t h i s ^ j ^ d a y

2 0 1 2 .(SEAI

N otary Public in an th e S tate of T ex as

v

P A T R IC IA A M Y B O L O O CM y C o m m i s s i o n i x p i r t sFebruary 11.2015


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Pla in t i f f Mary land Manor Assoc ia tesMA RYLA ND M AN OR ASSO CIAT ES, a Texas General Partnership

Bv: SEMKEN COI

Bv:

Date:

as corporation, General Partner

MATTHEW J . MORGAN

THE STATE OF TEX AS 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

Lu,

"AgreemenTand Full and Final Release, and stated under oath that the document was executed inthe capacity therein stated.GIVEN UNDER MY HAND AND SEAL OF OFFICE on t h i s Z f day o f r*Mt2012.

(SEAL)

Notarv Public in and for the^State of Texas PATRICIA Ait iOLDUCMy Commission ExpifisFebruary 11 , 201S


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Plaintiff Buckhead Investment Partners, Inc.Buckhead Investment Partners, Inc.A Texas Cf rloratipnBy:Name:Title: fifes

THE STATE OF TEXA S

COUNTY OF HARRISBEFORE ME, the undersigned authority, on this day personally appeared

MSQMM^ rmfQ&i-., known by me to be the person whose signature appears on this SettlementAgreement and Full and Final Release, and stated under oath that the document was executed inthe capacity therein stated.GIVE N UNDE R M Y HAND AND S EAL OF OF F ICE on t h i s 2 1 ^ a y o f

2012.(SEAL)

Notary Public in and^for the State of Texas/ ' PATRICIA AMY BOLDUCMy Commission ExpiresFtbruary 11,2015

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Defendant: City of Hou stonTHE CITY OF HOUSTON, TEXAS

By:Mayor .4Date signed: (J^~ (0i s i g n e d : _

AttestZSe'al

City Secretary

Approved:

City Attorney

Countersigned bv:

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


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I IsM i PROJECT XW X J S T O N . T C X A S S T E P L A NG R A D I N G P L A NEXHIBIT 1


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DECLA RATION OF RESTRICTIVE COVENA NTS

This Declaration of Restrictive Covenants (the "Declaration") is establishedWhd\ 1 , 2012 by MA RYL AND MA NOR ASS OC IATE S, a Texas general

partnership ("Declarant"), whose general partners are HAMG XI, LLC, a Texas limited liabilitycompany and SEMKEN CO RPO RAT ION, a Texas corporation.RECITALS:

1. Declarant owns the following land ("P rop erty ") in Harris County, Texas:All of EAST COURT, according to the map or plat thereof recorded underFilm Code No. 613296, of the Harris County Map Records, and also recordedunder Clerk's File No. 20070440486 of the Official Records of Real Propertyof Harris County, Texas.

2. Declarant desires to develop the Property and applied, through its affiliate BuckheadInvestment Partners, Inc., a Texas corporation ("Buckhead") to the City of Houston,Texas ("City") for building permits for the construction of a high rise, mixed useproject ("Project").3. Declarant, Buckhead and the City settled litigation relating to the approval of theProject, being Civil Action No. 4:10-CV-01736, in the United States Federal Courtfor the Southern District of Texas- Houston Division ("Lawsuit"), which includes theCity approving a variation of the Project ("Revised Plan"), subject to certaindevelopment requirements.4. This Declaration is for the benefit of the City as part of settlement of the Lawsuit toregulate the Revised Plan, if developed on the Property.NOW, THEREFORE, Declarant declares that the Property is subject to the followingrestrictive covenants, all of which shall run with the Property and be binding on all persons nowor 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 forthe benefit of the City, as a personal covenant, if and for so long as the Revised Plan isconstructed 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 itsagents and successors.


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2. "Owner(s)" means any person(s), partnership(s), trust(s), corporation(s), limitedliability companies or other legal entities that, now or in the future, owns a feesimple real property interest in the Project or the Property, including but notlimited to its present fee simple owner, Declarant, and including any owner of acond om inium unit in the Revised Plan. Ow ners excludes any tenants, licensees,lenders, easement holders or lien holders.

3. "Project" means the multistory, mixed-use development proposed by Declarantand Buckhead for the Property and described in the July 30, 2007, foundation andsite work permit application submitted by Buckhead to the City, and as revisedthereafter, known at various stages and times within the City as Project No.07042588.4. "Revised Plan" means the Project as revised and described in the August 4,2009, foundation and site work permit application submitted by Buckhead to theCity, 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 ProjectNo. 11091510 and as further revised and described in this Declaration.ARTICLE II:REVISED PLAN RESTRICTIONS

The Revised Plan consists of the following restrictions and requirements:1. Uses and Sizes: A residential or mixed-use residential and commercialdevelopment on the Property with 228 residential high-rise units, 10,075 squarefeet of quality restaurant use, and four residential town hom es. The uses in theRevised 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 thestandards and practices of the Institute of Transportation Engineers, more than104 net PM peak hour trips (if credits for internal capture, pass-by, transit, anddemand management are taken) or more than 115 net PM peak hour trips (ifcredits for pass-by, transit, and demand managementbut not internal captureare taken).2. Stories/Pedestrian Plaza: Structures must not exceed 21 stories above groundlevel (including parking, residential and commercial stories, but excluding the toproof level). The Revised Plan shall include a pedestrian plaza as is depicted onPage or D rawin g LS I 10 to the original foundation and site wo rk perm it planoriginally filed with the City on July 30, 2007, for an earlier version of theProject, attached hereto as "Exhibit 1" and made a part hereof for all purpo ses.Hardscape and landscape items such as planters, bedding, trees, fountains andartwork may be reasonably added, moved or reconfigured within the plaza as longas the plaza layout is not substantively modified.3. Ash by Driveway : One curb cut is permitted onto Ashby Street (the "Ashby


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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 engagedin loading/unloading; and (iii) passenger vehicles exiting, but not entering, theProperty or Project. All traffic exiting the Property or Project through the AshbyDriveway must be directed to turn right only.

4. Bissonn et Dr ivew ay: One curb cut is permitted onto Bissonnet Street (the"Bissonnet Driveway") as shown on Exhibit 1. The Bissonnet Driveway may beutilized by all traffic both entering and exiting the Property or Project. Exitingand entering of large trucks onto the Property or Project using the BissonnetDriveway (requiring backing into the right of way with flaggers) must berestricted to anytime on Saturday and Sunday, and between the hours of 9:00 a.m.to 4:00 p.m. on Monday through Friday.5. Traffic Mitiga tion M eas ure s: The then current Owners must provide during theduration 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 forthbetween the Project and the Texas Medical Center at least twice each non holiday(holiday includes only recognized federal holidays) weekday morning betweenthe hours of 7:00 a.m. and 9:00 a.m., and at least twice each non holiday (holidayincludes only recognized federal holidays) weekday afternoon between the hoursof 4:00 p.m. and 6:00 p.m., provided the shuttle need not operate if no resident isusing the shuttle at that time, so long as the shuttle remains available for use uponcall by a resident; and (ii) at least 10 bicycles will be made available for residen ts'temporary use, at no charge. If the Project becomes a condominium , the cost ofthe foregoing may be incorporated into a condominium assessment, if appliedproportionally to all Owners.6. Pr op ert y Line Fen ce: The then current Owners must erect and maintain, orcause 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, withno visibility through the fence or wall, along the south and east property lines ofthe Property, as evidenced in the Project and Revised Plan.7. Gre en Wall Scre ening : The then current Owners must ensure during theduration of the Covenants that the entire south and east walls of the Project'sparking garage, which must not exceed 5 stories (excluding the level on top of theparking garage), must have an exterior vegetative covering system (e.g., trellis orwall system), subject to the City's building code requirements, such as (but not

limited to) ventilation. The then current Ow ners must ensure during the durationof the Covenants that the vegetative covering system must be installed andmaintained consistent with good practices for similar screening devices in the realestate industry. The degree of actual coverage from time to time may varyconsidering the physical conditions impacting the Project, including technical andhorticultural feasibility.


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8. Light Screening: The then current Owners must ensure during the duration ofthe Covenants that the now existing adjacent residences are reasonably andpractically screened from the direct impact of garage lighting and vehicleheadlights inside the garage, such as with green wall screening described inSection II.4(g) above, as permitted by building code requirements (including, butnot limited to, those for ventilation). The then current Owners must ensure duringthe duration of the Covenants that all exterior lighting fixtures, including but notlimited to any lighting fixtures on any amenity floor, must be hooded or directedaway from the now existing adjacent residences, so that the light source is notvisible from those residences.

9. Noise Mitigation for the Equipment/Pump Room: The then current Ownersmust ensure during the duration of the Covenants that the Project's and RevisedPlan's equipment and pump room(s) are enclosed with concrete walls and steeldoors so as to mitigate noise.ARTICLE IIIDISPUTE RESOLUTION

Section 1. No tice and Cure Defaults. Upon any failure to perform or obser ve any term orcondition of this Declaration, Owners shall have thirty (30) days after receipt of written noticethereof from the City to cure such failure, provided however, that if the nature of such failure issuch that it cannot reasonably be cured within said thirty (30) day period, then additional time asis reasonably necessary to cure such failure shall be provided, so long as cure is commencedwithin said thirty (30) day period and cure proceeds with diligence and continuity in not morethan an additional ninety (90) days. If the Revised Plan has becom e a con dom inium , then thenotice shall be provided to the Condominium Assocation, according to the CondominiumInformation Statement for the Revised Plan, or any successor to such document which isrecorded 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. M ediation. In the event any dispute arises unde r this Dec laration, allparties to the dispute shall meet and negotiate in good faith to settle the dispute. If the disputecannot be resolved by negotiation, the dispute shall be submitted to mediation pursuant to theMediation Rules of the American Arbitration Association before resorting to litigation. If theneed for mediation arises, a mutually acceptable mediator shall be chosen by the parties to thedispute who shall share the cost of mediation services equally. All parties will meet with themediator who will try to resolve the dispute informally and confidentially. The mediator willfacilitate the resolution of any disputes but no settlement will be binding unless it is agreed to byall parties.ARTICLE IV:GENERAL PROVISIONS

Section 1. Duration. The covenants and restrictions of this Declaration shall run with andbind the Property only if and as long as the Project is constructed consistent with the RevisedPlan. If either i.) the land is developed with a building which is not the Rev ised Plan, or ii.) the


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Revised Plan is developed, but later demolished and removed, then this Declaration shallterminate automatically, and the City agrees to execute a termination document prepared byOwner.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 theDeclaration by proceeding at law or in equity including (without limitation) the right to specificperformance. Failure of the City to take any action upon any breach or default of or in anyrespect to any of the foregoing shall not be deemed a waiver of its right to take enforcementaction upon any subsequent breach or default.Section 3. No Other Beneficiaries. Declarant does not intend for this Declaration to inureto the benefit of any person other than the City, or for this Declaration to be construed to make orrender Owner liable to any owner, seller, purchaser, lender, lessor or lessee of any propertyowned by any person adjacent to or in the vicinity of the Property.

Section 4. No tices . Any notice required or permitted to be given under this Agreem entshall be in writing and shall be deemed to have been given on the 3 r d day after deposit in theUnited States Mail, Certified Mail, Return Receipt Requested, postage prepaid, and addressed tothe party being notified at the address given below (or such other party and address which anyparty may designate for itself from time to time hereafter by written notice to the other party):Ow ner: Maryland Manor Associates2536 Amherst, Suite FHouston, Texas 77005Attention: Matthew Morgan / Kevin KirtonCopy to: Wilson, Cribbs & Goren, P.C.

2500 Fannin StreetHouston, Texas 77002Attention: Reid C. WilsonCity: City of Houston Legal De partm entPO Box 368

Houston, TX 77001-0368Atte ntion: City AttorneyCopy to: Ann a Russell, City Secretary900 BagbyHouston, Texas 77002

Section 5. Limitation of Liability. Any Ow ner is liable for com pliance hereunderonly during their period of ow nership of a fee simple interest in the Prop erty. No lender orholder of any non-fee sim ple own ership interest in the Property has any liability hereunder. NoOwner of a condominium unit in the Property, if it becomes a condominium, has personalliability (but is liable for compliance and subject to specific performance), instead the


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Condominium Association for the Property (but not its members, officers and/or directors) shallhave liability for compliance with this Declaration.

Section 6. Interpretation. If this Declaration or any word , claus e, sentence, paragraphor other part thereof shall be susceptible to more than one or conflicting interpretations, then theinterpretation which is the most nearly in accordance with the general purposes and objectives ofthis 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 affectany of the other covenants, restrictions, conditions or provisions which shall remain in full forceand effect.Section 8. Termination/Amendments. This Declaration can only be terminated, amendedor modified by an instrument in writing signed by the City and all Owners at the time of suchtermination or amendment.Effective the date set forth above.

(signatures on the following pages)


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MA RYLA ND MAN OR ASSO CIAT ES, a Texas general partnershipBy: HA MG XI, LLC, a Texas

Bv:

B y :

limitec

M AT 'f HEW J. MOTRGA

liability company, its general partner

Manager4

K1R'T(5N, Manager

By: SEMKEN CORPO RAT

By:

"exas corporation, its general partner

THE STATE OF TEXASCOUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared MATTHEW J.MO RG AN , Manager of HA MG XI, LLC, a Texas limited liability com pany, as general partnerof MARYLAND MANOR ASSOCIATES, a Texas general partnership , known by me to be theperson whose signature appears on this Declaration of Restrictive Covenants, and stated underoath 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)ay of

PATRICIA AMY BOIOUCMy Oenwnisston ExpiresFebruary 11.2015

^ t i , 2012.

C5?*- 1 j Notary Public in andib rjfhe State of Texas


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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 ofMARYLAND MANOR ASSOCIATES, a Texas general partnership, known by me to be theperson whose signature appears on this Declaration of Restrictive Covenants, and stated underoath 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

Ashby Settlement

Documents

Transcript of Ashby Settlement