Case 4:10-cv-01736 Document 83

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARYLAND MANOR ASSOCIATES and BUCKHEAD INVESTMENT PARTNERS, INC., Plaintiffs, versus CITY OF HOUSTON, Defendant.

CIVIL CASE NO. 4:10-CV-1736

NOTICE OF SETTLEMENT AND JOINT MOTION FOR CONDITIONAL DISMISSAL WITH PREJUDICE TO THE HONORABLE JUDGE LEE H. ROSENTHAL: COME NOW, Plaintiffs Maryland Manor Associates and Buckhead Investment Partners, Inc. (Plaintiffs) and Defendant City of Houston (City) (collectively, the Parties) and file this their Notice of Settlement and Joint Motion for Conditional Dismissal with Prejudice, and in support thereof will show the Court as follows: 1. The Parties have reached a compromise and settlement of the matters in dispute in

this lawsuit (the Settlement), the terms of which are reflected in a Settlement Agreement and Full and Final Release (Settlement Agreement). 2. As part of the Settlement, the Parties ask the Court to enter a conditional dismissal

with prejudice of this lawsuit. The conditional dismissal will allow Plaintiffs to move forward with their revised Project in accordance with the terms of the Settlement Agreement. The dismissal is conditioned upon the Citys abiding by the terms of the Settlement Agreement. If the City does not abide by the terms of the Settlement Agreement, Plaintiffs can invoke the conditional nature of this dismissal by filing a motion in this Court, where Plaintiffs will bear the

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burden in establishing that the City committed a material breach of the Settlement Agreement. The determination of whether the City has committed a material breach of the Settlement Agreement shall be made by the Honorable Judge Lee H. Rosenthal. If Plaintiffs meet that burden, the lawsuit may be reinstated, and Plaintiffs may continue to litigate their claims in these proceedings through final judicial resolution. In the event that the lawsuit is reinstated, the Parties will submit a Motion for Entry of a Scheduling Order to govern future proceedings. 3. Notwithstanding anything else contained herein or within the Settlement

Agreement, the conditional dismissal with prejudice will become final and irrevocable on March 31, 2013, and the lawsuit cannot be reinstated for any reason after that date. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, the Parties jointly request this Court enter the attached, Agreed Order for Conditional Dismissal with Prejudice.

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Dated: March 13, 2012

Respectfully submitted and agreed to by:

BARRON & ADLER, L.L.P. /s/ Kimberli Deagen Loessin Kimberli Deagen Loessin Attorney-in-Charge Texas Bar No. 24004482 Federal Bar No. 910690 1421 Heights Blvd Houston, Texas 77008 Telephone: (713) 526-1500 Facsimile: (713) 526-1550 Stephen I. Adler Texas Bar No. 00927700 Barron & Adler, L.L.P. 808 Nueces Street Austin, Texas 78701-2216 Telephone: (512) 478-4995 Facsimile: (512) 478-6022
LAW OFFICES OF THOMAS E. SHEFFIELD

FULBRIGHT & JAWORSKI L.L.P. /s/ Edward B. Adams, Jr. Edward B. Adams, Jr. Attorney-in-Charge State Bar No. 00790200 Federal ID No. 19186 Fulbright Tower 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 Seth M. Isgur Texas Bar No. 24054498 Fed. ID No. 918729 Mary Beth Balhoff Texas Bar No. 24055136 Fed ID No. 1100377 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 Counsel for Defendant City of Houston

Thomas E. Sheffield Texas State Bar No. 18185400 Federal Admission No. 14228 609 Bradford Avenue, Suite 101 Kemah, Texas 77565 Telephone: (281) 549-4732 Facsimile: (281) 549-4735 Counsel for Plaintiffs Maryland Manor Associates and Buckhead Investment Partners, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARYLAND MANOR ASSOCIATES and BUCKHEAD INVESTMENT PARTNERS, INC., Plaintiffs, versus CITY OF HOUSTON, Defendant.

CIVIL CASE NO. 4:10-CV-1736

AGREED ORDER FOR CONDITIONAL DISMISSAL WITH PREJUDICE On this date came to be considered the parties Notice of Settlement and Joint Motion for Conditional Dismissal with Prejudice (Joint Motion for Conditional Dismissal). After

considering the Joint Motion for Conditional Dismissal, the Court finds that the motion should be GRANTED. It is therefore ORDERED that this lawsuit is hereby DISMISSED WITH PREJUDICE, subject to the conditions below. It is FURTHER ORDERED that this dismissal is conditioned upon the Citys abiding by the terms of the parties Settlement Agreement. If the City does not abide by the terms of the Settlement Agreement, Plaintiffs can invoke the conditional nature of this dismissal by filing a motion in this Court, where Plaintiffs will bear the burden in establishing that the City committed a material breach of the Settlement Agreement. The determination of whether the City has committed a material breach of the Settlement Agreement shall be made by the Honorable Judge Lee H. Rosenthal. If Plaintiffs meet that burden, the lawsuit may be reinstated, and Plaintiffs may continue to litigate their claims in these proceedings through final judicial resolution. In the

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event that the lawsuit is reinstated, the parties will submit a Motion for Entry of a Scheduling Order to govern future proceedings. It is FURTHER ORDERED that, notwithstanding anything else contained herein or within the Settlement Agreement, this conditional dismissal with prejudice will become final and irrevocable on March 31, 2013, and that the lawsuit cannot be reinstated for any reason after that date.

_____________________________ Lee H. Rosenthal United States District Court Judge