AGREEMENT REGARDING THE MILBY TRACT

This Agreement Regarding the Milby Tract is made this __ day of ______, 2014 between The Kinkaid School, Inc., a Texas non-profit corporation(“Kinkaid”) and the Stillforest Neighborhood Committee, a Texas non-profit corporation formerly an unincorporated association (the “Association”). This Agreement shall be referred to as the “Milby Tract Agreement”. The provisions of this Agreement are for the benefit of (i) all owners of any portion of the real property contained in Stillforest Subdivision (such Subdivision being herein called “Stillforest” and such owners herein called the “Stillforest Owners”), an unrecorded subdivision being the same real property encumbered by Restrictions (the “Stillforest Restrictions”) dated December 26, 1947, recorded at Volume 1706, Page 673 of the Deed Records of Harris County, Texas, as amended by the amended restrictions recorded under Harris County Clerks File No. J287409 on December 20, 1983 in the Official Public Records of Real Property in Harris Country, Texas, as renewed from time to time, most recently by Renewal and Extension of Reservations, Restrictions and Covenants of Stillforest Subdivision dated February 2, 2012, recorded under Clerk’s File No. 201220045675 of the Official Public Records of Real Property of Harris County, Texas, whether or not replatted into additional or successor subdivisions, (ii) the Association, and (iii) Kinkaid. Kinkaid and the Association may be collectively referred to as the “Parties” or individually as a “Party”.

RECITALS:

  1. Stillforest is a single-family residential community located in the City of Piney Point Village, Harris County, Texas (“COPPV”).
  1. The Association is a “Property Owners Association” as that term is defined in the Texas Property Code and its membership consists of all Stillforest Owners. By joining in the execution of this Agreement, the Association is acting in its capacity as the designated representative of the Stillforest Owners.
  1. Kinkaid is a private educational institution providing elementary, middle and high school education.
  1. Kinkaid is now located on a 40.76 acre tract of land east of Stillforest described in that certain deed dated October 4, 1990 recorded under County Clerk’s file number M68828, film code number 191-63-0542 of the real property records of Harris County, Texas (the “Kinkaid Tract”) and separated by a 24.53 acre tract previously owned by the Milby family and used for single-family residential purposes (the “MilbyTract”), being further described in a Special Warranty Deed dated September 21, 2010, recorded under Clerk’s File No. 20100407514 in the Real Property Records of Harris County, Texas on September 22, 2010 (the “Milby Deed”). Kinkaid acquired the Milby Tract, subject to the terms of that certain Memorandum of Life Tenancy and Protective Covenants executed September 21, 2010, and recorded under Clerk’s File No. 20100407515 on September 22, 2010, in the Real Property Records of Harris County, Texas (the “Memorandum”). The Memorandum limits Kinkaid’s access to and use of the Milby Tract during the life of Marjorie Jester Milby (“Mrs. Milby”).
  1. Kinkaid acquired the Milby Tract to expand its educational facilities.
  1. Kinkaid wishes to obtain from COPPV the right to develop and use the Milby Tract for school and educational purposes and to obtain the consent of the Association to such use, subject to this Agreement and to that certain Declaration of even date herewith between the Association and Kinkaid restricting the uses to which the Milby Tract may be used (the “Declaration”). As between the Parties, this Agreement and the Declaration are complementary documents and share equal standing. It is the intention of the Parties that both documents will be construed together and given that interpretation or construction which will best effect the intent of the Parties as therein reflected. Both the Declaration and the Milby Tract Agreement will be recorded in the Real Property records of Harris County, Texas.
  1. Kinkaid intends to seek COPPV approval for the use of the Milby Tract to permit the use of the Milby Tract for school and educational purposes. Kinkaid and the Association are executing this Agreement (i) to limit the use of the Milby Tract, (ii) to permit the development of the Milby Tract subject to the limitations and restrictive covenants contained in this Agreement and (iii) to limit and restrict the use of the Milby Tract at the request of the Association and the Stillforest Owners.

COVENANTS:

NOW, THEREFORE, for and in consideration of the mutual benefits to accrue to Kinkaid and the Association under this Agreement and the Declaration, the Parties hereto for themselves and their successors, do hereby agree to the covenants, agreements and conditions hereinafter set forth which shall run with the land and shall be binding upon all parties having any right, title, or interest in or to the Milby Tract, or any part thereof, and their heirs, successors, representatives and assigns, and shall also be binding on the Association. In no event shall anything in this Agreement apply to the Kinkaid Tract or its use or to the Stillforest Subdivision.

1.Milby Sports Fields and Other Sports Facilities. Kinkaid agrees that it will make an affirmative effort to restrict the use of the Milby Sports Fields and Other Sports Facilities to the permitted times set forth herein, and will communicate to students, parents and alumni that the Milby Sports Fields and Other Sports Facilities are intended for student use only during school hours and the other hours specified in this Agreement, and are not intended as an amenity or sports facility for Kinkaid families or alumni. Such affirmative effort will be enforced by signage, by policy, and by roving patrol. The entrance to the Milby Sports Fields, if same are enclosed by fencing, will be closed by means of a locked gate to deny access and use on weekends.

2.Other Structures. The building codes of COPPV, or any successor municipality, will be respected in any such construction, except that nothing other than security requirements of the municipality will diminish more stringent standards provided by this Agreement. For any building constructed on the Milby Tract the internal lighting of which is visible from Stillforest, Kinkaid will install and close at night blinds to prevent the escape of an unreasonable amount of light. All external lighting on the Milby Tract will be aimed in an easterly direction away from Stillforest (unless otherwise required for safety purposes or by COPPV code).

3.Internal Roadways. Kinkaid agrees to cause landscaping to be planted, maintained and irrigated to obscure vision of the Gravel Service Drive permitted under the Declaration and any vehicles on such Gravel Service Drive by residents in Stillforest. Except where it shares ground space with the nature trail described in the Declaration, the Gravel Service Drive may not be used for recreational walking or other recreational purposes by students, alumni or affiliated families at any time. The use prohibition will be enforced by signage, by policy, and by roving patrol. The entrance to the Gravel Service Drive will be closed by means of a locked gate to deny vehicular use on weekends. The Gravel Service Drive will not have any artificial lighting, except as required by COPPV or as required to meet prudent safety standards. A hedge or similar landscaping along all internal roadways will be planted, maintained and irrigated as necessary to prevent the headlights of vehicles on the Milby Tract from unreasonably shining into Stillforest.

4.Fencing and Access. Subject to obtaining any required approval of COPPV, Kinkaid will build a 6-foot tall, black plastic coated chain link fence the length of the Stillforest/Milby Tract property line and will maintain such fence in good repair so that it performs its intended purpose. Any Stillforest property owner whose property abuts the Milby Tract may, at his expense and risk, construct a gate to allow access to the Kinkaid school by (a) Kinkaid students who are immediate family members of such owner and (b) any other Kinkaid students who are also Stillforest residents and that such owner invites. Any such gate must be locked from the resident's side and only opened for the movement of children and their family members to and from the Kinkaid school. Any homeowner who builds such a gate will do so only after entering into a release or other agreement, including any indemnity provision required by Kinkaid. For security purposes Kinkaid may lock any such gate from its side at any time and deny this access right. The gate at the headmaster's property shall not be available for use by any Stillforest residents to access the Milby Tract. In no event shall any provision of this Section or of this Agreement be considered as the granting of any easement, right of way or other property right to Stillforest or any Stillforest Owner and Kinkaid may take any action it elects to take in order to prevent any implied easement or right of way being created.

5.Buffer Landscaping. Kinkaid is entering into this Agreement, among other reasons, in order to provide the Buffer Zone for the Stillforest Owners in order to mitigate sound from regular educational, athletic and other activities on the Milby Tract, and to also minimize the view of buildings and structures on the Milby Tract. The landscaping in the Buffer Zone is intended to be designed to prevent any view of Kinkaid activities or structures from an adult standing in a second floor window in adjacent Stillforest homes. However, it is agreed that from time to time, because of the acts of nature, including time for growth of vegetation, fulfilling the intent and purpose of the landscaping may be unattainable, which shall not be a default under this Agreement. The Buffer Zone is to be landscaped and maintained in accordance with the Buffer Landscape Plan (defined below). In addition, Kinkaid agrees that it will not destroy the existing trees or foliage in the Buffer Zone or otherwise alter the existing natural grade of the Buffer Zone in a manner that would adversely affect the drainage from Stillforest, except as required to implement the Buffer Landscape Plan or to install the underground storm sewer system as described herein. To aid in assuring compliance with this Agreement, a row of recognizable small bushes of approximately 1-foot height will be placed (without removing trees that are located in the row of the small bushes) along the 62-foot setback line or the 100-foot setback line, as appropriate. Notwithstanding anything in this Agreement to the contrary, Kinkaid may provide for and modify any landscaping, including existing foliage, for the purpose of creating and maintaining pathways through the Buffer Zone for authorized pedestrians to permit (i) access to and from school, (ii) patrolling and investigating the condition of the Buffer Zone, and (iii) maintenance of the landscaping in the Buffer Zone (which may include the occasional use of small landscape maintenance vehicles).

Kinkaid shall retain a qualified landscape architect that has at least 10 years experience in commercial landscape architecture in Houston Texas and has competence and experience in landscaping buffer areas (the “Qualified Landscape Architect”) to develop a plan that is mutually acceptable to Kinkaid and the Association. The plan must be intended to achieve the visual and sound mitigation effects set forth in this Agreement, and to provide for the long term maintenance and irrigation of the Buffer Zone. Kinkaid will select a Qualified Landscape Architect, and develop a landscaping plan that will be submitted to the Association for approval. The Association may either (i) approve the landscape plan as submitted by Kinkaid and the Qualified Landscape Architect, (ii) retain a landscape architect to suggest changes to the landscaping plan submitted by Kinkaid, or (iii) attempt to otherwise negotiate mutually acceptable changes to the landscaping plan.

Kinkaid has retained a Qualified Landscape Architecture firm as the initial “Qualified Landscape Architect” which has, at Kinkaid’s expense, inspected the Buffer Zone, conducted a tree survey and prepared the detailed landscaping, irrigation and maintenance plan for the initial Buffer Zone for use by the parties (the “Buffer Landscape Plan”). The irrigation system shall be satisfactory to provide consistent and proper irrigation to maintain the Buffer Zone. The Buffer Landscape Plan will include written descriptions of the required characteristics of the area to be landscaped, including the minimum densities of plants and/or trees to be planted and maintained in the Buffer Zone. Once approved by the Association, the Buffer Landscape Plan will be executed by both parties and will be included as Exhibit A to this Agreement. Kinkaid, at its own expense, will then implement the Buffer Landscape Plan after receiving Governmental Approval (as defined below) to develop the Milby Tract as follows: (i) Kinkaid will plant the trees hereinafter mentioned in the paragraph labeled “Additional Vegetation” as soon as practical, and in no event later than 120 days after the date of this Declaration and the procurement of permission from the current resident of the Milby Tract, and (ii) Kinkaid shall, implement the Buffer Landscape Plan within 90 days in a manner consistent with this Agreement, with the intent that Kinkaid shall maintain the Buffer Zone consistent with the intents and standards set forth herein and in the Buffer Landscape Plan. As used herein, “implement” shall be interpreted as sticking a shovel in the ground and planting things, and not further planning. Kinkaid agrees that the installation of plants and trees under the Buffer Landscape Plan shall be prosecuted diligently. Notwithstanding the foregoing, without the termination of the resident’s life estate or without the permission of the current resident of the Milby Tract, no landscaping work shall be conducted on the portion of the Milby Tract covered by the Milby life estate or which necessitates access through the property subject to the Milby life estate.

For purposes of this Agreement, “Governmental Approval” shall be defined as that date when Kinkaid has received the approvals, licenses and permits required by any and all governmental and quasi-governmental entities to change the use of the Milby Tract from single-family residential to educational and related purposes, including approvals for platting and construction permits for the construction of the first facilities, other than the Stadium Garage (as defined in the Declaration).

The Buffer Landscape Plan shall be updated whenever the Buffer Zone is re-designated, at Kinkaid’s cost and initiative, by a Qualified Landscape Architect. The revised Buffer Landscape Plan shall not be commenced until approved by the Association. Copies of the any proposed updated Buffer Landscape Plan will be promptly provided to the Association and will be subject to its approval. Any revised Buffer Landscape Plan that is mutually acceptable shall be executed by both parties and shall become part of this Agreement and be recorded in the real property records of Harris County.

The Parties agree that the Buffer Landscape Plan is an exhibit to this Agreement and that it must be completed and executed prior to or contemporaneously with the execution of this Agreement.

6.Rights of Inspection. Designated representatives or agents of the Association may inspect the Milby Tract at its and their sole cost and risk at reasonable times to verify compliance with this Agreement.

7.Traffic Control. Kinkaid will continue to provide traffic control at the intersection of San Felipe and Stillforest Lane to mitigate the effect of school related traffic during peak arrival and dismissal hours as well as preceding and after conclusion of special events, for as long as Kinkaid is providing traffic control at any of its entrances or exits that intersect with San Felipe.

8.Additional Vegetation. At the earliest opportunity consistent with the current resident's life estate or with the permission of the current resident of the Milby Tract, Kinkaid will plant, on approximately 20-foot centers, pine and oak trees in equal proportion to increase the sight and sound buffer between Stillforest and the Kinkaid property. Kinkaid agrees to seek permission of the current resident of the Milby Tract to plant the trees contemplated in this paragraph. The trees will be planted in two approximately parallel bands located at a distance of approximately 5 and 35 feet from the western Milby Tract property line, respectively. In each band, the trees will be spaced approximately 40 feet apart, and offset from the other band of trees, so that if the bands were combined, the distance between each tree would be approximately 20 feet. The parties agree that the number of trees to be planted under this provision is approximately 100 to 120 trees. The Parties agree that the location of the trees will be determined in accordance with the Buffer Landscaping Plan as agreed to by the Parties. The trees to be planted pursuant to this provision shall be not less than (40) gallons in size. Kinkaid agrees that it will install an above ground, temporary irrigation system in the Buffer Zone that will be used with the same frequency and manner as other irrigation systems on the Kinkaid Tract to sustain the newly planted trees and other vegetation in the Buffer Zone prior to the full implementation of the Buffer Landscape Plan.