Electronically Recorded = ‘2!ant County Texas Official Public Records 2008 Dec 02 02:34 PM mn 4000 D208442421 Ffigenma/ Mintcone) Ssusrtt LANDATA 7 Pages Y STE TTSBO IS. 794 | NRI 22 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (hereinafler “Declarati is made by MHI PARTNERSHIP, LTD. (hereinafter “Declarant”), a Texas limited partners as follows: RECITALS A. Property Address: 713 RIDGEWATER TRAIL FT. WORTH, TX. 76131 (hereinafter “Property,” consisting improvements thereon).
B. Seller: MHI Partnership, LTD (hereinafter “Seller’”).
Ce Buyers(s): JEFFREY J. SPANGY ISSA C, SPANGLER (hereinafter colkive - 3 Whether one or more).
Dd. Legal Description: E. Closing Date: -Lérerrsocd makes this Declaration for the purpose of subjecting the Property to one or Lictive covenants as more particularly described below. Buyer joins herein 8 6 evidence Buyer’s acceptance of the Property subject to this Declaration and Buyer’s agreement to the terms and conditions hereof.
NOW, THEREFORE, Declarant hereby subjects the Property to the covenants, conditions and restrictions more particularly described below.
9/01/07 Declaration of Restrictive Covenants Page 1 of 7 DECLARATION 1. Recitals. The Recitals set forth above are incorporated herein as a substantive part of this Declaration.
2. Successors and Assigns; Covenants Running with the Property. The benefits of this Declaration shall inure to the benefit of the parties and their respective successors and assigns (including any future owner or occupier of the Property), and the burdens and obligatians of this Declaration shall be binding upon the parties and their respective successors and assig (including any future owner or occupier of the Property), and shall be deemed to be cgvena
d obligatians of this Declaration shall be binding upon the parties and their respective successors and assig (including any future owner or occupier of the Property), and shall be deemed to be cgvena that run with the Property. For purposes of this Declaration, the term “Holder” sha Buyer, together with any holder of any legal or equitable interest in the Property, right of occupancy. BY ACCEPTANCE OF A DEED TO THE PROPE PORTION THEREOF, OR BY OCCUPANCY OF THE PROPERTY OF 3. Term. Except as provided below, this Declarat (15) years (the “Covenant Period”) commencing on the Covenant Period, this Declaration shall automatically eXp except as to arbitration and/or legal proceedings whic expiration. In those instances, this Declaration shall g and be oft further force or effect, ¢ in progress at the time of its the proceedings in progress at appealable arbitration award or judgment. Notwithstahding/the foregoing, if Declarant, Seller or an affiliate of them becomes the holder 9 NN 6 the Property, this Declaration shall automatically terminate and be of ng furt moneffect as to Declarant, Seller, such affiliate, or the Property.
4, A EMENT TO ARBITRATE. ANY CLAIM OR CONTROVERSY Al OF OR RELATING TO THE CONTRACT, THE BREACH THEREQI RELATING DIRECTLY OR INDIRECTLY TO THE CONTRACT, T SE, CONSTRUCTION OR REPAIR OF THE HOME AND IMPROYEM ARE THE SUBJECT OF THE CONTRACT, AND/OR THE PROPERTY, G ANY AND ALL CLAIMS AGAINST SELLER AND/OR SELLER'S S, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, E §, DEVELOPERS, SUBCONTRACTORS, MATERIALMEN, SUPPLIERS, MA ACPURERS OR OTHER THIRD PARTIES JOINED IN ACCORDANCE WITH SUBPARAGKAPH 25.E OF THE CONTRACT OR PARAGRAPH 4.E HEREOF, SHALL
ICERS, DIRECTORS, E §, DEVELOPERS, SUBCONTRACTORS, MATERIALMEN, SUPPLIERS, MA ACPURERS OR OTHER THIRD PARTIES JOINED IN ACCORDANCE WITH SUBPARAGKAPH 25.E OF THE CONTRACT OR PARAGRAPH 4.E HEREOF, SHALL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, 9 U.S.C., § 1, ET SEQ. HOLDER IRREVOCABLY ACKNOWLEDGES AND AGREES THAT THE TRANSACTION MADE THE BASIS OF THE CONTRACT INVOLVED AND AFFECTED INTERSTATE COMMERCE.
9/01/07 Declaration of Restrictive Covenants Page 2 of 7 / B. ARBITRATION OF CONSTRUCTION DEFECT DISPUTES. THE PROPERTY IS SUBJECT TO THE TEXAS RESIDENTIAL CONSTRUCTION COMMISSION ACT, TEX. PROP. CODE ANN. § 401.001, ET SEQ. (AS AMENDED) (THE “ACT”), IF THE DISPUTE IS FOR ONLY (1) ONE (1) OR MORE ALLEGED “CONSTRUCTION DEFECTS” (AS DEFINED BY THE ACT), (II) THE CLAIMANT(S) SEEKS ONLY THOSE REMEDIES APPLICABLE TO CONSTRUCTION DEFECTS AVAILABLE UNDER THE ACT, AND (II) THE CLAIMANT(S) ASSERTS NO OTHER CLAIMS AND SEEKS NO OTHER REMEDIES APART FROM (1) AND (II), THEN THE ARBITRATION SHALL BE CONDUCTED AND ADMINISTERED ACCORDANCE WITH THE BUILDER LIMITED WARRANTY (AS DEFINED CONTRACT).
Cc. ARBITRATION OF ALL OTHER DISPUTES. IN ALL CA ARE NOT GOVERNED BY SUBPARAGRAPH 4.B ABOVE (INCLYDIN LIMITATION, ALL INSTANCES WHERE CONSTRUCTION_DEFE( JOINED WITH OTHER CLAIMS), THE ARBITRATION HALP Bk BY THE AMERICAN ARBITRATION ASSOCIATION (“A4 WITH ITS CONSTRUCTION INDUSTRY A SUPPLEMENTED BY AAA SUPPLEMENTARY RELATED DISPUTES, WHERE APPLICABLE) 1 DEMAND FOR ARBITRATION IS FILED. AAA RAST TRACK PROCEDURES SHALL APPLY ONLY UPON THE FURTH# TEN CONSENT OF ALL PARTIES TO THE ARBITRATION PROGKE oy , re A. REASONABLE TIME AFTER D RTY REQUESTING RELIEF SHALL THE CONTROVERSY HAS ARISEN ATION AND PAY APPLICABLE FILING oo FEES. THE ARBITRATIG oh CANNOT AGREE, APPOINTED IN AC(¢
ARBITRATION PROGKE oy , re A. REASONABLE TIME AFTER D RTY REQUESTING RELIEF SHALL THE CONTROVERSY HAS ARISEN ATION AND PAY APPLICABLE FILING oo FEES. THE ARBITRATIG oh CANNOT AGREE, APPOINTED IN AC(¢ i3 PO THE SELECTION OF SUCH ARBITRATOR, THEN THERE EB (3) NEUTRAL ARBITRATORS APPOINTED IN ACCORDANCE PLYCABLE ARBITRATION RULES, WITH THE COST OF THE TWO AY, ARBITRATIORS BEING ADVANCED BY THE SELLER. UNLESS THE CABLE ARBITRATION RULES MANDATE OTHERWISE, ALL ARBITRATORS SHALL BE ATTORNEYS AT LAW, LICENSED TO PRACTICE IN THE STATE OF TEXAS, WITH SUBSTANTIAL EXPERIENCE IN THE SINGLE FAMILY RESIDENTIAL CONSTRUCTION INDUSTRY. IF THERE IS ONLY ONE (1) ARBITRATOR, HIS CONCLUSIONS SHALL BE BINDING AND CONCLUSIVE ON THE PARTIES. IF THERE ARE THREE (3) ARBITRATORS, THE DECISION OF ANY TWO (2) SHALL BE BINDING AND CONCLUSIVE. COSTS OF ARBITRATION 9/01/07 Declaration of Restrictive Covenants Page 3 of 7 SHALL BE ALLOCATED BETWEEN OR AMONG THE PARTIES AS PROVIDED BY THE APPLICABLE ARBITRATION RULES, OR IN THE ABSENCE OR INAPPLICABILITY OF SUCH RULES, AS DETERMINED BY THE ARBITRATOR(S).
IF ANY PARTY COMMENCES LITIGATION IN VIOLATION OF THIS DECLARATION, OR FAILS OR REFUSES TO TIMELY SUBMIT TO ARBITRATION IN ACCORDANCE WITH THIS CONTRACT, SUCH PARTY SHALL REIMBURSE THE OTHER PARTY FOR THE COSTS AND EXPENSES, INCLUDING ATTORNEY'S FEES: (A) INCURRED IN SEEKING A STAY, ABATEMENT OR DISMISSAL QF SUCH LITIGATION; OR (B) INCURRED IN JUDICIALLY COMPELL ARBITRATION. THE FOREGOING DOES NOT PRECLUDE A PARTY SEEKING EMERGENCY RELIEF FROM A COURT OF COMPS JURISDICTION AND THE PROSECUTION OF A REQUEST FOR EN Cc RELIEF WILL NOT BE DEEMED A WAIVER OF THE ARBITRATION } ON CONTAINED HEREIN.
E. JOINDER: THE PARTIES AGREE THAT k QIN IN ANY ARBITRATION PROCEEDING CONDUCTED HEREU] X MORE OF
ON OF A REQUEST FOR EN Cc RELIEF WILL NOT BE DEEMED A WAIVER OF THE ARBITRATION } ON CONTAINED HEREIN.
E. JOINDER: THE PARTIES AGREE THAT k QIN IN ANY ARBITRATION PROCEEDING CONDUCTED HEREU] X MORE OF SELLER’S SUBCONTRACTORS, SPECIALTY CO SUPPLIERS, ENGINEERS, DESIGNERS AND/ SU ENTITIES (COLLECTIVELY WHETHER O WHERE: (A) THE SERVICES PROVIDED, WO SUPPLIED BY SUCH THIRD-PARTY FO INDIRECTLY, IN WHOLE OR PART, OF T THE ARBITRATION PROCEEDING; (8) INVOLVED IN A COMMON QUE “THIRD-PARTY”) FORMED OR MATERIALS BASIS, DIRECTLY OR MADE THE SUBJECT OF -PARTY IS SUBSTANTIALLY ACT OR LAW; OR (C) THE IRED TO ACCORD THE PARTIES COMPLETE RELIEF IN TH F HOLDER ACKNOWLEDGES AND AGREES THAT IT HAS ADEQU AL CAPACITY TO AVAIL ITSELF OF THE ARBITRATION REM OMDED HEREIN AND THAT PARTICIPATION IN TRIED IN A COURT OF LAW, WHETHER BY MUTUAL DORTIES OR FOR OTHER REASONS, EACH PARTY AGREES TO W. STS. WITH RESPECT TO TRIAL BY JURY. HOLDER ACKNOWLEDGES THATY BY WAIVES VALUABLE LEGAL RIGHTS, INCLUDING THE RIGHT TO TRIAL QURT OF LAW AND THE RIGHT TO TRIAL BY JURY.
6. Attorneys’ Fees. If Seller is a prevailing party in any legal or arbitration proceeding arising out of or relating, directly or indirectly, to the Contract, the sale, conveyance, construction or repair of the home which is the subject of this Contract and/or the Property, Seller shall be entitled to recover from Holder, Holder’s successors, assigns and subrogating parties, all costs of such proceeding, investigative costs, expert fees, reasonable attorneys’ fees and other related costs and expenses. Seller shall be considered a prevailing party in any 9/01/07 Declaration of Restrictive Covenants Page 4 of 7 proceeding in which Seller successfully prosecutes the action or successfully defends against it,
shall be considered a prevailing party in any 9/01/07 Declaration of Restrictive Covenants Page 4 of 7 proceeding in which Seller successfully prosecutes the action or successfully defends against it, as well as in any proceeding subject in whole or in part to the Texas Deceptive Trade Practices-Consumer Protection Act, TEX. Bus. & COMM. CODE ANN. § 17.41, ef seg. ("DTPA") and/or the Texas Residential Construction Liability Act, TEX. PRop. CODE ANN. § 27.001, ef seq.
("RCLA"), where a determination is made: (i) pursuant to DTPA Section 17.5052 that a settlement offer made is the same as, substantially the same as, or more than the damages found by the trier of fact; or (ii) pursuant to RCLA Section 27.004 that the Buyer rejected a reasonable settlement offer or that Seller was not given a reasonable opportunity to repair the defect pursuant to an accepted offer of settlement; or (iii) that the Holder rejected offered work.
ls Miscellaneous.
(a) Invalidity. If any portion of this Declaration is held invalid or inoper: far as is reasonable and possible, the remainder of this Declaration shall pé“dee operative, and effect shall be given to the intent manifested by the inoperative. The failure of either party to enforce against the othgrpg this Declaration shall be deemed not to be a waiver of such pa other party the same or any other term or provision.
inder of page blank. Executions appear on the following page.)
9/01/07 Declaration of Restrictive Covenants Page 5 of 7 IN WITNESS WHEREOF, this Declaration of Restrictive Covenants has been executed to be effective as of the Closing Date stated above.
DECLARANT: MHI Partnership, LTD., a Texas limited partnership, By: |McGuyer Homebuilders, Inc., a Texas corporation, its general partner By: Name: Title: ACCEPTEDMNO AGREED:
Closing Date stated above.
DECLARANT: MHI Partnership, LTD., a Texas limited partnership, By: |McGuyer Homebuilders, Inc., a Texas corporation, its general partner By: Name: Title: ACCEPTEDMNO AGREED: BDYER CL {Ue , A / O RSet E “MELISSA C. SPANGEAR 9/01/07 Declaration of Restrictive Covenants Page 6 of 7 STATE OF TEXAS COUNTY OF Dallas 8888 88 Novemba 26 This instrument was acknowledged before me on 2008 by Ken Grella Closing Agent of McGuyer Homebuilders, Inc., a Texas corporation and general partner of MHI Partnership, Ltd., a Texas limited partnership, on behalf of said entities.
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TARY SONOT PUB JESSICA SANCHEZ My Commission Expires 07/30/2011 FATE OF TEXAS Notary Public, State of Texas Notary Publie, State of Texas Copy STATE OF TEXAS COUNTY OF Tawant 88 This instrument was acknowledged before me o by the above signed "Buyer(s)".
November 2008.
, NOTARY PUB Notary Public, State of Texas STATE OF TEXES My Commission Expires 05/16/2009 AFTER RECORDATION RETURN ORIGINAL TO: Ray Holan McGuyer Homebuilders, Inc.
7676 Woodway, Suite 104 Houston, Texas 77063 Notary Public, State of Texas Declaration of Restrictive Covenants Page 7 of 7 9/01/07