286206070 Electronically Recorded = ‘2!ant County Texas Official Public Records 2009 Jan 30 03:08 PM Fee: $ 40.00 D209024987 Ffigenma/ Minhoze,) Submitter: LANDATA 7 Pages Suzanne Henderson DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (hercinafit is made by MHI PARTNERSHIP, LTD. (hereinafter ““Declarant”), a Tex: as follows: RECITALS A. Property Address: 628 TRADEWIND DRIVE FORT WORTH, TX. 7, (hereinafter “Property,” & improvements thereon).
ting of the real property and all B. Seller: MAHI Partner.
(hereinafter “ Cs Buyers(s): JAMES W, “on e ‘ “Buyer” whether one or more).
of D. Legal Description: i; an addition ORT WORTH, TARRANT County, Texas.
E. Closing Date: estrictive covenants as more particularly described below. Buyer joins herein solely to evidence Buyer’s acceptance of the Property subject to this Declaration and Buyer’s agreement to the terms and condilions 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 | of 7 DECLARATION i. Recitals. The Recitals set forth above are incorporated herein as a substantive part of this Declaration.
Ds 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 obligasions (including any future owner or occupier of the Property), and shall be deemed to be that run with the Property. For purposes of this Declaration, the term “Holder” shgH-t right of occupancy. BY ACCEPTANCE OF A DEED TO THE PROPER
or occupier of the Property), and shall be deemed to be that run with the Property. For purposes of this Declaration, the term “Holder” shgH-t right of occupancy. BY ACCEPTANCE OF A DEED TO THE PROPER PORTION THEREOF, OR BY OCCUPANCY OF THE PROPERTY ss the expiration of the Covenant Period untj appealable arbitration award or judgment.
an affiliate of them becomes the holder 9 automatically terminate and be of no ¢ or the Property. & ed by the entry of a final, none foregoing, if Declarant, Seller or le-fo the Property, this Declaration shall er 2ffect as to Declarant, Seller, such affiliate, e 4.
A EMENT TO ARBITRATE. ANY CLAIM OR CONTROVERSY ARISINC I OF OR RELATING TO THE CONTRACT, THE BREACH THERES @ LATING DIRECTLY OR INDIRECTLY TO THE R ASE, CONSTRUCTION OR REPAIR OF THE HOME AND ARE THE SUBJECT OF THE CONTRACT, AND/OR THE NDING ANY AND ALL CLAIMS AGAINST SELLER AND/OR A S, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, DEVELOPERS, SUBCONTRACTORS, MATERIALMEN, SUPPLIERS, RS OR OTHER THIRD PARTIES JOINED IN ACCORDANCE WITH 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
GED “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 (ID, THEN THE ARBITRATION SHALL BE CONDUCTED AND ADMINISTERE N ACCORDANCE WITH THE BUILDER LIMITED WARRANTY (AS DEFINE CONTRACT).
Cc. ARBITRATION OF ALL OTHER DISPUTES. IN ALL BY THE AMERICAN ARBITRATION ASSOCIATION WITH ITS CONSTRUCTION INDUSTRY A SUPPLEMENTED BY AAA SUPPLEMENTARY,PROCKE RELATED DISPUTES, WHERE APPLICABL EFFECfF“AT THE TIME THE DEMAND FOR ARBITRATION IS FILED. AST TRACK PROCEDURES SHALL APPLY ONLY UPON THE FUR TEN CONSENT OF ALL PARTIES TO THE ARBITRATION PRQOQEE D. GENERAL PROVISION THE CONTROVERSY HAS FILE A WRITTEN DEMAND FEES. THE ARBITRATIQO} FEDERAL JUDICIAL DISH A REASONABLE TIME AFTER TY REQUESTING RELIEF SHALL TION AND PAY APPLICABLE FILING G SHALL BE CONDUCTED IN THE RE THE PROPERTY IS LOCATED, UNLESS BPAXRTIES. IN ALL INSTANCES, THE PARTIES RBITRATOR, BUT IN THE EVENT THE PARTIES ALL BE THREE (3) NEUTRAL ARBITRATORS ANCE WITH THE APPLICABLE ARBITRATION RULES.
ICABLE ARBITRATION RULES MANDATE THAT THE SBMITTED TO A SINGLE ARBITRATOR AND THE PARTIES ASAO THE SELECTION OF SUCH ARBITRATOR, THEN THERE (3) NEUTRAL ARBITRATORS APPOINTED IN ACCORDANCE CABLE ARBITRATION RULES, WITH THE COST OF THE TWO ‘AL ARBITRATIORS BEING ADVANCED BY THE SELLER. UNLESS 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
CTICE 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 VJ MAY AGREE UPON O 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 DISMISSA SUCH LITIGATION; OR (B) INCURRED IN JUDICIALLY COMPEL ARBITRATION. THE FOREGOING DOES NOT PRECLUDE A PART SEEKING EMERGENCY RELIEF FROM A COURT OF C JURISDICTION AND THE PROSECUTION OF A REQUEST FOR RELIEF WILL NOT BE DEEMED A WAIVER OF THE ARBITRATIO CONTAINED HEREIN.
E. JOINDER: THE PARTIES AGREE THAT ARBITRATION PROCEEDING CONDUCTED HERE R MORE OF SELLER’S SUBCONTRACTORS, SPECIALTY C SUPPLIERS, ENGINEERS, DESIGNERS AND/QR S ENTITIES (COLLECTIVELY WHETHER Of “THIRD-PARTY”) WHERE: (A) THE SERVICES PROVIDED, WORK KERFORMED OR MATERIALS SUPPLIED BY SUCH THIRD-PARTY FORM S BASIS, DIRECTLY OR INDIRECTLY, IN WHOLE OR PART, MIMS MADE THE SUBJECT OF THE ARBITRATION PROCEEDING; We i top INVOLVED IN A COMMON QUE PRESENCE OF SUCH THIRD; QUIRED TO ACCORD THE PARTIES COMPLETE RELIEF IN TH F. LEAS HOLDER ACKNOWLEDGES AND AGREES THAT IT HAS ADEQUS TER MNY AL CAPACITY TO AVAIL ITSELF OF THE
INVOLVED IN A COMMON QUE PRESENCE OF SUCH THIRD; QUIRED TO ACCORD THE PARTIES COMPLETE RELIEF IN TH F. LEAS HOLDER ACKNOWLEDGES AND AGREES THAT IT HAS ADEQUS TER MNY AL CAPACITY TO AVAIL ITSELF OF THE ARBITRATION WI co ONSTITUTE A FINANCIAL HARDSHIP.
. ATVB WRY TRIAL: THE PARTIES AGREE THAT IF ANY CLAIM BY WAIVES VALUABLE LEGAL RIGHTS, INCLUDING THE RIGHT TO URT 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, 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 seg.
("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
ges 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.
7. Miscellaneous.
far as is reasonable and possible, the remainder of this Declaration shallAe_des conte indalid or ahy terefi dr provision of inoperative. The failure of either party to enforce against the ot this Declaration shall be deemed not to be a waiver of such other party the same or any other term or provision.
foregoing arbitration provisions, which shall be eo edNy (c) Counterparts. This mage gtfted in multiple counterparts, each of which shall constitute an original and al instrument.
(d) successors, assigns and subp6 2a sie3\ Declarant’s reasonable and necessary attorney’s fees and litigation expenses incusreddn enforcing this Declaration.
(e) 9/01/07 Declaration of Restrictive Covenants Page 5 of 7 IN WITNESS WHEREOEF, 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 ACCEPT D AGREED: ES W. BALLINGER’ 9/01/07 Declaration of Restrictive Covenants Page 6 of 7 by STATE OF TEXAS COUNTY OF Dallas 88 8 This instrument was acknowledged before me on 2009 Jan. 28th Hem Cat Jodi Sterd 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.
2009 Notary Public, State of Texas OTAR PUBLIC STATE OF JESSICA SANCHEZ Notary Public, State of Texas My Commission Expires
Partnership, Ltd., a Texas limited partnership, on behalf of said entities.
2009 Notary Public, State of Texas OTAR PUBLIC STATE OF JESSICA SANCHEZ Notary Public, State of Texas My Commission Expires 07/30/2011 STATE OF TEXAS COUNTY OF Tarrant $$$ This instrument was acknowledged before me on by the above signed "Buyer(s)".
28 , Notary Public, State of Texas nonicial MARY PUB ONG TE OF TEX!
JESSICA Notary Public, My AFTER RECORDATION RETURN ORIGINAL TO: Ray Holan McGuyer Homebuilders, Inc.
7676 Woodway, Suite 104 Houston, Texas 77063 Declaration of Restrictive Covenants Page 7 of 7 9/01/07