oP 2Z0¢--6070 Electronically Recorded = ‘2!rant County Texas Official Public Records 2009 Apr 29 03:51 PM Fee: $ 40.00 D2091 14077 Ffigenma/ Minhoze,) Submitter: LANDATA 7 Pages SINT Waco S224 Oe DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (hereinafter “Declar is made by MHI PARTNERSHIP, LTD. (hercinafter “Declarant”), a Texas limited p as follows: RECITALS A. Property Address: 10109 Fox Hill Drive Fort Worth, TX 76131 (hereinafter “Property,” consisti improvements thereon).
B. Seller: MHI Partnership, LT (hercinafter “Seller’).
Cc. Buyers(s): Joyce B. Guillory (hereinafter c ti > whether onc or more).
D. Legal Description: E. Closing Date: F. On the Closing ey lleYsold and conveyed the Property to Buyer.
F. The cogtrg bough’ which Buyer purchased the Property from Seller (“Contract”) i Main\arbitration, jury waiver and attorney’s fee provisions which shall run ostrictive covenants as more particularly described below. Buyer joins herein to 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 | 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 obliggti of this Declaration shall be binding upon the parties and their respective successors and as¢
cessors and assigns (including any future owner or occupier of the Property), and the burdens and obliggti of this Declaration shall be binding upon the parties and their respective successors and as¢ 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 Propery 3. Term. Except as provided below, this Declara lave a term of fifteen (15) years (the “Covenant Period”) commencing on t 4 the conclusion of the Covenant Period, this Declaration shall automatically except as to arbitration and/or legal proceedings yhi e in progress at the time of its expiration. In those instances, this Declaration sh o the proceedings in progress at the expiration of the Covenant Period unt( Ahe ded by the entry of a final, nonappealable arbitration award or judgment. N s the foregoing, if Declarant, Seller or an affiliate of them becomes the holde to the Property, this Declaration shall automatically terminate and be of ng furthér To effect as to Declarant, Seller, such affiliate, or the Property.
4. ARBITRATIOR A. RUMMOKREEMENT TO ARBITRATE. ANY CLAIM OR CONTROVERSY ARISING ORT OF OR RELATING TO THE CONTRACT, THE BREACH THERE RELATING DIRECTLY OR INDIRECTLY TO THE CONTRACT, ? ASE, CONSTRUCTION OR REPAIR OF THE HOME AND IMPROXEME TICH ARE THE SUBJECT OF THE CONTRACT, AND/OR THE PROP LOUDING ANY AND ALL CLAIMS AGAINST SELLER AND/OR s TS, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, MA RERS OR OTHER THIRD PARTIES JOINED IN ACCORDANCE WITH PH 25.E OF THE CONTRACT OR PARAGRAPH 4.E HEREOF, SHALL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, 9 US.C., § 1, ET SEQ. HOLDER IRREVOCABLY ACKNOWLEDGES AND AGREES THAT THE TRANSACTION MADE THE BASIS OF THE CONTRACT
HEREOF, SHALL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, 9 US.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), (11) THE CLAIMANT(S) SEEKS ONLY THOSE REMEDIES APPLICABLE TO CONSTRUCTION DEFECTS AVAILABLE UNDER THE ACT, AND (III) THE CLAIMANT(S) ASSERTS NO OTHER CLAIMS AND SEEKS NO OTHER REMEDIES APART FROM (D AND (ID, N THE ARBITRATION SHALL BE CONDUCTED AND ADMINISTERED, N ACCORDANCE WITH THE BUILDER LIMITED WARRANTY (AS DEFINE CONTRACT).
c. ARBITRATION OF ALL OTHER DISPUTES. IN ALL JOINED WITH OTHER CLAIMS), THE ARBITRATIO BY THE AMERICAN ARBITRATION ASSOCIATIO WITH ITS CONSTRUCTION INDUSTRY A SUPPLEMENTED BY AAA SUPPLEMENTAR RELATED DISPUTES, WHERE APPLICABL DEMAND FOR ARBITRATION IS FILED. WA¢ SHALL APPLY ONLY UPON THE serps D J PARTIES TO THE ARBITRATION PRQGEE RARTY REQUESTING RELIEF SHALL TION AND PAY APPLICABLE FILING NG SHALL BE CONDUCTED IN THE RE THE PROPERTY IS LOCATED, UNLESS RTIES. IN ALL INSTANCES, THE PARTIES D. GENERAL PROVISIO THE CONTROVERSY HAS IS FILE A WRITTEN DEMANP FEES. THE ARBITRAJTEOS ALL BE THREE (3) NEUTRAL ARBITRATORS ANCE WITH THE APPLICABLE ARBITRATION RULES.
PLICABLE ARBITRATION RULES MANDATE THAT THE ARBITRATORS SHALL BE ATTORNEYS AT LAW, LICENSED TO PRACTICE IN THE STATE OF TEXAS, WITH SUBSTANTIAL EXPERIENCE IN THE SINGLE
E APPLICABLE ARBITRATION RULES.
PLICABLE ARBITRATION RULES MANDATE THAT THE 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 DISMISSAIMOF SUCH LITIGATION; OR (B) INCURRED IN JUDICIALLY COMPELKING ARBITRATION. THE FOREGOING DOES NOT PRECLUDE A PART SEEKING EMERGENCY RELIEF FROM A COURT OF JURISDICTION AND THE PROSECUTION OF A REQUEST FOR RELIEF WILL NOT BE DEEMED A WAIVER OF THE ARBITRATI CONTAINED HEREIN.
E. JOINDER: THE PARTIES AGREE THAT R IN IN ANY ARBITRATION PROCEEDING CONDUCTED HERE ER, R MORE OF SELLER’S SUBCONTRACTORS, SPECIALTY C RA RS, MATERIAL SUPPLIERS, ENGINEERS, DESIGNERS AND/QR SU ER PERSONS OR ENTITIES (COLLECTIVELY WHETHER O WHERE: (A) THE SERVICES PROVIDED, WOR SUPPLIED BY SUCH THIRD-PARTY Pays OR “THIRD-PARTY”) PERFORMED OR MATERIALS INDIRECTLY, IN WHOLE OR PARTSOF THE SYA THE ARBITRATION PROCEEDING; (B ( THIRD-PARTY IS SUBSTANTIALLY INVOLVED IN A COMMON mat BSTION SOF
SUCH THIRD-PARTY Pays OR “THIRD-PARTY”) PERFORMED OR MATERIALS INDIRECTLY, IN WHOLE OR PARTSOF THE SYA THE ARBITRATION PROCEEDING; (B ( THIRD-PARTY IS SUBSTANTIALLY INVOLVED IN A COMMON mat BSTION SOF , S TRIED IN A “COURT OF LAW, WHETHER BY MUTUAL PARTIES OR FOR OTHER REASONS, EACH PARTY AGREES TO 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 2 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, et 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 d@fect
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 d@fect pursuant to an accepted offer of settlement; or (iii) that the Holder rejected offered work, 7. Miscellaneous.
(a) Invalidity. If any portion of this Declaration is held invalid or far as is reasonable and possible, the remainder of this Declaration sha operative, and effect shall be given to the intent manifested }; other party the same or any other term or provision.
(b) Governing Law. This Declaration accordance with the laws of the State of Texas (excepta foregoing arbitration provisions, which shall be goyé (c) Counterparts. This Declaratio which shall constitute an original and instrument.
gcuted in multiple counterparts, each of en taken together shall constitute one skail be entitled to recover from Holder, Holder’s Declarant’s reasonable and necessary attorney’s fees (e) Recorder his Wéclaration shall be recorded in the Real Property Records of each county in which GPN pgrty is located.
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: 9/01/07 Declaration of Restrictive Covenants Page 6 of 7 by STATE OF TEXAS Tawant COUNTY OF Dallas § cos cos § This instrument was acknowledged before me on Ken Gezelle Apur 24, 2009, , Closing Agent of McGuyer Homebuilders, Inc.,
tive Covenants Page 6 of 7 by STATE OF TEXAS Tawant COUNTY OF Dallas § cos cos § This instrument was acknowledged before me on Ken Gezelle Apur 24, 2009, , 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.
NOTARY S NICOLE TIMM PUBLIE Notary Public, State of Texas CATE OF TEX My Commission Expires 01/09/2010 Notary Public, State of Texas Copy STATE OF TEXAS COUNTY OF Tavant § This instrument was acknowledged before me on by the above signed "Buyer(s)".
NICOLE TIMM TARY PUB Notary Public, State of Texas One ATE OF My Commission Expires AFTER RECORDATION RETURN ORIGINAL TO: Ray Holan McGuyer Homebuilders, Inc.
7676 Woodway, Suite 104 Houston, Texas 77063 27,2009 Notary Publie, State of Texas Declaration of Restrictive Covenants Page 7 of 7 9/01/07