Doc-22564 Midland County Alison Haley County Clerk Document Number.
Recorded A 22564 ERX-RECORDING Midland County Copy On: Recorded At: Number of Pages: August 01, 2017 08:48:46 am 17 Recording Fee: $86.00 Parties: Receipt Number: Processed By: DirectIndirect544147 Vangie Montemayor Midland County Clerk Unofficial Copy AND TEXAS COUNTY CLEA 7017 COUA UNTY Any Sate of Texas rein which restricts the Sale, Rental or use of the described REAL PROPERTY because of color or race is invalid and unenforceable under federal law.
County of Midland I hereby certify that this instrument was FILED on the date and at the time stamped hereon by me and was duly RECORDED in the named RECORDS of Midland County, Texas as stamped hereon.
Auson alley County Clerk Midland County, Texas Midlan Midlan Doc-22664 W After Recording, Return To: RETURN TO: HERITAGE TITLE Ov —hi CONGRESS, SUITE 1500 . aw ’ 4 CGN oo nrcranayga¥ sri COVENANTS THIS D SN, OF RESTRICTIVE COVENANTS (this “Declaration”) is made effective as —day of 2017 (the “Effective Date”), by Pavilion Midland, LLC, a Texas lingg&QNiability company (“Déclarant”) and is as follows: NO XY) RECITALS wr, Declarant is the owner of certain real property located in Midland County, Texas, which property is more particularly described on Exhibit A attached hereto and hereby made a part hereof (the “Property”).
B. By special warranty deed recorded in the Official Records of Midland County, Texas, immediately after this Declaration, Declarant will grant and convey a portion of the Property (the “SH Property”) to SCP Midland 2, LLC, a Delaware limited liability company
of Midland County, Texas, immediately after this Declaration, Declarant will grant and convey a portion of the Property (the “SH Property”) to SCP Midland 2, LLC, a Delaware limited liability company (together with its successors and/or assigns, “SH Property Owner”), which SH Property is more particularly described on Exhibit B attached hereto and hereby made a part hereof. For purposes of this Declaration, the term “Owner” shall hereinafter refer to the record owner, whether one or more persons or entities, of the fee simple title to a lot within the Property, including, without limitation, the SH Property, excluding, however, any person or entity holding such interest merely as security for the performance or satisfaction of any obligation C, Declarant desires to create and carry out a snitoaaN for the development, improvement and sale of the Property, subject to the terms agd RS Tens hereof.
NOW, THEREFORE, it is hereby declare and occupied subject to the following covenants Property and will be binding upon all parti or acquiring any right, title or interest in or to the Property or any part thereof, their [Nefrs, Wiccessors and assigns and will inure to the benefit of each owner thereof, and that act or deed conveying any portion of the Property will conclusively be held to ha ta executed, delivered and accepted subject to the following covenants, conditions ictions.
* HEMP pery will be held, sold, conveyed ons and restrictions that will run with the go RESTRICTIVE COVENANTS . \2" Intentionally omitted Ww 50155874.6 Doc-22664 W 2. [Intentionally omitted] 3 Road Improvements, The first of Declarant or S rty Owner (such party providing such notice hereinafter referred to as the “Road B ge otice the other (such other
oc-22664 W 2. [Intentionally omitted] 3 Road Improvements, The first of Declarant or S rty Owner (such party providing such notice hereinafter referred to as the “Road B ge otice the other (such other party hereinafter referred to as the “Non-Building Party? s Y€sire to build Stonebridge Drive shall be responsible for the design and constructio tidge Drive and related underground water, drainage and sewer utility lines in the loca tonebridge Drive (65’ R.O. W.) as shown on the Plat for PAVILION PARK, SE 0, a subdivision in Midland County, Texas, recorded in Cabinet J, Page 194 of ecords of Midland County, Texas (the “Plat”), together with the installation und storm, drainage and related utility lines, including, rip rap and wing wall, fro eB Property boundary line adjacent to Stonebridge Drive, to connect the SH Prope x water to the Lot 2A Detention Basin as shown on the Plat, all in accordance wit goo (“Road Improvements”): Oc the Road Improvements shall include a sixty-five (65) foot Right of Way an mM (41) foot road (curb to curb) built to City of Midland (“City”) standards for a public in a manner appropriate for dedication to the City.
(b) the Road Improvements shall include (i) underground water, drainage and sewer utility lines to be constructed within or alongside such roadway in compliance with City standards and sufficient to serve the Property, and (ii) the installation of underground storm, drainage and related utility lines, including, rip rap and wing wall, from the SH Property boundary line adjacent to Stonebridge Drive to be constructed within or alongside such roadway in compliance with City standards and sufficient to connect storm water runoff from the SH Property to the Lot 2A Detention Basin as shown on the Plat.
be constructed within or alongside such roadway in compliance with City standards and sufficient to connect storm water runoff from the SH Property to the Lot 2A Detention Basin as shown on the Plat.
(c) Within ninety (90) days following the date Road Builder notices the Non-Building Party of its desire to build Stonebridge Drive, Road Builder shall prepare plans and specifications (the “Preliminary Plans”) for the Road Improvements using Andrew Mellen, P.E., Maverick Engineering (“Maverick”); provided, however, if Maverick is unavailable to prepare the Preliminary Plans, using an engineer licensed in the State of Texas proposed by Road Builder and approved (which approval shall not be unreasonably withheld, condigioned or delayed) by the Non-Building Party. The Non-Building Party’s failure to appr imrove Road Builder’s proposed engineer if Maverick is unavailable within five (5) Ou\ ys of the request for such approval shall be deemed to constitute the Non Bu arty’s approval thereof. The Preliminary Plans shali be made available to the Aw ing Party for its review and approval, which approval shall not be unreasonably wi onditioned, or delayed. The Non-Building Party will have ten (10) business days afte of the Preliminary Plans to review and approve or disapprove same in writing (the “ nse”). If the Non-Building Party has any objections or desire any changes to the P Plans, the Response shall specify all such matters in reasonable detail and ee 6. feasible and reasonable alternatives. Road Builder shall make uch such revisions to the P. Plans as the Non-Building Party or its engineers may reasonably request, provi changes are reasonably acceptable to Road Builder and do not materially ad tsely impact Road Builder’s portion of the Property, if applicable, or the
rty or its engineers may reasonably request, provi changes are reasonably acceptable to Road Builder and do not materially ad tsely impact Road Builder’s portion of the Property, if applicable, or the develo; ereof. If the Non-Building Party fails to respond to the Road Builder with respect iminary Plans within the time period set forth in this Section 3(c), then Road Builder 501558746 go eliver to the Non-Building Party a notice to that effect, which shall include the followings oo Doc-22664 statement in bold print: “Your failure to respond in writing to the Preliminary Plans within five (5) | business days after your receipt of this notice shall constitute your. deemed approval of the Preliminary Plans as last submitted to you.” If the Non-Buildin: fails to respond to this | subsequent notice within five (5) business days after receipt the on-Building Party shall be deemed to have approved the Preliminary Plans. + a “CN | { subsection (c) above, then, at the reques t Road Builder or the Non-Building Party, a principal of each of Road Builder OS on-Building Party shall for a period of ten (10) (d) In the event of a dana SNe to the Preliminary Plans under h business days after receipt of wi est therefor, confer in good faith in an attempt to resolve such dispute. If such princi unable to resolve such dispute within such ten (10) business day period, then, upon ach notice to the other (the “Arbitration Notice”), Road Builder and the ca Tg QA gether shall select a disinterested professional engineer licensed in the State of Tex ve the issue (the “Arbitration Engineer”), The Arbitration Engineer shall
licensed in the State of Tex ve the issue (the “Arbitration Engineer”), The Arbitration Engineer shall aN ection of the Arbitration Engineer within five (5) business days of the delivery of the , ire tion Note, then, no later than ten (10) business days after delivery of the Arbitration Noticeg. QYY ch party shall appoint one engineer meeting the foregoing criteria and the engineers so selected shall together select the Arbitration Engineer (who shall also meet the foregoing criteria). If such persons are unable or unwilling to make such selection within five (5) business days after their appointment, the selection, upon application by either party, shall be made by the County Court for | Midland County, Texas. The Arbitration Engineer shall make his or her decision regarding such l items within five (5) business days after his or her appointment. The decision of the Arbitration | Engineer shall be binding upon the parties. Road Builder and the Non-Building Party shall equally pay the fees of the Arbitration Engineer and each shall pay its own fees for the engineer it appoints (if any) to select the Arbitration Engineer. Upon approval by the Non-Building Party pursuant to subsection (c) above, or the agreement of the principals or the decision of the Arbitration Engineer pursuant to this subsection (d), as applicable, the Preliminary Plans shall become the “Approved Plans.”
(e) Prior to entering into a contract for the construction of the Road Improvements and no later than thirty (30) days following adoption o Approved Plans, Road Builder shall use its commercially reasonable efforts to sg ee (3) contractor bids with respect to the Road Improvements and deliver copies ON.
irty (30) days following adoption o Approved Plans, Road Builder shall use its commercially reasonable efforts to sg ee (3) contractor bids with respect to the Road Improvements and deliver copies ON.
upon receipt thereof, together with Road Builder’s regsqy timate of the Road Improvements ; Costs (the “Estimated Road Improvement Cosa oad Builder’s reasonable estimate of | the Road Maintenance Costs (the “Estim g Maintenance Costs”). Additionally, the Non-Building Party may, without obligatio to obtain bids with respect to the construction of the Road Improvements, in whic: ae on-Building Party will deliver copies of such bids to | the Road Builder for consider, } iccordance with this section. Within five (5) business days -of receipt of the three (0 retinal bids (or, if one or more contractors does not submit a bid | within the 30-day pen orth above, within five (5) business days of the expiration of said | 30-day period), uilder shall select a contractor to construct the Road Improvements on a guaranteed um price basis, which selection, form of guaranteed maximum price contract, ‘ bid \ ‘ Road Improvements Costs and Estimated Road Maintenance Costs shall be subject a -Building Party. If the Non-Building Party does not reasonably approve the contractom\NW § to the Non-Building Party 3 30155874.6 Doc-22664 selected by Road Builder, the bid, the Estimated Road Improvement Costs, the Estimated Road Maintenance Costs and the form of guaranteed maximum price constryction contract, then the parties shall resolve the dispute using the process outlined in coe: above but using an “Arbitration Contractor” in lieu of an Arbitration Engineer. accepted pursuant to the
ryction contract, then the parties shall resolve the dispute using the process outlined in coe: above but using an “Arbitration Contractor” in lieu of an Arbitration Engineer. accepted pursuant to the process set forth in this subsection (e) shall be referred Ni in“as the “Approved Bid.” Road | Builder shall use its commercially reasonable e se the contractor who submits the Approved Bid to name the Non-Building Pargy additional insured on any contractor’s liability insurance policies.
| | (f) “Road I ent Costs” shall mean all hard and soft costs incurred by Road Builder in connecti AN Improvements. Road payment of (1) one such Road I the design, permitting and construction of the Road r and the Non-Building Party shall each be responsible for the | the Road Improvement Costs (Non-Building Party’s one-half share of ent Costs shall hereinafter be referred to as “Non-Building Party’s Road | Improv are’), and (ii) one-half of the cost of maintaining the Road Improvements as set fo QWs (i) below (the “Road Maintenance Costs”) (Non-Building Party’s one-half , \ such Road Maintenance Costs shall hereinafter be referred to as ‘“‘Non-Building Party’ Ww aintenance Share”). Declarant and SH Property Owner acknowledge that certain costs have been incurred prior to the date hereof in connection with the design and/or permitting of the Road Improvements (the “Initial Road Design Costs”). To the extent the Initial Road Design Costs have been approved by Road Builder and the Non-Building Party in accordance with the terms of this Declaration, such Initial Road Design Costs shall be treated as Road Improvement Costs hereunder, Notwithstanding anything to the contrary contained herein, no further costs shall be
the terms of this Declaration, such Initial Road Design Costs shall be treated as Road Improvement Costs hereunder, Notwithstanding anything to the contrary contained herein, no further costs shall be incurred by the parties in connection with the Road Improvements from and after the date hereof except in accordance with the terms of this Declaration.
the necessary governmental permits for the construction of the Road Improvements and acceptance of the Approved Bid (collectively, the “Commencement Conditions”), Road Builder shall commence and thereafter use its commercially reasonable efforts to diligently prosecute to completion construction of the Road Improvements in substantial accordance with the Approved Plans. In all events, Road Builder shall use its commercially ee ofthe to Substantially .
Complete the Road Improvements within nine (9) months after gai of the Commencement Conditions, subject to Force Majeure and/or delays caus e’acts or omissions of the Non-Building Party. “Substantially Complete” megn Qi e at which the City approves the Road Improvements for dedication to the City. “ jeure” means a delay or hindrance in the performance by a party of any act ean erformed by reason of Acts of God, strikes, | lockouts, failure of power, war, riots, ins s, acts of terrorism, the act or failure to act of any | governmental authority, unusuall % rse weather conditions preventing or delaying the performance of work, or aye ason beyond such party’s control. Road Builder shall construct the Road a in a good and workmanlike manner, lien-free (subject to the obligation of the N g Party to timely pay the Road Improvements and Maintenance Reimburseme: substantial accordance with the Approved Plans and all City and other
ike manner, lien-free (subject to the obligation of the N g Party to timely pay the Road Improvements and Maintenance Reimburseme: substantial accordance with the Approved Plans and all City and other legal requirgieM4. In the event of any material defects discovered in the Road Improvements by - eith ilder or the Non-Building Party, the party making the discovery shall promptly aw wi other parties, and Road Builder shall use its commercially reasonable efforts to enforce os | plicable warranties and contract rights given by parties which supplied work, material, an 4 50155874.6 Doc-22664 services in connection with the design and construction of the Road Improvements, and the Non-Building Party shall cooperate in a commercially reasonable manner with Road Builder in such enforcement. Any costs incurred by Road Builder in conn AO any such enforcement shall be deemed to constitute a Road Improvement Cost. If Rea' t fails to diligently pursue enforcement of any such warranties or contract rights argue defect, then Road Builder, upon request by the Non-Building Party, shall the Non-Building Party all rights necessary to pursue a lawsuit or other enforce ceeding against the relevant contractors, vendors, or suppliers with respect to the d sue. In the event of any disagreement between Road Builder and the Non-Buildin bout whether a defect exists, the matter shall be resolved by the Arbitration rag the same procedures as are set forth in subsection (d) above. If field or other conditi ecessitate changes to the work or the Approved Plans that will materially affect the Ni ing Party, such changes shall be reflected in a written change order
ection (d) above. If field or other conditi ecessitate changes to the work or the Approved Plans that will materially affect the Ni ing Party, such changes shall be reflected in a written change order and subject to Iding Party’s review and written approval, which approval shall not be unreasonabl d, conditioned or delayed (each, a “Change Order’), The Non-Building Part aN iew and either approve or object to Change Orders within three (3) business days t of a written request therefor, unless due to exigent circumstances, Road Builder needs al of a particular Change Order sooner than three (3) business days, in which case th on-Building Party shall endeavor to review and either approve or object to such Change Order as quickly as feasible. The Non-Building Party’s failure to approve or disapprove of a Change Order within such three (3) business day period shall be deemed to constitute its approval thereof.
Notwithstanding that the Non-Building Party shall only have approval rights over Change Orders that materially affects the Non-Building Party, Road Builder shall provide the Non-Building Party with copies of all change orders for the Road Improvements (regardless of their effect on the Non-Building Party) promptly after Road Builder executes such Change Order.
(h) Upon Substantial Completion of the Road Improvements in substantial accordance with the Approved Plans, Road Builder shall notify the Non-Building Party thereof in writing (the “Substantial Completion Notice”), and the Non-Building Party and Road Builder shall jointly inspect the Road Improvements and prepare a punchlist of incomplete items. Road Builder shall use its commercially reasonable efforts to cause the completion of all items on the
Builder shall jointly inspect the Road Improvements and prepare a punchlist of incomplete items. Road Builder shall use its commercially reasonable efforts to cause the completion of all items on the punchlist within sixty (60) days after the completion of the punchlist. Road Builder shall also provide the Non-Building Party with (i) one (1) set of marked drawjgg§ showing the “as-built” conditions of the Road Improvements, (ii) executed lien wai uitable bond) from all contractors and suppliers providing labor or materials fo Sw: Improvements and (iii) a written certification from the engineer who desi ates Improvements that the Road Improvements have been completed in en rdance with the Approved Plans and applicable legal requirements. In additj inspection at Substantial Completion, the Non-Building Party shall have the EO ct interim inspections of the Road Improvements at any time upon reasonable adv. to Road Builder; provided, however, such inspections will be conducted in a man x does not interfere with the construction of the Road Improvements. xX 9 Qi the Road Improvements are dedicated to the City, Road Builder shall in the Road Improvements in substantial accordance with the standard of 50555874.6 oe | Doc-22664 (j) Road Builder and the Non-Building Party shall each be responsible for the payment of one-half of all Road Improvement Costs and one-half of all Road Maintenance Costs.
The Non-Building Party’s Road Improvement Share and Non-Buildi y’s Road Maintenance Share (collectively, the “Road Improvements and Mainten! imbursement”) shall be paid, at the election of the Non-Building Party (which e shall be made in writing no later than five (5) business days after Non-Building oe eipt of the information described in
imbursement”) shall be paid, at the election of the Non-Building Party (which e shall be made in writing no later than five (5) business days after Non-Building oe eipt of the information described in clauses (i) and (ii) below) either (A) no later th business days after Non-Building Party’s receipt of the information described in c and (ii) below, or (B) in twenty-four equal monthly installments etek ONS n APT = months after Non-Building Party’s receipt of the information describedgs ant (i) and (ii) below (the “Installment Option”), If Non-Building Party elect; Iment Option, then the Road Improvements and Maintenance Reimbursement — aes at an annual rate equal to 2.5% in excess of the then current prime thal tos orted in the Wall Street Journal or any successor publication, which interest shal in equal monthly installments together with the monthly installments of the oo and Maintenance Reimbursement. Concurrently with or subsequent to the (i) duly executed final, unconditional lien waivers from all contractors and supplier ishing labor, materials and equipment, evidencing full payment of such contractors and suppliers for amounts payable, or in the alternative a customary bond with respect to any disputed payments, and (11) supporting documentation (such as contractor invoices or Road Builder’s proof of payment) reasonably evidencing the costs covered. Any amounts due under this subsection (j) that are not paid within fifteen (15) days after the due date shall bear interest at an annual rate equal to five percent (5%) in excess of the then current prime lending rate as reported in The Wall Street Journal or any successor publication from the date due until the date paid. The Non-Building Party
to five percent (5%) in excess of the then current prime lending rate as reported in The Wall Street Journal or any successor publication from the date due until the date paid. The Non-Building Party shall be entitled to request in writing and within five (5) business days following receipt by Road Builder of such written request, receive copies of or be allowed to inspect and make copies of, all books, accounts, agreements and other information regarding the Road Improvement Costs and Road Maintenance Costs in the possession or under the control of Road Builder. After all installments of the Road Improvements and Maintenance Reimbursement and any applicable interest have been paid, the Road Builder agrees to record a document in the real property records of Midland County, Texas, stating that no Road Improvements oN, is outstanding.
we the Substantial Completion Notice, Road Builder shall deliver to the Non-Building (k) If the Road Builder has abandoned const, cot: e Road Improvements work in accordance with the terms of this Declaration, and j Ss ure is not cured within thirty (30) days after written notice is received by Road By ‘c the Non-Building Party specifying the default, then the Non-Building Party shall * tight, but not the obligation, following written notice to the Road Builder of i its <4 uch right and an additional five (5) day cure period from the Road Builder’s a such subsequent notice, to complete the Road Improvements or take nece we ie pursue specific enforcement of Road Builder’s b obligation to construct the Ro vements. If, however, the default is of such a nature that it is not reasonably oan eing cured within thirty (30) days, Road Builder shall have additional time to ¢ so before the Non-Building Party shall be entitled to exercise its
lt is of such a nature that it is not reasonably oan eing cured within thirty (30) days, Road Builder shall have additional time to ¢ so before the Non-Building Party shall be entitled to exercise its remedies, Roe Road Builder commences its efforts to cure within the initial thirty (30) oy perio ereafter diligently prosecutes those efforts to completion. The Non-Building ann be entitled to exercise their remedies if Road Builder’s delay is caused by Force we or the acts or omissions of the Non-Building Party. Road Builder shall reasonably perate with the Non-Building Party in the exercise of the Non-Building Party’s remedies under 6 50155874.6 Roe oe" Doc-22664 this subsection (k), During the time that the Non-Building Party is exercising any such right, the Non-Building Party and its agents shall have a reasonable right to ent Seer all portions of the | Road Improvements where the applicable work is to be perfo “aon ntering upon the Road Improvements and otherwise in the exercise of their remedies, -Building Party shall use | commercially reasonable efforts to minimize any ue the Road Improvements and any improvements thereon. If the Non-Building Te s its self-help right, the Non-Building Party shall indemnify, defend and hold aN obs from and against any and all damages, claims, losses, liabilities es es, including, without limitation, reasonable attorney’s fees and costs incurred by ilder or the Non-Building Party and arising out of or | claim of lien arising ees work. In the event that the Non-Building Party takes over the Road |
ith the | claim of lien arising ees work. In the event that the Non-Building Party takes over the Road | Improvements a8) n within fifteen (15) days after receipt of sthe Non-Building Party’s | ossession or reasonable control (the “Road Documents”), and (ii) subject to the rights no itle and interest in and to the Road Documents and all permits, approvals and civil engineering and construction contract(s) for the Road Improvements. Road Builder shall reasonably cooperate with the Non-Building Party in completing construction of the Road Improvements, including, without limitation, by signing applications, easements, and other documents. The Non-Building Party’s self-help right under this subsection (k) shall include the right to cause the Road ; Improvements to be designed if the Road Builder has failed to cause such design to be completed. | () If the Non-Building Party performs any of the Road Improvements work | pursuant to subsection (k), Road Builder shall reimburse such Non-Building Party within fifteen (15) days after written demand therefor (each, a “Reimbursement Notice”), for the direct and reasonable out-of-pocket costs incurred by the Non-Building Party to third parties to perform such | Road Improvements work, plus ten percent (10%) for the Non-Building Party’s overhead in undertaking this work (collectively, the “Road Cure Costs”). Notwithstanding the foregoing,
es to perform such | Road Improvements work, plus ten percent (10%) for the Non-Building Party’s overhead in undertaking this work (collectively, the “Road Cure Costs”). Notwithstanding the foregoing, Road Builder shall be entitled to credit against the Road Cure Costs, the applicable Non-Building Party’s share of Road Improvement Costs associated with such Serovements work. The Non-Building Party may submit to Road Builder Reimbursenen a, om time to time, but no more frequently than monthly, Each Reimbursement Nott "ox be accompanied by (a) duly executed lien waivers from all contractors and suppl ing labor, materials and equipment for which payment is sought, evidencing full of such contractors and suppliers for amounts payable through the date of the j y preceding Reimbursement Notice, and (b) supporting documentation (such as Oh invoices or the Non-Building Party’s proof of payment) reasonably evidencin, covered by the Reimbursement Notice. Any amounts due under this subsection (1) ot paid within fifteen (15) days after Road Builder’s receipt of the rece oF erefor shall bear interest at an annual rate equal to five percent (5%) in excess of ent prime lending rate as reported in The Wall Street Journal or any | ( yan ant, as owner of the Property, hereby grants to Road Builder and the Non-Building \" ercising its right to perform the Road Improvements work pursuant to subsection (k), a vo -exclusive temporary easement for the construction and maintenance of the Road z 50155874.6 Doc-22664 Improvements, vehicular and pedestrian access, and for underground utility access to be installed as part of the Road Improvements, under, across and through aye Drive and ten feet on
5874.6 Doc-22664 Improvements, vehicular and pedestrian access, and for underground utility access to be installed as part of the Road Improvements, under, across and through aye Drive and ten feet on either side thereof (so long as within the Property) for the d of construction and maintenance, which easement shall automatically terminate A tion of Stonebridge Drive to the City or, as to Road Builder only, upon Road Buildey ult hereunder, Road Builder, and any party performing construction on the Propet other, shall maintain comprehensive general liability insurance in an amount of not One Million Dollars ($1,000,000), single limit coverage, with contractual liability eYAS ising against liability for property damage, bodily injury, and death relatin: construction, use or maintenance of the Road Improvements, and Umbrell iability Insurance on a follow form basis of at least Three additional insureds th eh Each of Road Builder and the Non-Building Party shall obtain for the insurance c ge suring it, a waiver of any right of subrogation that such insurer may have against the S the other’s insurance carriers. Road Builder and/or the Non-Building Party exercisi tight to perform the Road Improvements work pursuant to subsection (k), as «i , shall indemnify, defend and hold harmless each other from and against any and all .. ire ‘ ges, claims, losses, liabilities and expenses, including, without limitation, reasonabl \ ttorney’s fees and costs incurred by the non-performing party and arising out of or related to any death, bodily injury, or property damage which occurs in connection with the performance of the
abl \ ttorney’s fees and costs incurred by the non-performing party and arising out of or related to any death, bodily injury, or property damage which occurs in connection with the performance of the Road Improvements work by Road Builder and/or the Non-Building Party exercising its right to perform the Road Improvements work pursuant to subsection (k), as applicable.
4, [Intentionally Omitted].
5. [Intentionally Omitted]. | 6. Term. The terms, covenants, conditions and restrictions set out in this Declaration will run with and bind the Property described in this Declaration, and will inure to the benefit of and be enforceable by every owner of land within the Property, including Declarant, and their respective legal representatives, heirs, successors, and assigns, for a term beginning on the date this Declaration is recorded in the Official Records of Midland County, Texas, and continuing for a period of twenty (20) years, after which time this Declaration will be qgomatically extended for successive periods of five (5) years. Notwithstanding any ppev ‘i this Section 6 to the contrary, if any provision of this Declaration would be unla iN of voidable by reason of any Texas law restricting the period of time that covenants,o1 may be enforced, such provision will expire twenty-one (21) years after the death og NA rive of the now living descendants of Elizabeth IT, Queen of England.
qi Miscellaneous. The fer and section headings of this Declaration are for | convenience only and in no w r enlarge the scope or meaning of the language hereof. If any portion of this Declgrago held invalid or inoperative, then so far as is reasonable and | possible the remaind Declaration shall be deemed valid and operative, and effect shall be
guage hereof. If any portion of this Declgrago held invalid or inoperative, then so far as is reasonable and | possible the remaind Declaration shall be deemed valid and operative, and effect shall be given to the in ow ested by the portion held invalid or inoperative. The failure by Declarant : or any Ow RS orce any term or provision of this Declaration shall not be deemed to be a ‘ wai arant’s or such Owner’s right to enforce such term or provision. This Declaration “N gor be governed, construed, applied and enforced in accordance with the laws of J+ re WW 50155874,6 Doc-22664 w the State of Texas. This Declaration shall be recorded in the Official Records of Midland County, Texas, and shall run with the Property.
violation thereof shall operate to defeat or render invali aN" le or in part, the rights of the beneficiary, insurer, guarantor, or holder of any m eed of trust encumbering all or any portion of the Property; provided that, after fore any such mortgage or deed of trust, the property foreclosed shall remain subject t laration. Declarant shall obtain duly executed and acknowledged subordinations fro ae its secured lenders in the form attached hereto as Exhibit C.
9. ae Qe any legal proceeding is instituted by any person to enforce or rovis interpret the p i§ Declaration, the prevailing Owner in such action or proceeding shall be entitled t Gee rom the other Owner or other Owners, all costs and expenses incurred in Ne ae" ith, including, without limitation, reasonable attorneys’ fees and costs. s | 8. Mortgagee Protection. No portion of this .D os or any amendment or | | \ No Public Dedication, The easements established in this Declaration are not oe" nded to create, nor do they create, any rights in the general public and the rights granted herein
ny amendment or | | \ No Public Dedication, The easements established in this Declaration are not oe" nded to create, nor do they create, any rights in the general public and the rights granted herein are private and for the benefit of the parties hereto, their successors and assigns and the other permitted parties expressly referred to in this Declaration.
11. Relinquished Property. Upon the conveyance by any Owner of fee simple title to all or any portion of the Property (the “Relinquished Property”), such Owner shall have no further obligations or liabilities under this Declaration with respect to the Relinquished Property it being acknowledged that the obligations and liabilities run with the land and to subsequent owners !
of fee title, except with respect to any breach of this Declaration by such Owner during its period of ownership of the Relinquished Property for which such Owner shall remain liable following any transfer of the Relinquished Property. Notwithstanding the foregoing, the Declarant shall at all times remain responsible for all of its obligations under the terms of this Declaration, even after it no longer owns fee simple title to any portion of the Property. Declarant may not transfer or assign its rights and/or obligations under this Declaration without the prior written consent of SH Property Owner.
12, No Warranty. UPON SUBSTANTIAL coal OF THE ROAD | IMPROVEMENTS, ROAD BUILDER MAKES NO Y WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE CONDITI ITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF T AD IMPROVEMENTS. WITHOUT LIMITATION OF EACH OWNER’S RI URSUE WARRANTIES AND CONTRACT RIGHTS AGAINST PARTIES xe AN ROAD BUILDER WHO SUPPLIED WORK, MATERIAL, AND SERV, CONNECTION WITH THE DESIGN AND !
T AD IMPROVEMENTS. WITHOUT LIMITATION OF EACH OWNER’S RI URSUE WARRANTIES AND CONTRACT RIGHTS AGAINST PARTIES xe AN ROAD BUILDER WHO SUPPLIED WORK, MATERIAL, AND SERV, CONNECTION WITH THE DESIGN AND !
CONSTRUCTION OF $F IMPROVEMENTS PURSUANT TO SECTION 3(G) | ABOVE, UPON SUB TAL COMPLETION OF THE ROAD IMPROVEMENTS, EACH | OWNER ACC ROAD IMPROVEMENTS ON AN “AS-IS, WHERE-IS” BASIS WITH AL S, AND AGREES TO RELEASE AND DISCHARGE THE ROAD DAA OM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, Ql ‘\ COSTS, AND EXPENSES OF WHATEVER NATURE OR KIND, INCLUDING wr 50155874,.6 Doc-22664 REASONABLE ATTORNEY’S FEES AND COSTS, RELATED TO OR ARISING OUT OF ANY CLAIM, DAMAGE OR INJURY RELATING TO THE ROAD IMPROVEMENTS.
13. Estoppel. At the request of an Owner, Dela SOW other Owners shall, from time to time, no later than ten (10) days after written re efefor, execute and deliver to the requesting party, an estoppel certificate in forgigs ntent reasonably requested by the requesting party and/or its lenders. Qo [remainde Ww intentionally left bank] chert page next page] ws gor NO we 50155874.6 EXECUTED to be effective on the date this instrument is recorded in the Official Public Records of Midland County, Texas.
DECLARANT: oot!
PAVILION ees. LLC ge Name: Christopher Kawaja Its: Manager ws 50156000.5 Doc-22664 THE STATE OF NEN Yoge § § COUNTY OF SVPE&xK Christopher Kawaja, Manager of Pavilio company, ge Ang Mer IPA KNAP State of New York . O1KN6281650 iq fatified in Suffolk County.
Y My Commission Explres May 13, 2021 wer" SEAL 50156000.5 cot) d, LLC, on behalf of said limited liability , xe This instrument was acknowledged ugh on the 27t May of Jul 2017, by . fi 6 Notary Public in and for z State of MEA) Yow EINGA ENACT Printed or Typed Name of Notary My Commission Expires: pslig[zeo24
e This instrument was acknowledged ugh on the 27t May of Jul 2017, by . fi 6 Notary Public in and for z State of MEA) Yow EINGA ENACT Printed or Typed Name of Notary My Commission Expires: pslig[zeo24 RS Doc-22664 The Property consists of the following: « 1.
oo” 5015$874.6 EXHIBIT A PROPERTY Y gos cn?
Stonebridge Drive (65° R.O.W. Wy on the Plat of PAVILION PARK, SECTION 10, a subdivision in Midlan » Texas, recorded in Cabinet J, Page 194 of the Plat Records of Midland C: exas.
Lot 1A, Blo ’ ILION PARK, SECTION 10, a subdivision in Midland County, Texas, con to the map or plat thereof, recorded in Cabinet J, Page 194 of the Plat Res idland County, Texas.
Lot 1A, Block 6, PAVILION PARK; Texas, according to the map or Records of Midland se goo" wo" N 10, a subdivision in Midland County, 50155874.6 of, recorded in Cabinet J, Page 194 of the Plat.
Doc-22664 or” EXHIBIT C SUBORDINATION cows oxo interest in and under (i) that recorded in the Official Records of Midland County, Texas, as Instrumen ,» which Deed of Trust is between 5 asdf’ ; ; as Trustee, as Beneficiary, and (ii) that certain Vendor’s Lien The undersigned, as Beneficiary of certain Deed of Trust dated retained in Deed date , and recorded under County Clerk’s File Number of the Official Records of Midland County, Texas, executed by to , securing the payment of one of even date in the principal amount of $ , payable to promis , additionally secured by Deed of Trust, of even date, to ao , Trustee, recorded under County Clerk’s File Number AST the Official Records of Midland County, Texas, hereby expressly subordinates such Deed of Trust and Vendors Lien and Deed of Trust and its beneficial interests thereunder to that certain Declaration of Restrictive Covenants (the “Declaration”) dated
reby expressly subordinates such Deed of Trust and Vendors Lien and Deed of Trust and its beneficial interests thereunder to that certain Declaration of Restrictive Covenants (the “Declaration”) dated Records of Midland County, Texas, as Instrument No. , and to all easements to be conveyed in accordance with the Declaration. By executing this Subordination, the undersigned agrees that should the undersigned acquire title to all or any portion of the property encumbered by the above described Deed of Trust or Vendors Lien and Deed of Trust by foreclosure (whether judicial or non-judicial), deed in lieu of foreclosure or any other remedy in or relating to the Deed of Trust or Vendors Lien and Deed of Trust, the undersigned will acquire title subject to the provisions of the Declaration, which shall remain in full force.
" Gor By: eo “ e!
Title: Dated: gem 50155874.6 THE STATE OF § COUNTY OF 4 gos This instrument was acknowledged before mn day of. ; 20_, by , on behalf of said wy” wb AN Ge Notary Public in and for the State of Texas yy Co wor Printed or Typed Name of Notary My Commission Expires: SEAL 50155874.6