€26281-2070 Electronically Recorded —Taant County Texas Official Public Records 2007 May 31 02:33 PM Fee: $ 36.00 D207187973 Figurine Mimhese) Submitter: ACS INC 6 Pages Suzanne Henderson Tarrant County Suzanne Henderson County Clerk t And Agreement Recorded As: Restrictive Co Number of Pages: HFTC GF#: Received from HextexFaift Ti ompany G & eh, RESTRICTIVE COVENANT AND AGREEMENT (New Residence Construction Contract — Contract of Sale) S(D730162%6 HATL Ad This Restrictive Covenant and Agreement (this “Agreement”) is made this 11th day of MAY, 2007, by and between TROY MONTGOMERY AND MINDY HUBIK, of 8236 Courtney Way, Watauga, Texas 76148, hereinafter referred to as “Owner”, whether one or more) and BLOOMFIELD HOMES, L.P. of 807 Potomac Place, Southlake, Texas 76092 (hereinafter referred to as “Builder’) RECITALS WHEREAS, Owner is the current owner of the following described 8236 Courtney Way, Wata Ss 76148 and more particularly described as follows: Legal Description Lot 8, Block B, DURHAM FARMS, an Addition to the City of Watauga, Tarrant County, Texger< WHEREAS, the undersigned acknowledge that it is the policy d peaceable resolution of disputes through alternative dispute resolution proc the construction of all improvements on the Property (ihe warranty of good and workmanlike construction to t Agreement SHALL RUN WITH THE LAND.
1. The parties specifically, and Builder; (b) any controversy, warranties alleged to have bee mediation and, if not settlep d édiation, shall thereafter be submitted to binding arbitration as provided by the Federal Arbitration Agt-(€ t seq.) or, if applicable, by similar state statute, and not by or in a court of law.
lep d édiation, shall thereafter be submitted to binding arbitration as provided by the Federal Arbitration Agt-(€ t seq.) or, if applicable, by similar state statute, and not by or in a court of law.
All decisions respeg bitzability of any Dispute shall be decided by the arbitrator. In no event shall Owner be initially requi : tion costs and fees in excess of those that would have been incurred in filing suit in a court of | ing séovce of process. The arbitrator may award to the prevailing party, if any, as determined y portion of its costs and fees. “Costs and fees” may include reasonable expenses of ation, including arbitrator's fees, administrative fees, travel expenses and out-of-pocket expéqse&such a copying and telephone, court costs, witness fees and reasonable attorney's fees. The mediation and, iNecéssay, the arbitration shall be conducted pursuant to any procedures set forth in the applicable warranty docume fe is any conflict between this Agreement and such procedures, the provisions of this Agreement shall control. “Furthermore, if the mediator and/or arbitrator designated in any applicable warranty documents cannot conduct the mediation or arbitration for any reason, or if no mediator and/or arbitrator is designated, then the parties agree to work together in good faith to select a mediator and, if all Disputes are not resolved by mediation, an arbitrator in the county where the subject property is located. If the parties are unable to agree on the appointment of a mediator and/or arbitrator, either party may petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator. It is stipulated and agreed that the filing of a petition requesting appointment of a mediator
y petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator. It is stipulated and agreed that the filing of a petition requesting appointment of a mediator and/or arbitrator shall not constitute a waiver of the right to enforce binding arbitration.
In any arbitration proceeding between the parties: RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 1 of 1 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 a. All applicable Federal and State law (including Chapter 27 of the Texas Property Code) shall apply; b. All applicable claims, causes of action, remedies and defenses that would be available in court shall apply; Cc: The proceeding shall be conducted by a single arbitrator selected by a process designed to ensure the neutrality of the arbitrator; d. The parties shall be entitled to conduct reasonable and necessary discovery; e. The arbitrator shall render a written award and, if requested by any party, a reasoned award; f. The Owner shall not be required to pay any unreasonable costs or fees and the arbitrator shall have the right to apportion costs and fees in an equitable manner in the arbitration award; and g. Any award rendered in the proceeding shall be final and binding and judgment upop such award may be entered in any court having jurisdiction.
rey portions of this Agreement. Owner and Builder further agree (1) that any Dispute involving hers E officers, employees and agents shall be resolved as set forth herein and not in a court of laws, Ae of that or any other claim, dispute or controversy, and the court shall, upo % parly to the proceeding, direct that such controversy, dispute or claim be arbitrated in accordance uch as this Agreement
of that or any other claim, dispute or controversy, and the court shall, upo % parly to the proceeding, direct that such controversy, dispute or claim be arbitrated in accordance uch as this Agreement provides for mandatory arbitration of Disputes, if any party commences litigation IRvigla of this Agreement, such in seeking abatement of such litigation and enforcement of arbitrat 2. OWNER AND BUILDER ACKNOWLEDGE THA CONSTRUCTION DEFECTS IN CONNECTION A \pi ; OWNER AND BUILDER ALSO ACKNOWLEDGE A ¥ THAT A REQUEST FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUEDAAS $ OF CONSTRUCTION DEFECT UNDER THE R AARLYBE SEPARATELY SENT TO BUILDER IN THE DER ACKNOWLEDGE THAT THE RCLA CONTROLS EF RCLA AND ANY OTHER LAW, INCLUDING THE CTION ACT, SUBCHAPTER E, CHAPTER 17, TEXAS MANNER REQUIRED BY THE RCLA.
TO THE EXTENT OF ANY CONF DECEPTIVE TRADE PRACTICES, knowledges and stipulates that THE ONLY EXPRESS WARRANTY GIVEN TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXPRESS 5 Y TY PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES AND UNDE IO2 Ts IGNING THIS AGREEMENT THEY ARE WAIVING ANY CLAIM OR CAUSE OF AND THA PLIED WARRANTY, TO THE EXTENT IT EXISTS IN TEXAS, IS EXPRESSLY , E RMS OF THE LIMITED WARRANTY INCORPORATED BY REFERENCE INTO THIS ACKNOWLEDGES THAT THE TERMS OF SUCH LIMITED WARRANTY ARE CLEAR, FFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION REVIEWED > WARRANTY, AND OWNER AGREES TO DELIVER A COPY OF THE LIMITED WARRANTY TO ANY SUBSEQUENT PURCHASER OF THE PROPERTY 5. In the event that the reasonable cost of repair necessary to repair a construction defect or defects in or
REES TO DELIVER A COPY OF THE LIMITED WARRANTY TO ANY SUBSEQUENT PURCHASER OF THE PROPERTY 5. In the event that the reasonable cost of repair necessary to repair a construction defect or defects in or related to the Improvements that are the responsibility of Builder exceeds 20% of the then current fair market value of the Improvements, as determined without reference to the construction defect(s), Builder may elect to repurchase the Property in accordance with Section 27.004 the Texas Property Code. This right of election shall survive the completion of the Contract between Owner and Builder and the delivery of the deed to the Property from Builder to Owner, and shall be binding on Owner's successors and assigns.
RESTRICTIVE COVENANT AND AGREEMENT - PAGE 2 of 2 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 6. Owner and Builder hereby agree, acknowledge and stipulate that all manufacturer warranties on equipment and consumer products incorporated into the Improvements such as air conditioners, heating units, water heaters, refrigerators, ranges, dishwashers and other appliances or equipment shall be assigned to Owner. Owner hereby agrees, acknowledges and stipulates that Builder makes NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES TO THE FULLEST EXTENT PERMITTED BY STATE OR FEDERAL LAW.
7. Builder has exercised reasonable care in assuring that the Property and Improvements are free of harmful molds and other undesirable organisms; however, even utilizing modern materials, techniques and designs,
as exercised reasonable care in assuring that the Property and Improvements are free of harmful molds and other undesirable organisms; however, even utilizing modern materials, techniques and designs, any construction project can experience a problem with molds and other biological impurities if proper maintewance procedures are not implemented. Such maintenance is a responsibility of Owner. The Owner can take positive\ste to reduce or eliminate the occurrence of moid growth in the home, and thereby minimize any possible adve that may be caused by mold. These steps include the following: a. Before bringing items into the home, check for signs of mold. Potted pla furnishings, or stored clothing and bedding material, as well as many othe could already contain mold growth. Once mold is brought into the ho to other areas of the home.
windows, using exhaust fans, or running the air conditigning “move excess moisture in the air. Promptly clean up and dry spills, conde tion ana’s afces of moisture. Promptly d. Scations or wet spots. Repair any leaks ahd air conditioners) for mold growth.
old.
e ed area with a mild solution of bleach. First ace is color safe. Porous materials, such as fabric Should the mold growth be severe, call on the f. Electronic ai S : St in effective air filtration and dehumidifiers to maintain humidity leyels E additional cost from numerous vendors.
Whether or not a home experience depends largely on how itis maintained. The Builder has not made, created or invited (nor does it jnte from the négligefice of a Releasee or otherwise) that arises out of or in any way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extent allowed by law, Owner hereby waives (and
easee or otherwise) that arises out of or in any way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extent allowed by law, Owner hereby waives (and is estopped to assert) all claims to the contrary.
Owner hereby further releases, on behalf of themselves and on behalf of any insurance carrier or third-party with which Owner deals, Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or third-party for damages related to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damages from Builder. Owner agrees to not assign any of RESTRICTIVE COVENANT AND AGREEMENT - PAGE 3 of 3 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 their rights to any insurer or third party. Owner agrees to obtain from any and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real property records of the County in which the Property is located.
9. Owner and Builder further stipulate that this Agreement SHALL RUN WITH THE LAND.
10. By execution of this Agreement, (i) Owner acknowledges that the Improvements have been completed in accordance with the contract between Owner and Builder or that any discrepancies or differences have been approved and accepted by Owner and (ii) Owner has accepted the Property and Improvements and hereby releases Builder from all claims and liabilities relating to the Property or Improvements except for Builder’s obligations ariging under the express Limited Warranty.
perty and Improvements and hereby releases Builder from all claims and liabilities relating to the Property or Improvements except for Builder’s obligations ariging under the express Limited Warranty.
11. Owner and Builder agree, acknowledge and stipulate that, except as otherwise provided‘ Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective bets officers, directors, shareholders, representatives, successors and assigns.
BUILDER: By. #loomfield Properties, Inc.
a Teyas corporation,its General Partner By: —_— A: jee President Donald J. Dykstra, President Bloomfield Properties, Inc, Ganeral Partner Address: 807 Potomac Place Southlake, TX 76092 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was acknowledged before me on the / { 4 day of MAY, 2007 by TROY MONTGOMERY AND MINDY HUBIK (Owner).
§. BROWNLEE % Notary Public, State of Texas My Commission Expires i November 20, 2010 Notary Public, State of Personalized Notary Seal 4\2 iL: 8 SA NS Mer THE STATE OF TEXAS tm wm a COUNTY OF TARRANT §. BROWNLEE % Notary Public, State of Texas My Commission Expires November 20 Ao AFTER RECORDING, RETURN TO: EO Bloomfield Homes, L.P.
807 Potomac Place Southlake, TX 76092 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 5 of 5 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7