o0€S60L8070 Electronically Recorded —=Taant County Texas Official Public Records 2008 Mar 27 02:55 PM Fee: $ 40.00 D208109530 Fegpenna Minheose.) Submitter: ACS INC 7 Pages Suzanne Henderson Suzanne Henderson County Clerk Tarrant County Q Recorded As: Restrictive Cov t An reement Number of Pages: HFTC GF#: Ly © Received from norm HFTC GF# $L08318831 (SB) RESTRICTIVE COVENANT AND AGREEMENT (New Residence Construction Contract — Contract of Sale) This Restrictive Covenant and Agreement (this “Agreement’} is made this B day of March, 2008, by and between MARVIN E. DAVIS, 6545 Fairview Drive, 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 as 6545 Fairview Driv Tex: 76148, and being more particularly described as follows: Legal Description Lot 11, BLOCK D, of DURHAM FARMS, an Addition to the City of Wataugs to the Plat thereof recorded in Cabinet A, Slide 10325, of the Plat Recordg Improvements; and WHEREAS, Owner desires to release any implié gi the construction of all improvements on the Propert énts"), including but not limited to, any implied yiay exist in Texas and further stipulates that this of which is hereby acknowledged, th g ereby acknowledge, agree and stipulate the following: 1. The parties specificg commerce and that any dispute (WK not limited to, (a) any and a Federal A Qitra orm NZ. §§ 1 et seq.) or, if applicable, by similar state statute, and not by or in a court of law.
All decisions fecting the arbitrability of any Dispute shall be decided by the arbitrator. In no event shall Owner be
eq.) or, if applicable, by similar state statute, and not by or in a court of law.
All decisions fecting the arbitrability of any Dispute shall be decided by the arbitrator. In no event shall Owner be by the ‘arbitratoy/alf or any portion of its costs and fees. "Costs and fees" may include reasonable expenses of mediationNand/ofAarbitration, including arbitrator's fees, administrative fees, travel expenses and out-of-pocket expenses such as copying and telephone, court costs, witness fees and reasonable attorney's fees. The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth in the applicable warranty documents. If there 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 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 1 of 5 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 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.
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: 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; eG; The arbitrator shall render a written award and, if requested by any party, a reasgned award; f. The Owner shall not be required to pay any unreasonable costs or fees and the.a shall have the right to apportion costs and fees in an equitable manner in the arbitration 6 g. Any award rendered in the proceeding shall be fina! and binding and judgp such award may be entered in any court having jurisdiction.
portions of this Agreement. Owner and Builder further agree (1) that any Dispo officers, employees and agents shall be resolved as set forth herein and no shall have the option to include its subcontractors and suppliers as parties in pon motiotrof any party to the proceeding, e herewith. Inasmuch as this Agreement tion in violation of this Agreement, such hses including attorneys’ fees incurred direct that such controversy, dispute or claim be arbitrated in accor provides for mandatory arbitration of Disputes, if any party commerts 2. OWNER AND BUILDER ACKNOWLEDG RESIDENTIAL CONSTRUCTION LIABILITY ACT (the “"RCLA") APPLIES TO CONSTRUCTIO ND ANY DISPUTES OR CLAIMS REGARDING
mandatory arbitration of Disputes, if any party commerts 2. OWNER AND BUILDER ACKNOWLEDG RESIDENTIAL CONSTRUCTION LIABILITY ACT (the “"RCLA") APPLIES TO CONSTRUCTIO ND ANY DISPUTES OR CLAIMS REGARDING CONSTRUCTION DEFECTS b EZ IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE RCLA CO tA S TO EXPEDITE THE RESOLUTION OF CLAIMS.
OWNER AND BUILDER ALSO AK oN AGREE THAT A REQUEST FOR WARRANTY PERFORMANCE SHALL NOT & BHR AS=ANOTICE OF CONSTRUCTION DEFECT UNDER THE RCLA, AND THAT ANY NOTICE B RE LA SHALL BE SEPARATELY SENT TO BUILDER IN THE MANNER REQUIRED BY THE RCL4 ®D BUILDER ACKNOWLEDGE THAT THE RCLA CONTROLS TO THE EXTENT OF ANY CQ BETY EEN THE RCLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRACTI R PROTECTION ACT, SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE @O "), AS PROVIDED BY THE RCLA AND THE DTPA.
BY BUILDER ELATING TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXPRESS WRIA WARRANTY PROVIDED BY BUILDER (the “Limited Warranty"). OWNER AGREES AND TRAT A UCH IMPLIED WARRANTY, TO THE EXTENT IT EXISTS IN TEXAS, IS EXPRESSLY REPLACED HE TERMS OF THE LIMITED WARRANTY INCORPORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF SUCH LIMITED WARRANTY ARE CLEAR, SPECIFIC AND SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION WHICH BUILDER IS OBLIGATED TO MEET. OWNER ACKNOWLEDGES THAT THEY HAVE RECEIVED AND REVIEWED SUCH 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 related to the Improvements that are the responsibility of Builder exceeds 20% of the then current fair market value of RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 2 of 5 Revised 1/2005
r defects in or related to the Improvements that are the responsibility of Builder exceeds 20% of the then current fair market value of RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 2 of 5 Revised 1/2005 (New Residence Construction Contract ~ Contract of Sale) Home Builders Association of Greater Dallas Form B-7 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.
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.
a. Before bringing items into the home, check for signs of mold. Poffe furnishings, or stored clothing and bedding material, as we could already contain mold growth. Once mold is broug!
to other areas of the home.
b. Regular vacuuming and cleaning will help reduce mol tile cleaners are effective in eliminating or preve c. Keep the humidity in the home low, Venth q kitchens and bathrooms by opening the
the home.
b. Regular vacuuming and cleaning will help reduce mol tile cleaners are effective in eliminating or preve c. Keep the humidity in the home low, Venth q kitchens and bathrooms by opening the windows, using exhaust fans, or SE ee p 5 d. Inspect for leaks on a regular bas promptly. Inspect condens Take notice of musty odors, e. Should mold deyé test to see if i upholstery g services of & surface is color safe. Porous materials, such as fabric, discarded. Should the mold growth be severe, call on the nal.
ay assist in effective air filtration and dehumidifiers to maintain jlable at additional cost from numerous vendors.
disclaims any liability for, any damages (whether actuai, special, incidental or _ Iiness or allergic reactions (including, but not limited to, any personal injury) which Owner (forth @lves and for their joint and several agents, heirs, successors, executors, subrogees, attorneys and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and insurers (collectively, the "Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whatever kind or nature (including, but not limited to, any claim for personal injury, whether resulting from the negligence 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 is estopped to assert) all claims to the contrary.
RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 3 of 5 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7
l claims to the contrary.
RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 3 of 5 Revised 1/2005 (New Residence Construction Contract — Contract of Sale) Home Builders Association of Greater Dallas Form B-7 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 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.
OWNER: BUILDER: Donald J. Dykstra, President Bloomfleld Properties, Inc.
Address: 807 Potomac Place Ganerat Partner Southlake, TX 76092 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 5 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 March, 2008, by Marvin E.
Davis (Owner). i ; Hoth, §. BROWNLEE Notary Public, State of Texas /f Notary Public, State of Texas Personalized Notary Se fi My Commission Expires {f i November 20, 2019 | THE STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was acknowledged before me on the 5. B lotary Public, [ a My Commission Expires
d Notary Se fi My Commission Expires {f i November 20, 2019 | THE STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was acknowledged before me on the 5. B lotary Public, [ a My Commission Expires f BP es AFTER RECORDING, RETURN TO: > Bloomfield Homes, L.P.
807 Potomac Place Southlake, TX 76092 State of Texas 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 EXHIBIT “A” Lot 11, BLOCK D, of DURHAM FARMS, an Addition to the City of Watauga, Tarrant County, Texas, according to the Plat thereof recorded in Cabinet A, Slide 10325, of the Plat Records of Tarrant County, Texas.