90128-8070 Electronically Recorded = ‘atant County Texas Official Public Records 2008 May 20 10:10 AM Fee: $ 36.00 D208187106 Fhegenns Mien eee,) Submitter: LANDATA 6 Pages Suzanne Henderson STNT [10801429] TB /224.
RESTRICTIVE COVENANT AND AGREEMENT “Agreement”) is md is (>. jay of . 706 Lifestyles, L.P. of 6815 Manhattan Bivd., Suite 400, Fort Worth, Texas 76120 (hereinafter referred to as “Builder”).
by and between RECITALS WHEREAS, Owner is | the current owner, of the following described property situated at Te Canisius Court €t NWNorth VX. PIS (the “Property”), and more particularly described as ‘ollows: tot 04, sioe 2. Fossil Hill _ County, Texas, and being locally known as.
ADDITION, an Addition to ths, City (hk WHEREAS, Owner purchased the Property and Improvements (hereinafter defined) from Builér, and through alternative dispute resolution procedures; and WHEREAS, to the fullest extent permitted by applicable law, Owner desires to release-all implied under Builder relating to the construction of all improvements on the Property (the “Improvements”)_.in luding warranties of good and workmanlike constuction and habitability and further stipulates that this Ag 2 NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of hereby acknowledge, agree and stipulate he following: 1, The parties specifically agree that any dispute (whether contrac!
including, but not limited to, (a) any and al} controversies, disputes or claims ari N thereto between Builder and Owner, the Property or Improvements, or any dealings betwee!
torfiny contract and any amendments he Owner.and Builder; (b) any controversy, dispute ed to have been_made by Builder or Builder’s Owner on the Property or in the subdivision,
or any dealings betwee!
torfiny contract and any amendments he Owner.and Builder; (b) any controversy, dispute ed to have been_made by Builder or Builder’s Owner on the Property or in the subdivision, yitted to binding arbitration as provided by the by or in a court of law. All decisions respscting the right to award reasonable attorneys’ fees and cessary, the arbitration shall be conducted pursuant to any procedures set forth in the applicable warranty documents, effflict between this Agreement and such procedures, the provisions of this Agreement shall control. Furthermore, if 2 arbitrator designated in any applicable warranty documents Association (“AAA”) in accordance with its applicg ce . If fokany rbaspn, the AAA is unable or unwilling to conduct the mediation and/or binding arbitration proceedings specified above, égether in good faith to select a mediator and, if all disputes are not tesolved by mediation, an arbitrator in the coygty eptity is located. If the parties are unable to agree on the appointment ofa i eral jurisdiction in the subject county to appoint a mediator and/or arbitrator.
It is stipulated and agreed that the filing offa peti e ghointment of a mediator and/or arbitrator shal! not constitute a waiver of the right to enforce binding arbitration.
In any arbitration proceeding bef representative; and (c) any personal injury or property damage alleged to have béen sbgtal shall first be submitted to mediation and, if not settled during mediation, shal yfier ke Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) or, if applicable, by ey the arbitrability of any Dispute shall be decided by the arbitrator.
iation and, if not settled during mediation, shal yfier ke Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) or, if applicable, by ey the arbitrability of any Dispute shall be decided by the arbitrator.
a. All applicable Eedera ate haw (including Chapter 27 of the Texas Property Code) shall apply, b. All applicablgt) catkes Of ttion, remedies and defenses that would be available in court shall apply; c. The proceedings chnducted by a single arbitrator selected by a process designed to ensure the neutrality of the Thefapbttrator Sha der a written award and, if requested by any party, a reasonedaward; e Gwner shall got be required to pay any unreasonable costs, expenses or arbitrator's fees and the arbitrator shall have igh\to apportion the cost of any such items in an equitable manner in the arbitration award; and arti rendered in the proceeding shall be final and binding and judgment upon any such award may be entered in ouN paving jurisdiction.
der agree that notwithstanding anything to the contrary, the rights and obligations set forth in this Agreement shall survive the i bale of the Property and/or Improvements from Builder to Owner. The waiver or invalidity of any portion of this Agreement dt the validity or enforceability of the remaining portions of this Agreement. Owner and Builder further agree (1) that RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 1 of 4 any Dispute involving Builder’s directors, officers, employees and. agents shal! be resolved as set forth herein and not in a court of law; and (2) that Builder shal! have the option to include its subcontractors and suppliers as parties in the mediation and arbitration.
If Owner or Builder file a proceeding in any court to resolve any such controversy, dispute or claim, such action shal] not constitute a
tors and suppliers as parties in the mediation and arbitration.
If Owner or Builder file a proceeding in any court to resolve any such controversy, dispute or claim, such action shal] not constitute a waiver of the right of such party or a bar to the right of any other party to seek arbitration of that or any other claim, dispute or controversy, and the court shall, upon motion of any party to the proceeding, direct that such controversy, dispute or claim be arbitrated in accordance herewith.
Inasmuch as this Agreement provides for mandatory arbitration of Disputes, if any party commences litigation in violation of this Agreement, such party shall reimburse the other parties to the litigation for their costs and expenses including attorneys’ fees incurred in seeking abatement of such litigation and enforcement of arbitration.
2. OWNER AND BUILDER ACKNOWLEDGE THAT THE RESIDENTIAL CONSTRUCTION LIABILITY ACT (the “RCLA”) APPLIES TO CONSTRUCTION DEFECTS AND ANY DISPUTES OR CLAIMS REGARDING CONSTRUCTION DEFECTS IN CONNECTION WITH THE IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE RCLA CONTAINS PROVISIONS TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER ALSO ACKNOWLEDGE AND AGREE THAT A REQUEST FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONSTRUCTION DEFECT UNDER THE RCLA, AND THAT ANY NOTICE UNDER THE RCLA SHALL BE SEPARATELY SENT TO BUILDER IN THE MANNER REQUIRED BY THE RCLA. OWNER AND BUILDER ACKNOWLEDGE THAT THE RCLA CONTROLS TO THE EXTENT OF ANY CONFLICT BETWEEN THE RCLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT, SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE (the “DTPA”), AS PROVIDED BY THE RCLA AND THE DTPA, .
CLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT, SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE (the “DTPA”), AS PROVIDED BY THE RCLA AND THE DTPA, .
3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT HE/SHE/THEY HAS/HAVE REVIEWBD AND UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
4. Owner hereby agrees, acknowledges and stipulates that THE ONLY EXPRESS WARRANTY GIVEN B RTO OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS 1S THAT EXPRESS WRITTEN LIMITEDAIOM AR TY PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES AND UNDERSTANDS THAT BY SIGNY SA ‘ THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER ANY THEORY OF IMPLIED WARRA WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED WARRANTY, TO THE EXTENT MVE t EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WARRANTY [NCORPORATEDYBY 'R 5. In the event that the reasonable cost. of repair necessary to repair a\congtruction efgct or defects in or related to the Improvements that are the responsibility of Builder exceeds 30% of the then current fark make the Improvements, as determined without reference to the construction defect(s), Builder may elect to repurchaS&the Property fice with Section 27.004 of the Texas 6. Owner and Builder hereby agree, acknowledge and stip products incorporated into the Improvements such as air con yteners, appliances or equipment shall be assigned to Owner. Owner Rok a OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING § DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHAD OTHER WARRANTIES YO THE FULLEST EXTENT Ph 7. Builder has exercised reasop Ki A undesirable organisms; however, even util?
c hniques and designs, any construction project can experience a problem with molds and other biological impuyitio
NT Ph 7. Builder has exercised reasop Ki A undesirable organisms; however, even util?
c hniques and designs, any construction project can experience a problem with molds and other biological impuyitio ance’ procedures are not implemented. Such maintenance is a responsibility of Agate the occurrence of mold growth in the home, and thereby minimize any possible a. Before bringingMtex ome, check for signs of mold. Potted plants (roots and soil), furnishings, or stored : wag PRatehial, as well as many other household goods, could already contain mold growth. Once mold is broughf in, e, ifspores can spread to other areas of the home.
a ig, dnd cleaning will help reduce mold levels. Miid bleach solutions and most tile cleaners are effective qventing mold growth.
midi#/ in the home low. Ventilate kitchens and bathrooms by opening the windows, using exhaust fans, or ¢ air conditioning to remove excess moisture in the air, Promptly clean up and dry spills, condensation and 2s of moisture. Promptly replace any materials that cannot be thoroughly dried, such as drywall or insulation.
pect for leaks on a regular basis. -Look for discolorations or wet spots. Repair any leaks promptly. Inspect Susation pans (refrigerators and air conditioners) for mold growth. Take notice of musty odors, and any visible signs RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 2 of 4 €, Should mold develop, thoroughly clean the affected area with a mild solution of bleach. First, test to see if the affected material or surface is color safe. Porous materials, such as fabric, upholstery or carpet should be discarded. Should the mold growth be severe, call on he services of a qualified professional. .
cted material or surface is color safe. Porous materials, such as fabric, upholstery or carpet should be discarded. Should the mold growth be severe, call on he services of a qualified professional. .
£ Electronic air filters that may assist in effective air filtration and dehumidifiers to maintain humidity levels are available at additiona! cost from numerous vendors.
Whether or not a home experiences mold growth depends largely on how it is maintained. The Builder has not made, created or invited (nor does it intend to make, create or invite) any warranty or any other expectancy, either express or implied, in regard to any mold or other biological impurities. The Owner understands and agrees that the Builder is not responsible, and hereby disclaims any liability for, any damages (whether actual, special, incidental or consequential) or for any injury, illness or allergic reactions (including, but not limited to, any personal injury) which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals or biological impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner (for themselves 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
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.
Owner hereby further releases, on behalf of themselves and on behalf of any insurance carrier or third-party with which Qwnier deals, Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or thirdparty-for damag to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damagésijo Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to obtain from any and all i subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real prope which the Property is located. : 9. Owner and Builder further stipulate that this Agreement SHALL RUN WITH THE LA 10. By execution of this Agreement, (i) Owner acknowledges that the Improvgments have poved and a except for Builder’s obligations arising under the express Linited Warranty.
11. Owner and Builder agree, acknowledge and stipulate that, expéPqas otherwistprovideg
t the Improvgments have poved and a except for Builder’s obligations arising under the express Linited Warranty.
11. Owner and Builder agree, acknowledge and stipulate that, expéPqas otherwistprovideg upon and inure to the benefit of the parties hereto and their respective Me xecutors, officers, directors, shareholders, representatives, successors and assigns.
BUILDER: HMH Lifestyles, L.P.
By: Printed Name: Its: Address: 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4 e Should mold develop, thoroughly clean the affected area with a mild solution of bleach. First, test to see if the affected material or surface is color safe. Porous materials, such as fabric, upholstery or carpet should be discarded. Should the mold growth be severe, call on he services of a qualified professional. .
f£ Electronic air filters that may assist in effective air filtration and dehumidifiers to maintain humidity levels are available at additional cost from numerous vendors.
Whether or not a home experiences mold growth depends largely on how it is maintained. The Builder has not made, created or invited (nor does it intend to make, create or invite) any warranty or any other expectancy, either express or implied, in regard to any mold or other biological impurities. The Owner understands and agrees that the Builder is not responsible, and hereby disclaims any liability for, any damages (whether actual, special, incidental or consequential) or for any injury, illness or allergic reactions (including, but not limited to, any personal injury) which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals or biological
ions (including, but not limited to, any personal injury) which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals or biological impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner (for themselves 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.
Owner hereby further releases, on behalf of themselves and on behalf of any insurance carrier or third-party with which Oymer dé Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or thirdparty-for dangages to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damagesfrom™ ui
makes a claim upon any insurance policy or thirdparty-for dangages to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damagesfrom™ ui Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to obtain from any and all j subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real proper which the Property is focated. : 9. Owner and Builder further stipulate that this Agreement SHALL RUN WITH TH: 10. By execution of this Agreement, (i) Owner acknowledges that the Improve!
contract between Owner and Builder or that any discrepancies or differences have been apy accepted the Property and Improvements and hereby releases Builder from all claims and Ia except for Builder’s obligations arising under the express Linited Warranty.
ad by and (ii) Owner has the Property or Improvements fn, this Agreement shall be binding It. Owner and Builder agree, acknowledge and stipulate that, exc! d tors, officers, directors, shareholders, representatives, upon and inure to the benefit of the parties hereto and their respective heir: successors and assigns.
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Printed Name; 7 Hts: Janet Lewis Address: 6815 Manhattan Bivd., Suite 400 | Assistant Secretary Fort Worth, TX 76120 RE E COVENANT AND AGREEMENT — PAGE 3 of 4 STATE OF TE § § conrvor WONT T. BEESON Otary Public, State of Texas = My Commission Expi eS pires Rive 05/18/2009 STATE OF TEXAS § TN. § TY OF § 125 fs 9 This _, ins acknowlgiged before me on the , BEESON “= Notary Public, State of Texas Personalized Notary Seal Qe 2s My Commission Expires . 05/16/2009 THE STATE OF TEXAS § , § COUNTY OF § 20 day of by LP. , on behalf of said entity.
me on the , BEESON “= Notary Public, State of Texas Personalized Notary Seal Qe 2s My Commission Expires . 05/16/2009 THE STATE OF TEXAS § , § COUNTY OF § 20 day of by LP. , on behalf of said entity.
This instrument was acknowledged be: me 5 A o Notary Public, State of Texas Personalized Notary Seal Qs AFTER RECORDING, RETURN TP History Maker Homes, LLC 6815 Manhattan Blvd., Suite Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4 STATE OF TEXAS Samant Mariseta an 15 on May 2008 Personalized Notary Seal inste was acknowledged, before me on Alexande NOST T. BEESON PUB Notary Public, State of Texas My Commission Expires FATE OF TEXP 05/16/2009 the day Notary Public, State of Texas by STATE OF TEXAS GUNTY UNTY OF Tarant § § as acknowledged before me on the Kawrence Alexander Personalized Notary Seal OND T. BEESON TARY PUB Notary Public, State of Texas FATE OF TE § My Commission Expires 05/16/2009 THE STATE OF TEXAS COUNTY OF Tarrant NTY OF This This instrument was acknowledged [name] 15 day May May Notary 2028 by Unofficial Copy Personalized Notary Seal AFTER RECORDING, RETURN TO: History Maker Homes, LLC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT - PAGE 4 of 4 May on behalf of said entity.
Atacur Bell Notary Public, State of Texas STACEY BELL MY COMMISSION EXPIRES February 14, 2010