Electronically Recorded = ‘2!ant County Texas Official Public Records 2008 Dec 02 11:27 AM Fee: $ 36.00 D208441 917 Suzanne Henderson STNT/ 1080/99 | TEJA RESTRICTIVE COVENANT AND AGREEMENT ements wadestis. LD ty of KV 0 V COS y 4 [name] of . Suite 400, North. Richland Hills, Tx. 76180 (hereinafter referred to = “Builder”.
This Restyctive Covenant.and Agreement (this * | alas . ‘ RECITALS WHEREAS,. Owner is the cunent owier of the following described follows: tet GE, rock / Epes! hu ADDITION, an Addjse Te county, Texas, and being locally known as L0Y2F \ 2. > and WHEREAS, Owner purchased the Property and Improvements (heretnafler defined) through alternative dispute resolution procedures, and : .
WHEREAS, to the fullest extent permitted by applicable law, Owner dggire! case all implied warranties given by, through or under Builder relating to the construction of all improvements on the Property Mots}, including but not limited to, all implied warranties of good and worknantike construction and habitability and S J es thst th NOW, THEREFORE, for valuable consideration, the re hereby acknowledge, agree and stpulate the following: thereto between Builder and Owner, the Property or p e or any|]deMings between the Owner end Builder; (b) any controversy, dispute yf, piseS of warranties alleged to have been made by Builder or Builder's 4 M2 ag efhave been sustained by Owner on the Property or in the subdivision,
Owner end Builder; (b) any controversy, dispute yf, piseS of warranties alleged to have been made by Builder or Builder's 4 M2 ag efhave been sustained by Owner on the Property or in the subdivision, shall first be submitted to mediation and, if sfosd itz, mediation, shall thereafter be submitted to bindme arbitration as provided by the Federal Arbitration Act (9 U.S.C. §§ 1 et sdq.) Greif A Similar state stalute, and not by or in a court of law. All decisions respecting the arbitrability of any Dispute shall be debjded Sy the arDigratory. The arbitrator shall have the right to award reasonable attomeys’ fees and expenses, including those incurred in medidign arbitrati The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth in the applicab a docuffents. Hf there is any conflict between this Agreement and such procedures, the provisions of this Agrecment shall g# be, if the mediator and/or arbitrator designated in any applicable warranty documents cannot conduct the mediation or ar¥ éson, then the mediation and arbitration shall be conducted by the American Arbitration Z-6LPP807d bc fhe parties. agree to work together in good-faith-to-select-a-mediator and, if all disputes.are not resolved by mediation, a nfy where the subject Property is located. If the parties are unable to agree on the appointment of a mediator and/or arbitrat ar may petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator.
It is stipulated dndNegrée inpof a petition requesting appointment of a mediator and/or arbitrator shall not constitute a waiver of the doplibable Federal and State law (including Chapter 27 of the Texas Property Code} shall apply;
f a petition requesting appointment of a mediator and/or arbitrator shall not constitute a waiver of the doplibable Federal and State law (including Chapter 27 of the Texas Property Code} shall apply; applicable claims, causes of action, remedies and defenses that would be available in court shail apply; ; hroceeding shall be conducted by « single arbitrator selected by a process designed to ensure the neutrality of the wiraior, © parties shall be entitled to conduct reasonable and necessary discovery; ad e. The arbitrator shall render a written award and, if requested by any party, areasoned award: £ The Owner shall not be required fo pay ary unreasonable costs, expenses or arbitrator's fees and the arbitrator shall have the right to.apportion the cosi of any such items in an equitable manner in the arbitration award; and E- Any award rendered in the proceeding shall be final and binding and judgment upon any such awaid may be entered in any court having jurisdiction.
Owner and Builder agree that notwithstanding anything to the contrary, the rights and obligations set forth in this Agreement shall survive the closing of the sale of the Property and/or Improvements from Builder to Owner. The waiver or invalidity of any portion of this Agreement shall not affect the validity or enforceability of the remaining portions of this Agreement. Owner and Builder further agree (1) that RESTRICTIVE COVENANT AND AGREEMENT — PAGE 14 of 4 that Builder shall have.the-opticn to include its subcontractos and svppliers_as parties-in the mediation and arbitration.
that Builder shall have.the-opticn to include its subcontractos and svppliers_as parties-in the mediation and arbitration.
; If Owner or Builder file a proceeding in any court to resolve any sucirconiroversy, dispute or claim, such action shall not-constitute a waiver of the right ofsuch party or a bar to the right of any other party io scck-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 arbifration of Disputes, if any party commences litigation in violation-of this Agreement, such party shall reimburse the other parties to the fitigation for their costs and expenses including attomeys’ 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 PROVIS TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER ALSO ACKNOWLEDGE AND AGREE THAT AR See TU ARTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE (the “DTPA”), AS PROVIDED BY DEP Abc® ce sie .
_ 3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT HE/SHE/THEY UNDERSTANDS THE PROVISIONS CONTAINED HEREIN, 4. Owner hereby agrees, acknowledges and stipulates that THE ONLY EXPR OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXPRES YWITED HOME WARRANTY
DERSTANDS THE PROVISIONS CONTAINED HEREIN, 4. Owner hereby agrees, acknowledges and stipulates that THE ONLY EXPR OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXPRES YWITED HOME WARRANTY PROVIDED BY BUILDER (the “Limited Warranty”), OWNER AGREES AND UNDERSTAND A NING THIS AGREEMENT THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER ANY Pri 'ARRANTY OF GOOD AND WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED W. EMT TT EXISTS IN TEXAS, IS EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED’ WARRA CORPORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF SUCH WARRANTY ARE CLEAR, SPECIFIC AND MEET. OWNER ACKNOWLEDGES-THAT THEY HAVE RECEEYED A TO DELIVER A-COPY OF THE LIMITED WARRANTY TO d construction defect or defects in or related to the Improvements that are the responsibility of Builder exceeds 30% e Yaen burrehit fair market value of the Improvements, as determined without reference to the construction defect{s), Builder may eléctAt ve ace je Property in accordance with Section 27.004 of the Texas Property Code. This right of election shall survive tract between Owner and Builder and the delivery of the deed to the Property from Builder to Owner and shall be bind and assigns.
6. -Owmer and Builder hereb and stipulate that all manufacturer warranties on equipment and consumer products incorporated into the Improveme! oe 3 Ors, heating units, water heaters, refrigerators, ranges, dishwashers and other appliances or equipment shall be assigned er. CxyneNuereby agrees, acknowledges and stipubtes that Builder makes NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIBD RA SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRAD Piss OF ANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY
kes NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIBD RA SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRAD Piss OF ANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES TO.THE ERMITTED BY STATE OR FEDERAL LAW.
J. Builder has exercited ‘xe bble care in assuring that the Property and-Improvements are free of harmful molds and other undesirable organisms; how€ver, ‘eyen ing’modem materials, techniques and designs, any construction project can experience a problem with molds and other bjgfogits HEY If proper maintenance procedures are not implemented. Such maintenance is a responsibility of Owner. The OW oh tak& positive st&ps fo reduce or diminate the occurrence of mold giowth in the home, and thereby minimize any possible adverse effects old. These steps include the following: Beitre Mrafiging items into the home, check for signs of mold. Potted plants (roots and soil), furnishings, or stored djothing and bedding material, as well as many other household goods, could already contain mold growth. Once mold is Broweht into the home, its spores can spread to other areas of the home.
gégular vacuuming and cleaning will help reduce mold levels. Mild bleach solutions and most tile cleaners are effective in eliminating or preventing mold growth.
c. Keep the humidity in the home low. Ventilate kitchens and bathrooms by opening the windows, using exhaust fans, or running the air conditioning to remove excess moisture in the air. Promptly clean up and dry spills, condensation and other sources of moisture. Promptly replace any materials that cannot be thoroughly dried, such as drywall or insulation.
d. Inspect for leaks on a regular basis. Look for discolorations or wet spots. Repair any leaks promptly. Inspect
replace any materials that cannot be thoroughly dried, such as drywall or insulation.
d. Inspect for leaks on a regular basis. Look for discolorations or wet spots. Repair any leaks promptly. Inspect condensation pans (refrigerators and air conditioners) for mold growth. Take notice of musty odors, and any visible signs of mold. R RESTRICTIVE COVENANT AND AGREEMENT — PAGE 2 of 4 BY BUILDER TO Should mold develop, thoroughly clean the affected area with & mild solution of bieach: First, test to see if the affected material or surface is color safe. Porous materials, such as febric, upholstery orcarpet should be discarded: Should the mold growth be severe, call on thie services-of a qualified professional.
Etecironic air filters that may-assist in effective air filtration and dehumidifiers to maintain humidity levets are available at additional cost from numerous vendors.
rh Whether or not a home experiences mold growth depends largely on how it is meintained. The Builder has not made 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, iliness 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 hidfegi impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, Joss of
esult of mold, mildew, fungus, spores, chemicals or hidfegi impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, Joss of and adverse health effects, or any other effects. For Fifty Doltars ($50.00).and other Bood and valuable consideration, the receipt ay of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executors, subrovee and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and insureys “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whatever kind Or zat way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extent allowetN waives (and is estopped to assert) all claims to the contrary.
, created or invited (nor Owner hereby further releases, on behalf of themselves and on behalf of any insurance carier or thifdBuilder from any claim for subrogation. Owner understands that if it makes a claim upon any inspré i “——"--———-to-mold,-chemicals or biological impurities, such insurer or third-party will not be able to py Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of recogd in the appiypriat® Teal pfoperty records of the County in which the Property is jocated.
9. Owner and Builder further stipulate that this Agreement SHALL RB THE LAND.
greement shall be filed of recogd in the appiypriat® Teal pfoperty records of the County in which the Property is jocated.
9. Owner and Builder further stipulate that this Agreement SHALL RB THE LAND.
voniract between Owner and Builder or that any discrepancies or accepted the Property and Improvements and hereby releases Buildet except for Buiider’s obligations arising under the express Limited W: 10. By execution of this Agreement, (i) Owner cso ee At i 11.. Owner and Builder agree, acknowledge and sti6 upon and inure to the benefit of the parties here} d successors and assigns.
L-D : HMH Lifestyles, LP.
By: Printed Name: Its: Address: 9001 Airport Freeway Suite 400 North Richtand Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4. &. Should mold develop, thoroughly clean the affected area with # mild solution of Bien First, test to see if the affected ’ material or surface is color safe. Porous materials, such as fabric,t ubhotstery: or-carpet should be discarded, Should the . moid growth be severe, call on thie services-of a qualified professional.
£ . Elevironic air fitters that may-assist in effective air filtration and rdekienndiainiers to maintain humidity. leveis are qvanate at additional cost from surnerous vendors, .
Whether or not 2 home experiences mold growth depends largely on how it is maintained, The Builder has not made, created-or invited (nor ‘does it intend-io make, create or invite) any warranty or any other expectancy, either express or implied, in regard fo any mold or other biological impurities, The Owner understands and agtees that the Builder'is not responsible, and hereby disclaims any liability for, any damages (hrether
ess or implied, in regard fo any mold or other biological impurities, The Owner understands and agtees that the Builder'is not responsible, and hereby disclaims any liability for, any damages (hrether actual, special, incidental or consequential) or for any ijury, illness or allergic reactions (including, but not limited. io, 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 biologital impurities, including, but not limited to, property demage, personal injury, loss of income, emotional distress, death, loss of use, joss of valu and adverse health effects, or any other effects. For Fifty Dollars ($58. 00). and other good and valuable consideration, the receipt and suff } “Releasees”) of and from any and afl present aod future claims, demands, canses of action and damages, of whatever’ fied oF Ig “—-——~ but not limited to, any claim for personal i injury, whether’ resulting from the ee ofa Release: or otherwise) that aris subrogation of any sach claims.
8. Owner and oe agree that this Agreement shalt be filed of record i which the Property i is located.
5, Owner and Builder farther stipulate that this Agreement SHALL R 10. By execution of this Agreement, (i) Owner acknowledz contract between Owner and Builder or that any discrepancies or differ accepted the Property and Improvements and hereby releases Builder fro except for Builder's obligations arising under the express Limited Warani erwise provided herein, this Agreement shall be binding 3 exemitors, officers, directors, shareholders, representatives, 11. Owner and Builder agree, snowed a ang upon and inure fo the bounltt of the parties herein a ¢ successors and assigns. .
Address: _ HMB Lifestvies, LLP. ,
directors, shareholders, representatives, 11. Owner and Builder agree, snowed a ang upon and inure fo the bounltt of the parties herein a ¢ successors and assigns. .
Address: _ HMB Lifestvies, LLP. , —— 9001 — : Frecdiay Suite 400.
" North Richtand Hills, Tx 76180” RESTRICTIVE COVENANT AND AGREEMENT:— PAGE 3 of 4 STATE OF COUNTY OF Lawant This instrument Esteban ument was acknowledged before me оп the 25 day of Nov 2008 by Personalized Notary Seal o STATE OF TEXAS OTARY PUBLIC NOSTATE OF TEN T. BEESON Notary Public, State of Texas My Commission Expires 05/16/2009 COUNTY OF Jamant § 5 This instrument was acknowledged before me on the Notary Public, State of Texas TARY PUB Personalized Notary Seal S TATE OF TEXP T. BEESON Notary Public, State of Texas My Commission Expires Notery Public, State of Texas 2008 by Unofficial Copy THE STATE OF TEXAS COUNTY OF This instrument Personalized Notary Seal AFTER RECORDING RETURN TO: History Maker Homes, LLC 9001 Airport Freeway, Suite 400 North Richland Hills, Tx 76180 acknowledged before me on the day of [title] of HMH Lifestyles. L.P., on behalf of said entity.
Notary Public, State of Texas 20 by RESTRICTIVE COVENANT AND AGREEMENT - PAGE 4 of 4 STATE OF TEXAS COUNTY OF Tawant This instrument was acknowledged before Esteban was me оп the 25 day of Nov 2008 by Personalized Notary Sea NOTARY PUB AS CATE OF TE T. BEESON Notary Public, State of Texas 05/16/2009Notary Public, State of Texas STATE OF TEXAS § COUNTY OF Janant Maritzas desd Personalized Notary Seal This instrument was acknowledged before me on the ARY 25 State of Texas.
2008 by Unofficial Copy THE STATE OF TEXAS OST UBLICOSH T. BEESON Notary Public, State of Texas ATE OF TEXES My Commission Expires COUNTY OF Passant Sao This instrument § 05/16/2009
25 State of Texas.
2008 by Unofficial Copy THE STATE OF TEXAS OST UBLICOSH T. BEESON Notary Public, State of Texas ATE OF TEXES My Commission Expires COUNTY OF Passant Sao This instrument § 05/16/2009 Personalized Notary Seal AFTER TO: History Maker Homes, LLC 9001 Airport Freeway, Suite 400 North Richland Hills, Tx 76180 me on the 25 day of Nov 2008 by [title] of HMH Lifestyles. L.P., on behalf of said entity.
StacupBeel Notary Public, State of Texas OTARY PUB OF STACEY BELL MY COMMISSION EXPIRES February 14, 2010 RESTRICTIVE COVENANT AND AGREEMENT - PAGE 4 of 4