zegzeo20za — This Restrictive Covenant and Agreement (this “Agreement”) is made this of. a re n : JuanA nitsinie Pratena + 22 Prasenmeme) of AAU [address] (hereinafter referred to as “Owner”, whether oncfor Electronically Recorded = ‘atant County Texas Official Public Records 2007 Jan 30 08:38 AM Fee: $ 36.00 D207032632 Fhegenns Mien eee,) Submitter: LANDATA 6 Pages Suzanne Henderson SINT [iQwoees fa00 | mt RESTRICTIVE COVENANT AND AGREEME RECITALS HEREAS, Owner as ic current WET of the following desc Qu0 ‘ud hin ay (DZ 2rUGhe “Property”), follows: .
oe f Block fO.. ch Céunty, Texas, und being locality known as { yand WHEREAS, Owner purchased the Property and Improvements thereinafl WHEREAS, the undersigned acknowledge that it is the policy of the Sta through altemative dispute resolution procedures; and WHEREAS, to the fullest extent permitted by applicable law, under Builder relating to the construction of all improvements on the Prop warranties of good and workmanlike construction and habitabili further\pti NOW, THEREFORE, for valuable consideration, the hereby acknowledge, agree and stipulate the following: lL. The parties specifically agree that any dj including, but not limited to, (a) any and all conpreversies § arising under, or related to, any contract and any amendments dealings between the Owner and Builder; (b) any controversy, dispute £; or warranties alleged to have been made by Builder or Builder's sed/to have been sustained by Owner on the Property or in the subdivision, ¢ meMfation, shall thereafter be submitted to binding arbitration as provided by the & by similar state statute, and not by or jn a court of law. All decisions respecting.
perty or in the subdivision, ¢ meMfation, shall thereafter be submitted to binding arbitration as provided by the & by similar state statute, and not by or jn a court of law. All decisions respecting.
the arbitrability of any Dispute shall bg de Ay the ardiggtor. The arbitrator shall have the right to award reasonable attorneys’ fees and expenses, including those incurred in mi antlarbkration. The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth in the applica bments. If there is any conflict between this Agreement and such procedures, the provisions of this Agreement shall gan ‘urthermofe, if the mediator and/or arbitrator designated in any applicable warranty documents foNanyyeason, then the mediation and arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordgnc: its &ppl le rules. If, for any reason, the AAA is unable or unwilling to conduct the mediation and/or binding arbitration proceedingsisp bove, the parties agree to work together in good faith to select a mediator and, if all disputes are not resolved by mediation, an arbit soynty where the subject Property is located. If the parties are unable to agree on the appointment of a ‘ h fetition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator.
‘a petition requesting appointment of a mediator and/or arbitrator shall not constitute a waiver of the representative; and (c) any personal injury of prép shall first be submitted to mediation and ts It is stipulated and agy right to enfogge bingfr eeging between the parties: eplicatte Federal and State law (including Chapter 27 of the Texas Property Code) shal! apply;
ubmitted to mediation and ts It is stipulated and agy right to enfogge bingfr eeging between the parties: eplicatte Federal and State law (including Chapter 27 of the Texas Property Code) shal! apply; jcable claims, causes of action, remedies and defenses that would bc available in court shall apply; prfceeding shall be conducted by a single arbitrator selected by a process designed to ensure the neutrality of the arbitrator, ¢ parties shall be entitled to conduct reasonable and necessary discovery; e arbitrator shall render a written award and, if requested by any party, @ reasoned award, ‘The Owner shall not be required to pay any unreasonable costs, expenses or arbitrator's fees and the arbitrator shall have the right to apportion the cost of any such items in an equitable manner in the arbitration award; and g. Any award rendered in the proceeding shall be final and binding and judgment upon any such award 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 1 of 4 any Dispute involving Builder’s directors, officers, employees and agents shall 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.
nts shall 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 shall 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 TRE 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,
D 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.
3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT HE/SHE/THEY HAS/HAVE REVIE UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
4. Owner hereby agrees, acknowledges and stipulates that THE ONLY EXPRESS WARRANTY GIVEN OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS !S THAT EXPRESS WRITTEN LIMITED J THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER ANY THEORY OF IMPLIED WARR WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED WARRANTY, TO THE EXTENT EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WARRANTY INCORPORATED 3*"R AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF SUCH LIMITED WARRANTY ECIFIC AND SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION WHI DIGATED TO MEET. OWNER ACKNOWLEDGES THAT THEY HAVE RECEIVED AND REVIEWEDAU IER AGREES 5. In the event that the reasonable cost of repair necessary to repair a gonSp Improvements that are the responsibility of Builder exceeds 30% of the then current fai e offthe Improvements, as determined without reference to the construction defect(s), Builder may elect to repurchasgythe Propert)\in actofdang Property Code. This right of election shall survive the completion of the Con! d Property from Builder to Owner and shall be binding on Owner’s successors and 2 6. Owner and Builder hereby agree, acknowledge and stip products incorporated into the Improvements such as air conditiggers, hf appliances or equipment shall be assigned to Owner. Owner here eds OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING SY
edge and stip products incorporated into the Improvements such as air conditiggers, hf appliances or equipment shall be assigned to Owner. Owner here eds OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING SY OR CONSUMER PRODUCTS AND EXPRESSLY OF USE FOR A PARTICULAR PURPOSE, AND ANY 7. Builder has exercised reasonapte re inlassuri the Property and Improvements are free of harmful molds and other undesirable organisms; however, even utilizifg plogérmynateriats ghting mold growth.
if 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 esf moisture. Promptly replace any materials that cannot be thoroughly dried, such as drywall or insulation.
for“leaks on a regular basis. Look for discolorations or wet spots. Repair any leaks promptly. inspect dation 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 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 the 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
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 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
on 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 O Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or third-party for dam&gesrelated to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damages 3 Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to obtain from any and all ing subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real propepy 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 Improvemp accepted the Property and Improvements and hereby releases Builder from all claims ang liqbiliti g Property or Improvements except for Builder’s obligations arising under the express Limited Warranty.
11. Owner and Builder agree, acknowledge and stipulate that, exc: e vided herbin, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective eetsy-tfirectors, shareholders, representatives, successors and assigns.
BUILDER: HMH Lifestyles, L.P.
By: Printed Name: Its: Address: 6815 Manhattan Blvd., Suite 400
rties hereto and their respective eetsy-tfirectors, 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 STATE OF TEXAS § § —s county or [asa nT § a. 3 This instrament was acknowledged before me on the x. “J day of * 207 by / whiz a la Od (Owner).
RY & NANDEZ Notary Public STATE OF TEXAS Gomes Exp, 87/20/2008 Notary)Public, State of Texas Personalized Notary Seal My STATE OF TEXAS § a § COUNTY or | (gator l § This instrament was acknowledged before SSN ERNAND Notary Publig d ATE OF TEXAS { na Comm, Exp. 07/20/2008 Ry SheHes NIG IY THE STATE OF TEXAS § This instrument was acknowledged (Byfore day of » 20 by [name], \S les, L.P. , on behalf of said entity.
o SH Notary Public, State of Texas Personalized Notary Seal aS AFTER RECORDING, RETURN History Maker Homes, LLC 6815 Manhattan Blvd., Spite 40Q Fort Worth, TX 76120, SS RESTRICTIVE COVENANT AND AGREEMENT ~ PAGE 4 of 4 Personalized Notary Seah 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 the 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
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, 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 biological impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of vatue, 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, exectitors, subrogees, attomeys 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
on 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 Jaw, Owner hereby waives (and is estopped to assert) all claims to the contrary.
stibrogation of any such claims.
8. Ovmer and Builder agree that this Agreement shall be filed of record in the appropriate real prope which the Property is located.
contract between Owner and Builder or that any discrepancies or differences have been 3 accepted the Property and Improvements and hereby releases Builder from all claims a except for Builder’s obligations arising under the express Limited Warranty.
1}, Owner and Builder agree, acknowledge and stipulate that, excaj upon and inure to the benefit of the parties hereto and their respective successors and assigns.
BUILDER: HMH Lifestvles, L.P.
By: Printed Its: Name: Address: 6815 Manhattab Blvd.-Se Fort Worth, TX 76420 RES E COVENANT AND AGREEMENT - PAGE 3 of 4 STATE OF TEXAS COUNTY OF Levant Contonio Moreno § 25 day of Jan 2007 by This instrument was acknowledged before me on the (Owner).
Notary Public, State of Texas Personalized Notary Seal STATE OF TEXAS TARY PUBC MARY HELEN HERNANDEZ Notary Public STATE OF TEXAS STATE OF TEXS NV Comm. Exp. 07/20/2008 OFIQncent COUNTY OF § the 25 day of This instrument was acknowledged before me on the Manuba Marge Moraes Personalized Notary Sea 00000000 TARY PUBL MARY HELEN HERNANDEZ LON STATE OF TEXAS Notary Public STATE OF TEXAS My Comm. Exp. 07/20/2008 Notary Public. State of Texas THE STATE OF TEXAS COUNTY OF Tarrent.
§
alized Notary Sea 00000000 TARY PUBL MARY HELEN HERNANDEZ LON STATE OF TEXAS Notary Public STATE OF TEXAS My Comm. Exp. 07/20/2008 Notary Public. State of Texas THE STATE OF TEXAS COUNTY OF Tarrent.
§ This instrument was acknowledged before me on the 25 day of Jodi Jensen [name]. Assistant Jan [title] of HMH Lifestyles, L.P., on behalf of said entity.
2007 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 Notary Public, State of Texas JANET R. LEWIS TARY PUBLIC Notary Public, State of Texas STATE OS TE My Commission Expires July 08, 2007