psvsez20za Electronically Recorded = ‘atant County Texas Official Public R d 2007 Jul 06 01:08 PM Iclal Public RECcoras D207235454 Fee: $ 36.00 Fhegenns Mien eee,) Submitter: LANDATA 6 Pages Suzanne Henderson RESTRICTIVE COVENANT AND AGREEMENT ‘ \ This Restrictive Covenant and Agreement (this “Agreement”) is made, this oak (a b OF TES & ha canteen Sethe) oF “Eh, TC (24 [address] (hereinafter referred to Lifestyies, L.P. of 900] Airport Freeway, Suite 400, North Richland Hills, Tx. 761 RECITALS REAS. Own is, the current owner, of the following, QDd 4 123, (the “P follows: ire Oi: County, Texas, and being locally knowh as ; and WHEREAS, the undersigned acknowledge that it is the policy of the of Texas to encourage the peaceable resolution of disputes through alternative dispute resolution procedures; and elease ail implied warranties given by, through or ements”), including but not limited to, all implied warranties of good and workmanlike construction and me) €r sp 2 afihis AgreementSHALL RUN WITH THE LAND.
WHEREAS, to the fullest extent permitted by applicable law, Ow NOW, THEREFORE, for valuable consideration, hereby acknowledge, agree and stpulate the following: including, but not limited to, (a) any and all conjroversigs, g 5 avhs arising under, or related to, any contract and any amendments thereto between Builder and Owner, the Proper A any dcalings between the Owner and Builder; (b) any controversy, dispute or claim arising by virtue of any representa gS or warranties alleged to have been made by Builder or Builder’s representative; and (c) any personal injury to have been sustained by Owner on the Property or in the subdivision,
of any representa gS or warranties alleged to have been made by Builder or Builder’s representative; and (c) any personal injury to have been sustained by Owner on the Property or in the subdivision, shall first be submitted to mediation and, i edédtion, shall thereafter be submitted to binding arbitration as provided by the Federal Arbitration Act (9 U.S.C. §§ 1 > g, by similar state statute, and not by or in a court of law, All decisions respecting the arbitrability of any Dispute shall g abitrgtor. The arbitrator shall have the right to award reasonable attomeys’ fees and expenses, including those incurred in én. The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth in the applica ments. If there is any conflict between this Agreement and such procedures, the provisions of this Agreement shall co: , if the mediator and/or arbitrator designated in any applicable warranty documents cannot conduct the mediation or api the partics agree to work together in good faith to select a mediator and, if all disputes are not bnty where the subject Property is located. If the partics arc unablc to agree on the appointment of a tition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator.
por, he parties shall be entitled to conduct reasonable and necessary discovery; © arbitrator shall rendcr a written award and, if requested by any party, areasoned award; the Owner shail 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 Any award rendered in the proceeding shall be final and binding and judgment upon any such award may be entered in
rtion the cost of any such items in an equitable manner in the arbitration award; and 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 und 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 Agrecment. 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 shall have the option to include its subcontractos 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.
, 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.
3. | OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT HE/SHE/THEY HAS/HAVE REVIEWRD AND UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
PROVIDED BY BUILDER (the “Limited Warranty”), OWNER AGREES AND UNDERSTANDS THAT BY SIGN} THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER ANY THEORY OF IMPLIED WABRA WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED WARRANTY, TO THE EXTENT EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WARRANTY INCORPORATED B AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF SUCH LIMITED WARRA p SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION MEET. OWNER ACKNOWLEDGES THAT THEY HAVE RECEIVED AND REVIEWED ¢t or defects in or related to the
THE TERMS OF SUCH LIMITED WARRA p SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION MEET. OWNER ACKNOWLEDGES THAT THEY HAVE RECEIVED AND REVIEWED ¢t or defects in or related to the ¥ the Improvements, as determined & with Section 27.004 of the Texas Improvements that are the responsibility of Builder exceeds 30% of the then current fai without reference to the construction defect(s), Builder may elect to repurchase, the Prope: appliances or equipment shall be assigned to Owner. Owner he & agre S, Ses and stipubtes that Builder makes NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNIN E ¥ OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTAB R 6 OF USE FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES TO THE FULLEST EXTENT PER ATE OR FEDERAL LAW.
with molds and other biological impurities, Owner. The Owner can take positive stp adverse effects that may be caused by a Before bringing dte clothing and bedd aning will help reduce mold levels. Mild bleach solutions and most tile cleaners are effective enting mold growth.
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-e material or surface is color safe, Porous materials, such as fabric, upholstery or carpet should be dtScarded.
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 le g additional cost from numerous vendors.
Whether or not a home experiences mold growth depends largely on how it is maintained. The Builder hag n does it intend to make, create or invite) any warranty or any other expectancy, either express or ippphed,in rep
home experiences mold growth depends largely on how it is maintained. The Builder hag n does it intend to make, create or invite) any warranty or any other expectancy, either express or ippphed,in rep impurities. The Owner understands and agrees that the Builder is not responsible, and hereby, ime actual, special, incidental or consequential) or for any injury, illness or allergic reactions @nc!
which the Owner, or the Owner's family members or invitees may experience as a result of mnold, impurities, including, but not limited to, property damage, personal injury, loss of income, moh and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, and assigns) hereby releases Builder and al} of its officers, shareholders, directars, Sq “Releasees”) of and from any and all present and future claims, demands, causes D but not limited to, any claim for personal injury, whether resulting from the neglip way relates to the presence of mold, chemicals or biological impurities at tb waives (and is estopped to assert) all claims to the contrary.
g o edfo, any personal injury) Bs, spores, chemicals or biological Heath, loss of use, loss of value, gration, the receipt and sufficiency , aifitiates, and insurers (collectively, the and damages, of whatever kind or nature (including, @ Releasce or otherwise) that arises out of or in any Owner hereby further releases, on behalf of themsel Builder from any claim for subrogation. Owner understands that if to mold, chemicals or biological impurities, such insurer oft upon any insurance policy or thirdparty for damages related be able to pursue reimbursement or damages from Builder.
r understands that if to mold, chemicals or biological impurities, such insurer oft upon any insurance policy or thirdparty for damages related be able to pursue reimbursement or damages from Builder.
Owner agrees to obtain from any and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree his Aeree be filed of record in the appropriate real property records of the County in which the Property is located.
9. Owner and Builder fa wYner acknowledges that the Improvements have been completed in accordance with the Giscrepancies or differences have been approved and accepted by Owner and (ii) Owner has betby releases Builder from all claims and liabilities relating to the Property or Improvements ef the express Limited Warranty. .
contract between Owner and Bys accepted the Property and 1 iM.
upon and inure success id efacknowledge and stipulate that, except as otherwise provided herein, this Agreement shall be binding of the parties hereto and their respective heirs, executors, officers, directors, shareholders, Tepresentatives, torfhe BUILDER: By: Printed Name: Its: Assistant Secreta Address: 9001 Airport Freeway Suite 400 North Richland Hills, Tx 76180 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 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.
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 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, attommeys 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 Oyfier deals, Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or thirdparty for damages\elated to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damaggs.fronk Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to obtain from any and all i tivels of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real propersfYefo Covsitysn 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 Improvemg V3 bed dain accofdance with the contract between Owner and Builder or that any discrepancies or differences have been apfroyetha C accepted the Property and Improvements and hereby releases Builder from all claims and liabiliti g to The Property or Improvements except for Builder’s obligations arising under the expess Limited Warranty. .
upon and inure to the benefit of the parties hereto and their respective heg fteerse-firectors, shareholders, representatives, successors and assigns.
We Le. 7 Or opnt
r the expess Limited Warranty. .
upon and inure to the benefit of the parties hereto and their respective heg fteerse-firectors, shareholders, representatives, successors and assigns.
We Le. 7 Or opnt BUILDER: ES HMH Lifestyles, L.P.
By: Printed Name: Its: Address: 9001 Airport Freeway Suite 400 North Richland Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 3 of 4 STATE OF TEXAS § COUNTY OF Q ¥ feat He This insuument was acknowledged before me on the _ day of Charles Sc ott (ownen).
q f Notary Public q “Ree” my comm. exp. 04-30-2010 p (Go) CAROLE WILKINSON Personalized Notary Seal STATE OF TEXAS § a § ( d JAUNMEdS! ne Stk thowner).
4 anserd Ue IN [> Notary Public, State of Texas AROLE WILKINGO Notary Public STATE OF TEXAS (name), ASITS tale [sitle} of HMH Lifestyles, LP. , on behalf of said entity.
Necwcteey MARIE RABEL —$Notary Public, NOTARY PUBLIC State of Texas Comm. Exp. 06-23-2010 Personalized Notary Seat AFTER RECORDING, RETURN TO: History Maker Homes, LLC 9001 Airport Freeway, Suite 400 North Richland Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 4 of 4 STATE OF TEXAS § a § .
COUNTY OF avreat § +i This instrument was acknowledged before me on the at day of UbA, 20 97) by Ch Lerles Sette (Owner). ’ oer ei, P iF wpe CG.
Notary Public a STATE OF TEXAS ‘OF’ a x!
Personalized Notary Seal STATE OF TEXAS § miei § COUNTY OF (&V¥fa nt § . This_ instrument was acknowledged before me on Ahaunmea ne SCE (Owner).
ae N sisi oo es CAROLE WILKINSON Personalized Notary Seal ( 6& ‘ Notary Public > , i] STATE OF TEXAS "a a THE STATE OF TEXAS § § COUNTY OF §
ment was acknowledged before me on Ahaunmea ne SCE (Owner).
ae N sisi oo es CAROLE WILKINSON Personalized Notary Seal ( 6& ‘ Notary Public > , i] STATE OF TEXAS "a a THE STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged Ope day of 20. by [name], ; iy iestyles, L.P. , on behalf of said entity.
© Notary Public, State of Texas Personalized Notary Seal S$ AFTER RECORDING, RETUR) History Maker Homes, LLC 9001 Airport Freeway, Suite 400 | North Richland Hills, T; 0 » RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4