psoesz20zd Electronically Recorded = ‘2!rant County Texas Official Public Records 2007 Jul 20 07:55 AM Fee: $ 36.00 D207253084 Ffigenma/ Minhoze,) Submitter: LANDATA 6 Pages Suzanne Henderson ing described property Situated at “Property”), and more particularly described as WHEREAS, the undersigned acknow’ through alternative dispute resolution procedw: WHEREAS, to the fullest extent abletaw, Owner desircs to release ali implied warranties given by, through or under Builder relating to the constructig Q e on the Property (the “Improvements”), including but not limited to, all implied d ty and further stipulates that this AgreementSHALL RUN WITH ‘HE LAND.
NOW, THEREFORE. for va e mion, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledge, agree and stpulate R > 1. The parties speci#t BITCR ak any dispute (whether contract, warranty, tort, statutory or otherwise) (the “Dispute’’), including, but not limited to, (a a RIréversies, disputes or claims arising under, or related to, any contract and any amendments thereto between Builder and O Improvements, or any dealings between the Owner and Builder; (b) any controversy, dispute or claim arising by virtue of priations, omissions, promises or warranties alleged to have been made by Builder or Builder’s representative; and (c) am og property damage alleged to have been sustained by Owner on the Property or in the subdivision, eq.) or, if applicable, by similar state statute, and not by or in a court of law. All decisions respecting the arbitrabi 3 Pi ¢ shajl be decided by the arbitrator. The arbitrator shall have the right to award reasonable attomeys’ fees and i i ‘ mediation and arbitration. The mediution and, if necessary, the arbitration shall be conducted pursuant to
arbitrator. The arbitrator shall have the right to award reasonable attomeys’ fees and i i ‘ mediation and arbitration. The mediution and, if necessary, the arbitration shall be conducted pursuant to awplicable warranty documents. If there is any conflict between this Agreement and such procedures, the shai contro!. Furthermore, if the mediator and/or arbitrator designated in any applicable warranty documents r arbitration for any reason, then the mediation and arbitration shall be conducted by the American Arbitration dance with its applicable rules. If, for any reason, the AAA is unable or unwilling to conduct the mediation and/or edings specified above, the parties agree to work together in good fuith to select a mediator and, if all disputes are not arbitrator in the county where the subject Property is located. Lf the parties are unable to agree on the appointment of a any proced provisions of Tight to enfoPec ding 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, remedics and defenses that would be available in court shall apply; G 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; e. The arbitrator shall render a written award and, if requested by any party, areasoned award; £ The Owner shall not be required to pay any unrcasonable 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
quired to pay any unrcasonable 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 shail 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 Qwner. 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 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,
rsy, 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 shail reimburse the other parties to the litigation for their costs and expenses including attomeys’ fees incurred in seeking abatement of such litigation and enforcement of arbitration.
DTPA.
3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THA’ UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
4. Owner hereby agrees, acknowledges and stipulates that THE ONLY ES OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXP PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES ANB THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER (NY WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED W¥ Y, TO THE EXTENT IT EXISTS IN TEXAS, IS EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WARRAN RNCORPORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OP a BD WARRANTY ARE CLEAR, SPECIFIC AND A Chnry GIVEN BY BUILDER TO LIMITED HOME WARRANTY MEET. OWNER ACKNOWLEDGES THAT THEY HAVE TO DELIVER A COPY OF THE LIMITED WARRANTY TO D SUCH WARRANTY, AND OWNER AGREES PURCHASER OF THE PROPERTY.
Improvements that are the responsibility of Builder excegds 40° current fair market value of the Improvements, as determined without reference to the construction defect(s). Eu) ay © purchase the Property in accordance with Section 27.004 of the Texas Property Code. This right of election shall s e p-of the Contract between Owner and Builder and the delivery of the deed to the Property from Builder to Owner and shall ba i appliances or equipment shall be assig OF ANY KIND, EXPRESS OR ivf DISCLAIMS ALL IMPLIED WA OTHER WARRANTIES TO 7. Builde undesirable organismg; }
to the Property from Builder to Owner and shall ba i appliances or equipment shall be assig OF ANY KIND, EXPRESS OR ivf DISCLAIMS ALL IMPLIED WA OTHER WARRANTIES TO 7. Builde undesirable organismg; } with molds impurities if proper maintenance procedures are not implemented. Such maintenance is a responsibility of Owner. T! ¢ steps to reduce or diminate the occurrence of mold growth in the home, and thereby minimize any possible adverse effects e caysed by mold. These steps include the following Hefore bringing items into the home, check for signs of mold. Potted plants (roots and soil), furnishings, or stored g\othing and bedding material, as well as many other household goods, could already contain mold growth. Once mold is brought into the home; its spores can spread to other areas of the home.
bY Regular vacuuming and cleaning wilt help reduce mold levels. Mild bleach solutions and most tile cleaners are effective in eliminating or preventing mold growth.
ei 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 condensation pans (refrigerators and air conditioners) for mold growth. Take notice of musty odors, and any visible signs of mold.
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
y visible signs of mold.
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 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 persefiak inj which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals 4 impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of yéé and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the receipha fictency of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executg Brag a :
.00) and other good and valuable consideration, the receipha fictency of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executg Brag a : and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and i “Releasees”) of and from any and ail present and future claims, demands, causes of action and damages, of whatevet ki but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or otherwise) that aNs way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum e: me aw; 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 insurgrfce carrjg Builder from any claim for subrogation. Owner understands that if it makes a claim upon apy ipSuratice poki hirdparty for damages related to mold, chemicals or biological impurities, such insurer or third-party will not be able fto pursue rei sement or damages from Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agteesYo obtain from any and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed o' which the Property is located.
Tate real property records of the County in 9. Owner and Builder further stipulate that this Agreement SHA THE LAND.
10. By execution of this Agreement, (i) Owner ac contract between Owner and Builder or that any discrepancies or @ 11. Owner and Builder agree, ackn upon and inure to the benefit of the parti successors and assigns.
pases: TO44 St Martin Bol “Fort Worth te qbta3 ILDER: HMB Lifestyles, L.P.
t any discrepancies or @ 11. Owner and Builder agree, ackn upon and inure to the benefit of the parti successors and assigns.
pases: TO44 St Martin Bol “Fort Worth te qbta3 ILDER: HMB 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 e Should mold develop, thoroughly clean the affected area with a miid 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 Jargely 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 (4 actual, special, incidental or consequential) or for any injury, illness or allergic reactions (including, but not limited to, any personal i which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicalyOrbi impurities, including, but not limited to, property damage, personal! injury, loss of income, emotional distress, death, loss of use, but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or othe
roperty damage, personal! injury, loss of income, emotional distress, death, loss of use, but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or othe way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum exteg waives (and is estopped to assert) all claims to the contrary.
Owner hereby further releases, on behalf of themselves and on behalf of any insura Builder from any claim for subrogation. Owner understands that if it makes a claim upon anyf x thivaparty for damages related ement or damages from Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agree and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of red which the Property is located.
9. Owner and Builder further stipulate that this Agreement S 10. By execution of this Agreement, (i) Owner ac! ’ contract between Owner and Builder or that any discrepancies or dij accepted the Property and Improvements and hereby releases Builder ‘R except for Builder’s obligations arising under the express Limite yements have been completed in accordance with the e-egh approved and accepted by Owner and (ii) Owner has pfs and liabilities relating to the Property or improvements Il. Owner and Builder agree, ac Kd; an upon and inure to the benefit of the parti el successors and assigns.
except as otherwise provided herein, this Agreement shall be binding e heirs, executors, officers, directors, shareholders, representatives, hater I044 St Martin Bol Fort tuorth Tx 7bia3 UILDER: HMB Lifestytes, L.P.
By: Printed Name: Its: Address: 9001 Airport Freeway Suite 400 North Richland Hills, Tx 76180
shareholders, representatives, hater I044 St Martin Bol Fort tuorth Tx 7bia3 UILDER: HMB Lifestytes, 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 § OC - § COUNTY OF | avra we § , This instrument was acknowledged before me on the [3 Ya liana Dg eoenet: Personalized Notary Seal STATE OF TEXAS COUNTY OF day of 20 O by Rapes Zt AROLE WILKINSON i Notary Public STATE OF TEXAS wy Comm, Exp. 04-30RPP iw » Notary Public, State of Texas § § er § This instrument was acknowledged before me the d p , 20 by (Owner).
Personalized Notary Seal THE STATE OF TEXAS COUNTY OF This 9001 Airport Freeway, Suite 400 North Richland Hills, Tx 76180 XC Gos Public, State of Texas bdged before me on the day of [title] of HMH Lifestyles, L.P. , on behalf of said entity.
20 by Notary Public, State of Texas RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4 STATE OF TEXAS § § ‘ WON owner).
Notary Public, State of Texas Personalized Notary Seal STATE OF TEXAS § § COUNTY OF § This instrament was acknowledged before me (Owner).
Personalized Notary Seal \S THE STATE OF TEXAS & SH county or Tvegzeuh ae ee me on the o day of Jul a », 20 OF by 24 i [title] of HMH Lifestyles, £.P. , on behalf of said entity.
thetaty Public, State of Texas Personalizgd No Janet Lewis Assistant Secretary , RETURN TO 4 Nemes, LLC 9001 Airport Freeway, Suite 400 al ss J _ North Richland Hills, Tx 76180 H 2 we cee RESTRICTIVE COVENANT AND AGREEMENT ~ PAGE 4 of 4