pra9zr.0za Electronically Recorded = ‘atant County Texas Official Public Records 2007 Dec 03 09:22 AM Fee: $ 36.00 D207426644 Fhegenns Mien eee,) Submitter: LANDATA 6 Pages Suzanne Henderson set | 167 65Y ID] 2u0/ RESTRICTIVE COVEN AGREEMENT is Resi ive Covenant and Agreement (this “Agreement”) is made this frac taney fa ay [namef 0} = neal, Saat RECITALS Ph van of the 2652) Me Vivicend- Pood fact “XK “a3 follows: _Lot 2. lock 8 Ras nous “Rid GE. ADDITION, Ov County, Texas, and being locally known _.
5 and WHEREAS, Owner purchased the Property and Improvements (hereing WHEREAS, the undersigned acknowledge that it is the policy of the’ through alternative dispute resolution procedures; and WHEREAS, to the fullest extent permitted by applicable law, under Builder relating to the construction of all improvements on the Prog warranties of good and workmanlike construction and habitabilit di furtt gments"’), including but not Hmited to, all implied his ApreementSHALL RUN WITH THE LAND.
NOW, THEREFORE, for valuable consideration, the y f igncy of which is hereby acknowledged, the undersigned hereby acknowledge, agree and stipulate the following: tract, warranty, tort, statutory or otherwise) (the “Dispute’’), t fs arising under, or related to, any contract and any amendments ¢g or warranties alleged to have been made by Builder or Builder’s o have been sustained by Owner on the Property or in the subdivision, gvor. The arbitrator shall have the right to award reasonable attorneys’ fees and ‘The mediation and, if necessary, the arbitration shall be conducted pursuant to If there is any conflict between this Agreement and such procedures, the we, if the mediator and/or arbitrator designated in any applicable warranty documents
rbitration shall be conducted pursuant to If there is any conflict between this Agreement and such procedures, the we, if the mediator and/or arbitrator designated in any applicable warranty documents eason, then the mediation and arbitration shall be conducted by the American Arbitration alle rules. If, for any reason, the AAA is unable or unwilling to conduct the mediation and/or . the parties agree to work together in good faith to select a mediator and, if ali disputes are not ty where the subject Property is located. If the parties are unable to agree on the appointment of a petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator.
& petition requesting appointment of a mediator and/or arbitrator shall not constitute a waiver of the cannot conduct the mediation or Association (“AAA”) in accordag resolved by mediation, an arbi mediator and/or arbitrato) ing between hie partics: — ic patties shall be entitled to conduct reasonable and necessary discovery; jhe arbitrator shall render a written award and, if requested by any party, arcasoned award; he 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 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
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 g 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 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.
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
he “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 REVIEWS 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 IS THAT EXPRESS WRITTEN LIMITED He THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER ANY THEORY OF IMPLIED WA 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 SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARDS OF CONSTRUCTION 5. In the event that the reasonable cost of repair necessary to repair a gon3fruction defed 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 repurchas
y to repair a gon3fruction defed 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 repurchas Property Code. This right of election shall survive the completion of the Cont 6. Owner and Builder hereby agree, acknowledge and stipyJéfe products incorporated into the Improvements such as air conditioners, hegtig® appliances or equipment shall be assigned to Owner, Owner he e OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING POR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANT. 8 OF USE FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES TO THE FULLEST EXTENT PERMITTE OR FEDERAL LAW.
¢ e infasspring § Medptn maferi> haters, refrigerators, ranges, dishwashers and other e9 and stipuhtes that Builder makes NO WARRANTIES 7. Builder has exercised reasonab| undesirable organisms; however, even utilizi with molds and other biological impurities Owner. The Owner can take positive step adverse effects that may be caused by a Before bringing q ee beddines faks on a regular basis. Look for discolorations or wet spots. Repair any leaks promptly. Inspect ation pans {refrigerators and air conditioners) for moid 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 sotution 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
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 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 teceipt 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,
oyees, 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 O Builder from any claim for subrogation. Owner understands that if it makes a claim upon any insurance policy or thirdparty for damay to mold, chemicals or biological impurities, such insurer or third-party will not be able to pursue reimbursement or damage Owner agrees to not assign any of their rights to any insurer or third party. Owmer 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 propeg which the Property is located.
9. Owner and Builder further stipulate that this Agreement SHALL RUN WITH THE LA except for Builder’s obligations arising under the express Limited Warranty.
11. Owner and Builder agree, acknowledge and stipulate that, excepaa upon and inure to the benefit of the parties hereto and their respective he successors and assigns.
BUILDER: HMH Lifestyles, L.P.
Address: 9001 Airport Freeway Suite 400 North Richland Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4 STATE OF TEXAS § th : MK § This instrument was acknowledged before (Owner).
COUNTY OF TINA M. ESTEP
rt Freeway Suite 400 North Richland Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4 STATE OF TEXAS § th : MK § This instrument was acknowledged before (Owner).
COUNTY OF TINA M. ESTEP Notary Public, State of Texas Re My ee Personalized Notary Seal } sr My Commission Expires ( yo 20, ol STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged before (Owner).
Personalized Notary Seal THE STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged <O9f fore [name], Personalized Notary Seal 2@ AFTER RECORDING, RETUR History Maker Homes, LLC 9001 Airport Freeway, Suite 406 North Richland Hills, T; © me on the 17 of hy 20, OTe tary Public, State of Texas me on the \ a tes, Li} L.P. , on behalf of said entity.
Notary Public, State of Texas Public, State of Texas RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 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 the services of a qualified professional.
£ 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
ess 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, personel 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 teceipt 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 al) 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 persona! 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 biofogical 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 Ov
, 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 Ov 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 damag Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees to obtain from any and ajLin subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed of record in the appropriate real propery Led) Co which the Property is located, 9. Owner and Builder further stipulate that this Agreement SHALL RUN WITH THE gin accordance with the er and (ii) Owner has p to the Property or Improvements 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 gpppdved and ap accepted the Property and Improvements and hereby releases Builder from all claims ard liabilities refati except for Builder’s obligations arising under the express Limited Warranty.
11, Owner and Builder agree, acknowledge and stipulate that, exce e successors and assigns.
BUILDER: HMH Lifestyles, L.P.
North Richland Hills, Tx 76180 RES COVENANT AND AGREEMENT — PAGE 3 of 4 wm unm STATE OF TEXAS coun or Lf” , Whis instrument was acknowledged before me on the 17 day of hi, , att te, 4 .
(Owner).
itary Public, State of Texas =e, A M. ESTEP SORE wotary lo, Stato of Tones '
wm unm STATE OF TEXAS coun or Lf” , Whis instrument was acknowledged before me on the 17 day of hi, , att te, 4 .
(Owner).
itary Public, State of Texas =e, A M. ESTEP SORE wotary lo, Stato of Tones ' My Commission Expires May 20, 2009 STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged before me on the (Owner).
Personalized Notary Seal THE STATE OF TEXAS § COUNTY OF (eval . § instument was acknowledgi efo Jod t JTN WN [name], { , on behalf of said entity.
Public, State of Texas Personalized Notary Seal JANET A, LEWIS MY COMMISSION EXPIFIES duly 8, 2011 AFTER RECORDING, RE History Maker Homes, LLG 9001 Airport Freeway, Suite 4 | North Richland Hills, Tx 76 RES COVENANT AND AGREEMENT — PAGE 4 of 4