2S€6Z2r2070 St | Ove feo Official Public Records 2007 Dec 04 03:01 PM D207429357 Fee: $ 36.00 RESTRI COVENANT AND AGREEMENT address] oe pda o as “Owner”, whether one or more) and HMA pee a 001 Suite 41 orth Richland Hills (hereinafter referred to ss “Builder”), RECITALS > er rE owner of . the following described Property 9) OEE Ulo (the “Property”), and more partigula follows: ; Block DO, County, Texas, and being locally kn WHEREAS, Owner purchased the Property and Improvements (hereinafter defined ADDITION, an Addition to the Cif ; and WHEREAS, the undersigned acknowledge that it is the policy of the State of Taka through alternative dispute resolution procedures; and “Improv luding but not limited to, all implied that this AgreementSHALL RUN WITH THE LAND.
under Builder relating to the construction of all improvements on the Prop warranties of good and workmanlile construction and habitability and further NOW, THEREFORE, for valuable consideration, the receipt and Sng hereby acknowledge, agree and stputate the following: f which is hereby acknowledged, the undersigned 1. The parties specifically agree that any disper wh including, but not limited to, (a) any and all controversies, disputes thereto between Builder and Owner, the Property or Improv: mes or claim arising by virtue of any representations, omiss} 3 aranties alleged to have been made by Builder or Builder's Tepresentative; and (c) any personal injury or p: amas ey féve been sustained by Owner on the Property or in the subdivision, shall first be submitted to mediation and, if ng a during pedigtiog, shall thereafter be submitted to binding arbitration as provided by the farranty, tort, statutory or otherwise) (the “Dispute”),
n, shall first be submitted to mediation and, if ng a during pedigtiog, shall thereafter be submitted to binding arbitration as provided by the farranty, tort, statutory or otherwise) (the “Dispute”), ig under, or related to, any contract and any amendments ween the Owner and Builder, (b) any controversy, disputes the arbitrability of any Dispute shall be arbijrator. The arbitrator shal! have the right to award reasonabic attorneys’ fees and expenses, including those incurred in mf A arbit The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth in the applitg ents. If there is any conflict between this Agreement and such procedures, the isi 2 », if the mediator and/or arbitrator designated in any applicable warranty documents ie voatie shalt be entitled to conduct reascnable and necessary discovery; The arbitrator shall render a written award aad, if requested by any party, areasoned award; f. 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 vpon 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
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 seck 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 attomeys’ fees incurred in seeking abatement of such litigation and enforcement of arbitration.
2. OWNER AND BUILDER ACKNOWLEDGE THAT THE RESIDENTIAL CONSTRUCTION LIABILITY ACT (th APPLIES TO CONSTRUCTION DEFECTS AND ANY DISPUTES OR CLAIMS REGARDING CONSTRUCTION DE CONNECTION WITH THE IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE RCLA CONTAINS P TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER ALSO ACKNOWLEDGE AND AGREE TR FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONSTRUCTION DEI AND THAT ANY NOTICE UNDER THE RCLA SHALL BE SEPARATELY SENT TO BUILDER IN THE MA
D BUILDER ALSO ACKNOWLEDGE AND AGREE TR FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONSTRUCTION DEI AND THAT ANY NOTICE UNDER THE RCLA SHALL BE SEPARATELY SENT TO BUILDER IN THE MA RCLA. OWNER AND BUILDER ACKNOWLEDGE THAT THE RCLA CONTROLS TO THE EXTENT OF AX THE RCLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRACTICES - CON SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE (the “DTPA”), AS PROVIDED'S THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER<AN F MBLIED WARRANTY OF GOOD AND WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED WARR& » TO THE EXTENT IT 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 MINED WARRANTY ARE CLEAR, SPECIFIC AND ANDA FRUCTION WHICH BUILDER IS OBLIGATED TO BWED SUCH WARRANTY, AND OWNER AGREES MEET. OWNER ACKNOWLEDGES THAT THEY HAVE RE TO DELIVER A COPY OF THE LIMITED WARRANTY TO At 5. In the event that the reasonable cost of patt, aty to repair a construction defect or defects in or related to the Improvements that are the responsibility of Buil ceds pén current fair market value of the Improvements, as determined without reference to the construction defect(s) Gus purchase the Property in accordance with Section 27.004 of the Texas Property Code. This right of election shall Property from Builder to Owner and shall b ors and assigns, OF ANY KIND, EXPRESS ao DISCLAIMS ALL IMPLIED ¥j OTHER WARRANTIES TO 7 RNING SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY [ERCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY with mol ther bi dg tia if proper maintenance procedures are not implemented. Such maintenance is @ responsiblity of
CTS AND EXPRESSLY [ERCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY with mol ther bi dg tia if proper maintenance procedures are not implemented. Such maintenance is @ responsiblity of Owner. an tai five steps to reduce or diminate the occurrence of mold growth in the home, and thereby minimize any possible adverse effe: e pused by mold. These steps include the following: fore bringing items into the home, check for signs of mold. Potted plants (roots and soil), furnishings, or stored Jothing 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, Regular 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 Tunning 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 material or surface is color safe, Porous materials, such as fabric, upholstery or carpet should be discarded. Should the
fected 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.
E 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 fergely on how it is maintained. The Builder hes not made, crested 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 lixbility for, any damages (yheth actual, special, incidental or consequential) or for any injury, illness or allergic reactions (including, but not limited to, any persongl inj impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use and adverse health effects, or any other effects. For Fifty Doflars ($50.00) and other good and valuable consideration, the recei of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executorp/‘s and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and ing “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of what é ERY, Feaeees fp presence of mild, coieesiceds cx Rinbopiens imepaeitien a the party, ote waives (and is estopped to assert) all claims to the contrary.
demands, causes of action and damages, of what é ERY, Feaeees fp presence of mild, coieesiceds cx Rinbopiens imepaeitien a the party, ote waives (and is estopped to assert) all claims to the contrary.
Owner hereby further releases, on behalf of themselves and on behalf of any ins BF Builder from any claim for subrogation. Owner understands that if it makes Seon p subrogation of any such claims.
8. Owner and Builder sgree that this Agreement shall be filed which the Property is located.
9. Owner and Builder further stipulate that this Agreement SE 10. By execution of this Agreement, (@) Owner contract between Owner and Builder or that any discrepancies ef dif accepted the Propezty and improvements and hereby releases Build except for Builder's obligations arising under the express Limited Wa nts have been completed in accordance with the sd ageriviail ad sttéqned try Ovmies aad (i) Owner hes pis and Itabilities relating to the Property or Improvements 11, Owner and Builder agree, acknowledge afd stipulatf titst, except as otherwise provided herein, this Agresment shall be binding upon and inure to the benefit of the parti bir respechive heirs, executors, officers, directors, shareholders, representatives, successors and assigns, 0 Qande ° n.
RAVAK OWNER f Pace OWNER : Address: B ER: BMH Lifestvies, LP.
o_o We Aa Printed Name: Its: } j ' Assistant Secretary 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
fected 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 perspfig which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of ys S and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the rectipt aiftheyiit iency of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, ex spsubrope and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whateye?
and all of its officers, shareholders, directors, employees, agents, affiliates, and “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whateye?
but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or otherwis way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extent waives (and is estopped to assert) all claims to the contrary. : , Owner hereby further releases, on behalf of themselves and on behalf of any ins' fpr Builder from any claim for subrogation, Owner understands that if it makes a claim upon g to mold, chemicals or biological impurities, such insurer or third-party will not be able Owner agrees to not assign any of their rights to any insurer or third party. Owner agreeg to obtain frdm any and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shall be filed rd in the appropridfe real property records of the County in which the Property is located.
9. Owner and Builder further stiputate that this Agreement SHA THE LAND.
10. By execution of this Agreement, (i) Owner f Impyovements have been completed in accordance with the contract between Owner and Builder or that any discrepancies ff S en approved and accepted by Owner and (ii) Owner has accepted the Property and Improvements and hereby releases Bui entail claims and liabilities relating to the Property or Improvements except for Builder's obligations arising under the express Lipifed We 11. Owner and Builder agree, ac! : ate tijat, except as otherwise provided herein, this Agreement shall be binding
or Improvements except for Builder's obligations arising under the express Lipifed We 11. Owner and Builder agree, ac! : ate tijat, except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parti .espoctive heirs, executors, officers, directors, shareholders, representatives, successors and assigns.
Address: UTLDER: 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 STATEFORTan COUNTY OF Roland Te me on the A day of 207 by This instrument was acknowledged before me on the Pere Personalized Notary Seal (Owner).
TINA M. ESTEP ARY PUD Notary Public, State of Texas My Commission Expires May 20, 2009 Notary Public, State of Texas, STATE OF TEXAS COUNTY OF Tavant § Santa Terea This instrument was acknowledged before me on the (Owner).
Personalized Notary Seal day of Notary Public, State of Texas TARY PUDE TINA M. ESTEP Notary Public, State of Texas My Commission Expires May 20, 2009 02 by THE STATE OF TEXAS COUNTY OF TORRIN This instrument was acknowledged before me on the Nov 2007 by 0 79 day of Jodi JENSEN Iname tant [tnle] of HMH Lifestyles, L.P.. on behalf of said entity.
Personalized Notary Seal R. L Notary Public, State of Texas PUBLIC JANET R. LEWIS MY COMMISSION EXPIRES July 8, 2011 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 coorvor [Wart | y This instrument was acknowledged before me on the A of UV. WZ? by (Owner).
ss eel, TINA M. &STEP : 2% Notary Public, State of Texas Personalized Notary Seal ges My Commission Expires ee on May 20, 2009 Ww
instrument was acknowledged before me on the A of UV. WZ? by (Owner).
ss eel, TINA M. &STEP : 2% Notary Public, State of Texas Personalized Notary Seal ges My Commission Expires ee on May 20, 2009 Ww dptary Public, State of Texts {/ Personalized Notary Seal re, age THE STATE OF TEXAS COUNTY OF This instrument acknig ged before me on the day of 20 by [¢itle] of HMH Lifestyles, L.P, , on behalf of said entity.
Notary Public, State of Texas 9001 Airport Freeway, Suite 400 North Richland Hills, Tx 76180 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4