Document

Smwy [osioze} [TH)aa RESTRICTIVE COVENANT AND AGREEMENT KG 1 Q [name] oF BOS CALI es Lifestyles, L. P. of 6815 Manhattan Blvd. Suite 400, Fort Worth, Texas 76120 (hereinafter referred to as “Builder™).

RECITALS : Zz ) WHEREAS, Owner is the current owner of the following Od 2 (the “Proper follaws: 4 \ ADDITION, an ; County, Texas, and being locally known as 3 and WHEREAS, Owner purchased the Property and Improvements (herg WHEREAS, the undersigned acknowledge that it is the policy of th through alternative dispute resolution procedures; and WHEREAS, to the fullest extent pennitied by applicabhs under Builder relating to the construction of all improvements on the warranties of good and workmanlike construction and habitabili y (the “Improvements”), including but not limited to, ail implied Npulates that this Agreement SHALL RUN WITH THE LAND.

NOW, THEREFORE, for valuable Sa eee y amg sufficiency of which is hereby acknowledged, the undersigned hereby acknowledge, agree and stipulate the following’ Whether contract, warranty, tort, statutory or otherwise) (the “Dispute”)}, ’ or claims arising under, or related to, any contract and any amendments thereto between Builder and Owner, the/Pry ents, ar any dealings between the Owner and Builder; (b) any controversy, dispute representative; and (c) any personag irg gufage alleged to have been sustained by Owner on the Property or in the subdivision,

pramises or warranties alleged to have been made by Builder or Builder’s representative; and (c) any personag irg gufage alleged to have been sustained by Owner on the Property or in the subdivision, shal) first he submitied to medi ed during mediation, shall thereafter be submitted to binding arbitration as provided by the Federal Arbitration Act (9 U9 § b 4 i the arbitrability of any Dispute decitied by the arbitrator. The arbitrator shall have the right to award reasonable attorneys’ fees and expenses, including those incu #ijop and arbitration. The mediation and, if necessary, the arbitration shall be conducted pursuant to any procedures set forth 3 warranty documents, If there is any conflict between this Agreement and such procedures, the g fl. Furthermore, if the mediator and/or arbitrator designated in any applicable warranty documents itration for any reason, then the mediation and arbitration shalt be conducted by the American Arbitration t. The parties specifically agree th eed that the filing af a petition requesting ss of a mediator and/or arbitrator shall not constitute a waiver of the arbitration.

y arbitration proceeding between the parties: All applicable Federal and State law (including Chapter 27 of the Texas Property Code) shall apply; All applicable claims, causes of action, remedies and defenses that would be available in court shall apply; 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; , é. The arbitrator shall render a written award and, if requested by any party, a reasoned award;

ty of the arbitrator; d. The parties shall be entitled to conduct reasonable and necessary discovery; , é. The arbitrator shall render a written award and, if requested by any party, a reasoned 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 (o apportion the cast of any guch 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 he entered in . any court having jurisdiction. .

Owner.and Builder agree that notwithstanding anything ta 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 shall 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 ihe right of such party or a bar to the right ef any other party to seek arbitration of that or any other claim, dispute or controversy, and (he court shall, upon motion of any party to the proceeding, direct that such controversy, dispute or claim be arbitrated in accordance herewith.

f that or any other claim, dispute or controversy, and (he 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 af 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 fitigation and enforcement of arbitration.

ACT (the “RCLA") (ON DEFECTS IN 2. OWNER AND BUILDER ACKNOWLEDGE THAT THE RESIDENTIAL CONSTRUCTION LIA APPLIES TO CONSTRUCTION DEFECTS AND ANY DISPUTES OR CLAIMS REGARDING C CONNECTION WITH THE IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE INS PROVISIONS TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER .ALSG ACKNOWLED A AT A REQUEST FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONST ER THE RCLA, AND THAT ANY NOTICE UNDER THE RCLA SHALL BE SEPARATELY SENT TO BUILDER UIRED BY THE RCLA. OWNER AND BUILDER ACKNOWLEDGE THAT THE RCLA CONTROLS TO TH, VY CONFLICT BETWEEN THE RCLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRY MER PROTECTION ACT, SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE (the “DTPA DER BY THE RCLA AND THE DTPA.

3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWFE J EY HAS/HAVE REVIEWED AND UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.

4. Owner hereby agrees, acknowledges and stipulatgs that T PRESS WARRANTY GIVEN BY BUILDER TO OWNER RELATING TO THE PROPERTY AND/OR IMPROX NTS 1S TH PRESS WRITTEN LIMITED HOME WARRANTY AND UNDERSTANDS THAT BY SIGNING THIS AGREEMENT PROVIDED BY BUILDER (the “Limited Warranty”). OWNER A R ANY THEORY OF IMPLIED WARRANTY OF GOOD AND

R IMPROX NTS 1S TH PRESS WRITTEN LIMITED HOME WARRANTY AND UNDERSTANDS THAT BY SIGNING THIS AGREEMENT PROVIDED BY BUILDER (the “Limited Warranty”). OWNER A R ANY THEORY OF IMPLIED WARRANTY OF GOOD AND THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTIO AGREEMENT. OWNER ACKNOWLEDGES EXPRESSLY REPLACED BY THE TERMS @ TH SUFFICIENTLY DETAILED TO ESTABLISH THEO TO DELIVER A COPY OF THE LIMITED WA repair necessary to repair a construction defect or defects in or related to the eéds 30% of the then current fair market value of the Improvements, as determined may elect to tepurchase the Property in accordance with Section 27.004 of the Texas he completion of the Contract between Owner and Builder and the delivery of the deed to the 5. In the event that Gr; Improvements thal are the respofsiDilikg 6. neredy agree, acknowledge and stipulate that at! manufacturer warranties on equipment and consumer products incorporaled/inip ‘ents such as air conditioners, heating units, water heaters, refrigerators, ranges, dishwashers and other appliances or equipipie kbe nssiphed to Owner. Owner hereby agrees, acknowledges and stipulates that Builder makes NO WARRANTIES E IMPLIED, CONCERNING SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIM ARRANTIES OF MERCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY HE FULLEST EXTENT PERMITTED BY STATE OR FEDERAL LAW, : Buildef has exercised reasonable care in assuring that the Property and Improvements are free of harmful molds and other izarigms; however, even utilizing modern materials, techniques and designs, any construction project can experience a problem andther biological impurities if proper maintenance procedures are not implemented. Such maintenance is a responsibitity of

s, techniques and designs, any construction project can experience a problem andther biological impurities if proper maintenance procedures are not implemented. Such maintenance is a responsibitity of Owner can take positive steps to reduce or eliminate the occurrence of mold growth in the hame, and thereby minimize any possible cis that may he caused by mold. These steps include the following: a. Before bringing items into the home, check for signs of mald. Potted plants (roots and soil), firmishings, or stored clothing 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.

b. Regular vacuuming and cleaning will help reduce mold levels. Mild bleac’ 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 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 he 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 eonditioners) for mold growth. Take notice of musty odors, and any visible signs of mold.

h solutions and most tile cleaners are effective RESTRICTIVE COVENANT AND AGREEMENT — PAGE 2 of 4 Should mald devetop, thoroughly clean the affected area with a mild solution of bleach. First, test to see if the atYected: material ar surface is color safe. Porous materials, such as. fabric, upholstery or carpet should be discarded. Should the

cted area with a mild solution of bleach. First, test to see if the atYected: material ar surface is color safe. Porous materials, such as. fabric, upholstery or carpet should be discarded. Should the mald growth be severe, call on the services of a qualified professional.

ft. 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 ta 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 0, any personal injury) which the Owner, or ihe Owner's family members or invitees may experience as a result of mold, mildew, fun gus’ spate emicals or biological impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distressade sc, loss of value, and adverse health effects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable copSiderati and sufficiency of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, s ; “ tors subrogees, attorneys and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agent & (collectively, the

for their joint and several agents, heirs, s ; “ tors subrogees, attorneys and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agent & (collectively, the “Releasees™) of and irom any and all present and future claims, demands, causes of action and damege ef kind or nature (including, but nai limited to, any claim for personal injury, whether resulting from the negligence of a B that arises out of or in any way relates to the presence of mold, chemicals or biological impurities at the Property. To the d 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 insugénde calmer or third-party with which Owner deals, Builder fram any claim for subrogation. Owner understands that if it makes a chai insprance policy or third-party for damages related to mald, chemicals or biological impurities, such insurer or third-party will 2 Owner agrees to not assign any of their rights to any insurer or thw subrogation of any such claims.

8. Owner and Builder agree that this Agreement sha]Luhe PNed record in the appropriate real property records of the County in which the Property is located. 5 9. Owner and Builder further stipulate Ay js Agpeg MLL RUN WITH THE LAND.

€s that the Improvements have been completed in accordance with the differences have been approved and accepted by Owner and (ii) Owner has der from all claims and liabilities relating to the Property or Improvements accepted the Property and Improvementsand he ed Warranty.

excefit for Builder's obligations arising ahd stipulate thai, except as otherwise provided herein, this Agreement shall be binding

mprovements accepted the Property and Improvementsand he ed Warranty.

excefit for Builder's obligations arising ahd stipulate thai, except as otherwise provided herein, this Agreement shall be binding 8, and their respective heirs, executors, officers, directors, shareholders, representatives, successors and assigns.

S 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 Thi Ue toe wa instrument SpiVag fale HEIDI HODNETT Notary Public, State olstenas My Commission Expires ~ 98/11/2008 abil, yet Pugs, %, oe > STATE OF TEXAS § 8 COUNTY OF § This instrument was acknowledged hefa an the day of . 2% by (Owner).

/ , Notary Public, State of Texas Personalized Notary Seal SH THE STATE OF TEXAS COUNTY OF nt Mvas acknowledged before me an- the day of » 20 by Prapie), [vite] of HMH Lifestyles, L.P, , on behalf of said entity.

Notary Public, State of Texas ersonali tarpszeal AFTER RECORDING, RETURN TO: Histary Maker Homes, LLC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 4 of 4 Should mold develop, thoroughly clean the affected area with a mild soiutian of bleach, First, test to see if the affected: maternal or surface 1s color safe. Porous materials, such as. fabre, upholstery or carpet should be discarded. Should the mold growth be severe, call on the services of a qualified professianai.

f. Electronic air filters that may assist in effective gir filtration and dehumidifiers to maintain. humidity levels are available at additional cost from numerous vendors.

f a qualified professianai.

f. Electronic air filters that may assist in effective gir filtration and dehumidifiers to maintain. humidity levels are available at additional cost from numerous vendors.

Whether or nol a home experiences mald grawth depends targely 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 unpurities. The Owner understands and agrees that the Builder is not responsible, and hereby disclaims any Hability 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 Qwner, or the Owner's family members or invitees may experience as 0 result af mold, mildew, fimgus, spores, chemicals or biologicai impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, nnd adverse healih 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, subrogecs, attorneys and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, aftitiates, and insurers (collectively, the “Reieasees™) of ond from any and afl present and future claims, demands, causes of action and damages, of whatever kind or nature (inchsding, but nol limited to, any claim for personal injury, whether resulting from the negligence ofa Releasce or otherwise) that arises aut of or in any

ion and damages, of whatever kind or nature (inchsding, but nol limited to, any claim for personal injury, whether resulting from the negligence ofa Releasce or otherwise) that arises aut of or in any vay selates to the presence of mold, chemicals or biological impurities at the Properly. To the maximmin exient allowed by law, Owmer hereby watves (and is estapped to assert) all claims to the contrary.

which Owner deals, Owner hereby further releases, on behalf of themselves and on behalf of any insurance carrier or third-party ar damages related Builder ram any claim for subrogation, Owner understands that if it makes a claim upon any insurance policy or thif to mold, chemicals or biological impurities, such insurer ar third-party will not be able to pursue retmbursem® Owner agrees to nat assign any of their rights to any insurer or third party, Owner agrees to obtain fio subrogation of any such claims.

& ° Owner and Builder agree that this Agreement shall be filed of record in the sppropriate Ps cards af the County in which the Property is located.

9. Owner and Builder further stipulate that this Agreement SHALL RU & beén completed in accordance with the Qved and sccepted by Owner and (ii) Owner has ¢s relating to the Property or improvements 10. By execution of this Agreement, (i) Owner acknowledges that t contract between Owner and Builder or that any discrepancits or differences hal accepted the Property and Improvements and hereby releases Builder from all ¢ except for Builder's obligations arising under the express Limited Warranty.

11. Owner and Builder agree, acknowledge and stipulate cept as otherwise provided herem, this Agreement shall be binding

¢ except for Builder's obligations arising under the express Limited Warranty.

11. Owner and Builder agree, acknowledge and stipulate cept as otherwise provided herem, this Agreement shall be binding upon and inure to the benefit of the parties hereta and their respectt ‘s, executors, officers, directors, shareholders, representatives, successors and assigns.

“Ng nbs OWNER Address: BUILD HMH Lifestvies, LP, wi Thhroy LeDur.

Printed Name: Tes: Address: 6814 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT ANO AGREEMENT — PAGE 3 of 4 STATE OF TEXAS COUNTY OF Talaat This instrument (Owner).

§ was acknowledged hefore me on the 25. dny of Algust. 2005 by Personalized Notary Seal TARY PUB HEIDI HODNETT 8 Notary Public, State of Texas LATE OF TEXA My Commission Expires 08/11/2008 Notary Public, State of Texas STATE OF TEXAS COUNTY OF 55 § This instrument (Owner).

was acknowledged before me on the Personalized Notary Seal THE STATE OF TEXAS COUNTY OF Tarant This instrument Sharon Washburn burn [name].

§ by al Copy § was acknowledged belare THE - the 25 day of August.

Kitle of HMH Lifestyles. L.P., on behalf of said entity.

2085 by Jave R. Lees Notary Public, State of Texas Personalized Notary Seal TARY PUBLIC AFTER RECORDING, RETURN TO: History Maker Haines, LLC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 JANET R LEWIS NOTARY PUBLIC State of Texas ATE OF TEL Comm. Exp. 07-08-2007 RESTRICTIVE COVENANT AND AGREEMENT - PAGE 4 of 4 HISTORY MAKER HOMES 6815 MANHATTAN BLVD #400 FT WORTH TX 76120 Submitter: STEWART TITLE DALLAS (LE) SUZANNE HENDERSON TARRANT COUNTY CLERK TARRANT COUNTY COURTHOUSE 100 WEST WEATHERFORD FORT WORTH, TX 76196-0401 DO NOT DESTRO WARNING - THIS IS PART OF THE O Ss $36.00

SON TARRANT COUNTY CLERK TARRANT COUNTY COURTHOUSE 100 WEST WEATHERFORD FORT WORTH, TX 76196-0401 DO NOT DESTRO WARNING - THIS IS PART OF THE O Ss $36.00 Instrument #: D20526943 OA D205 ANY I WHICH RESTRICTS THE SALE, RENTAL OR USE OF TH RIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.