8Z99¢19070 Electronically Recorded = ‘2!rant County Texas Official Public Records 2006 May 16 09:26 AM Fee: $ 36.00 Ffigenma/ Minhoze,) Submitter: LANDATA Suzanne Henderson D206146678 SINT hS76597] erm w [a+ Axrecment (this Agree! DP is cad en this A ewing described property situated at s“Property”), and more particularly described as follows WHEREAS, the undersigned acknowl through alternative dispute resolution procedures a w, Owner desires to release all implied warranties given by, through or on the Property (the “Improvements”), including but not limited to, all implied and further stipulates that this Agreement SHALL RUN WITH THE LAND.
under Builder relating to the constructio warranties of good and workmanlike co NOW, THEREFORE, for vailkable on, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledge, agree and stipulate de The partics speci ny dispute (whether contract, warranty, tort, statutory or otherwise) (the “Dispute”, including, but not limited to, (a), Wersies, disputes or claims arising under, or related to, any contract and any amendments thereto between Builder and Owge Qpeity or linprovements, or any dealings hetween the Owner and Builder; (b) any controversy, dispute or claim arising by virtue of a E a i representative; and (¢) an tS property damage alleged to have been sustained by Owner on the Property or in the subdivision, shall first be submitted ot settled during mediation, shall thereafter be submitted to binding arbitration as provided by the Seq.) or, if applicable, by similar state statute, and not by or in a court of law. All decisions respecting ha be decided by the arbitrator. The arbitrator shall have the right to award reasonable attorneys’ fees and
icable, by similar state statute, and not by or in a court of law. All decisions respecting ha be decided by the arbitrator. The arbitrator shall have the right to award reasonable attorneys’ fees and ii ediation and arbitration. The mediation and, if necessary, the arbitration shall be conducted pursuant to he applicable warranty documents. If there is any conflict between this Agreement and such procedures, the qhall control. Furthennore, if the mediator and/or arbitrator designated in any applicable warranty documents cann: E di gr arbitration for any reason, then the mediation and arbitration shall be conducted by the American Arbitration ration ptoceedings specified above! the parties 1 agree to work together in good faith to select a mediator and, if all disputes are not gdiatigh, ah arbitrator in the county where the subject Property is located. If the parties are unable to agree on the appointment ofa gfor, cither party may petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator.
agreed that the filing of a petition requesting appointinent of a mediator and/or arbitrator shali not constitute a waiver of the right to enforce 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, reinedies and defenses that would be available in court shall apply; c. The proceeditig shall be conducted by a single arbitrator sclected by a process designed to ensure the neutrality of the arbitrator; d. ‘The parties shalt he entitled to conduct reasonable and necessary discovery; e. The arbitrator shall render a written award and, if requested by any party, a reasoned award;
ity of the arbitrator; d. ‘The parties shalt he entitled to conduct reasonable and necessary discovery; e. 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 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 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 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 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.
f 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 (the“R CLA”) APPLIES TO CONSTRUCTION DEFECTS AND ANY DISPUTES OR CLAIMS REGARDING CONSTRUCT ION DEP . CONNECTION WITH THE IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE RCLA CONTA TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER ALSO ACKNOWLEDGE AND AGREE T, FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONSTRUCTION DEFECTANDE AND THAT ANY NOTICE UNDER THE RCLA SHALL BE SEPARATELY SENT TO BUILDER IN THE MANNE, RCLA. OWNER AND BUILDER ACKNOWLEDGE THAT THE RCLA CONTROLS TO THE EXTENT OFA THE RCLA AND ANY OTHER LAW, INCLUDING THE DECEPTIVE TRADE PRACTICES - CONSU y A SUBCHAPTER E, CHAPTER 17, TEXAS BUSINESS & COMMERCE CODE {the “DTPA”), AS PROVIDE R KA AND THE DTPA.
3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT B ANE REVIEWED AND UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
4. Owner hereby agrees, acknowledges and stipulates that THE ONLY E OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS IS THAT EXPR PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES AN AY THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER IMPLIED WARRANTY OF GOOD AND TY GIVEN BY BUILDER TO LIMITED HOME WARRANTY
THAT EXPR PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES AN AY THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER IMPLIED WARRANTY OF GOOD AND TY GIVEN BY BUILDER TO LIMITED HOME WARRANTY WORKMANLIKE CONSTRUCTION AND THAT ANY SUCH IMPLIED W. EXTENT IT EXISTS IN TEXAS, IS EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WAR CORPORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OFAUC WARRANTY ARE CLEAR, SPECIFIC AND SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY STANDARBS/OB Y ION WHICH BUILDER IS OBLIGATED TO MEET. OWNER ACKNOWLEDGES THAT THEY HAVE repre A ED SUCH WARRANTY, AND OWNER AGREES TO DELIVER A COPY OF THE LIMITED WARRANTY TO A WIRCHASER OF THE PROPERTY.
5. In the event that the reasonable cost of rep repair a construction defect or defects in or related to the Improvements that are the responsibility of Builder exceedé : current fair market value of the Improvements, as determined without reference to the construction defect(s), a pprchase the Property in accordance with Section 27.004 of the Texas Property Code. This right of election shall sury# ontract between Owner and Builder and the delivery of the deed to the Property from Builder to Owner and shall be h Ssors and assigns.
6. Owner and Builder he products incorporated into the Improve appliances or equipment shall be assigned OF ANY KIND, EXPRESS OR JMP DISCLAIMS ALL IMPLIED WA OTHER WARRANTIES TO TH g¢ and stipulate that all manufacturer warranties on equipment and consumer onditioners, heating units, water heaters, refrigerators, ranges, dishwashers and other hereby agrees, acknowledges and stipulates that Builder makes NO WARRANTIES RCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY BXTENT PERMITTED BY STATE OR FEDERAL LAW.
hwashers and other hereby agrees, acknowledges and stipulates that Builder makes NO WARRANTIES RCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY BXTENT PERMITTED BY STATE OR FEDERAL LAW.
7. Builder Mas eXecclegd reasohable care in assuring that the Property and Improvements are free of harmful molds and other undesirable organisms, ever, even ulilizing modem materials, techniques and designs, any construction project can experience a problem with molds ghchoth& bidlogicaNimpprities if proper maintenance procedures are not implemented. Such maintenance is a responsibility of efore bringing items into the home, check for signs of mold. Potted plants (roots and soil), furnishings, or stored othing and bedding material, as well as many other household goods, could already contain mold growth. Once mold is Srought 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.
¢. 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.
k 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 é 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. re 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 personé which the Owner, or the Owner's family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals 01 impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of usg and adverse health etfects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the receif
rsonal injury, loss of income, emotional distress, death, loss of usg and adverse health etfects, or any other effects. For Fifty Dollars ($50.00) and other good and valuable consideration, the receif of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executor: and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and inf “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whatevey?
but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or otherwise) Mat ay way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extepeattowed by Avner 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 insurang Builder from any claim for subrogation. Owner understands that if it makes a claim upon an atre€ polic’ to mold, chemicals or biological impurities, such insurer or third-party will not be able t phrsue reint Owner agrees to not assign any of their rights to any insurer or third party. Owner agige subrogation of any such claims.
ement or damages from Builder.
any and all insurers waivers of 8. Owner and Builder agree that this Agreement shall be filed off atéreal property records of the County in which the Property is located.
9. Owner and Builder further stipulate that this Agreement SHAGL 10. By execution of this Agreement, (i) Owner ackigpied contract between Owner and Builder or that any discrepancies or differe accepted the Property and Improvements and hereby releases Buildé
SHAGL 10. By execution of this Agreement, (i) Owner ackigpied contract between Owner and Builder or that any discrepancies or differe accepted the Property and Improvements and hereby releases Buildé except for Builder’s obligations arising under the express Limisefl W 11. Owner and Builder agree, ackno' e and upon and inure to the benefit of the parties Aoxefo, successors and assigns.
except as otherwise provided herein, this Agreement shall be binding e heirs, executors, officers, directors, shareholders, representatives, HF. Sous OWNER Address: ILDER: 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 § — § = Q This instrument was acknowledged before me on the LZ day of / ? ey . 20 OSL by Yb h St xX STNAR (Owner).
Personalized Notary Seal MARY HELEN HERNANDEZ Notary Public STATE OF TEXAS STATE OF TEXAS § COUNTY OF § " : This instrument was acknowledged before me op Jia 2 Rod mer ‘omen Personalized Notary Seal 77 Sagan rer kese cee ERIS This instrument REAR EIN THE STATE OF TEXAS 4 / RY COUNTY OF § LY 2 acknowledge ped before me on the day of , 20 by [vile] of HMH Lifestyles, L.P. , on behalf of said entity, [nan e WV Notary Public, State of Texas AFTER RB Q* RETURN TO: History MakérHtmes, LLC 6815 Manhattan Bivd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 4 of 4 é 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. p
ted 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. p 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 Buifder 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 persona jury) which the Owner, or the Owner's family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals or h impurities, including, but not limited to, property damage, personal injury, toss of income, emotional distress, death, loss of use and adverse health effects, or any other effects, For Fifty Dollars ($50.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, Owner (for themselves and for their joint and several agents, heirs, successors, executo and assigns) hereby releases Builder and all of its officers, shareholders, directors, employees, agents, affiliates, and i “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whateve watves {and is estopped to assert) all claims to the contrary.
ents, affiliates, and i “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whateve watves {and is estopped to assert) all claims to the contrary.
Owner hereby furthér 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 any, indeffarty for damages related ment or damages from Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agrees ta i any and all insurers waivers of subrogation of any such claims, 8. Owner and Builder agree that this Agreement shall be filed of Wt the appropriate real property records of the County in which the Property is located. : HE LAND.
9. Owner and Builder further stipulate that this Agreement SH. { iovements have been completed in accordance with the approved and accepted by Owner and (ii) Owner has contract between Owner and Builder or that any discrepancies or diff d and liabilities relating to the Property or Improvements accepted the Property and Improvements and hereby releases Byi 11. Owner and Builder agree, ackno upon and inure to the benefit of the parties successors and assigns.
except as otherwise provided herein, this Agreement shall be binding e heirs, executors, officers, directors, shareholders, representatives, OWNER Address: DER: HMH Lifestyles, L.P.
Pana Hae f Jodi Jensen ~ Escrow Coo tdinator Address: 6815 Manhattan Bivd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4 STATE OF TEXAS § § COUNTY OF § This - instrament was acknowledged before me on the _ day of — , 20st {Owner).
Notary Public, State of Texas Personalized Notary Seal STATE OF TEXAS § § COUNTY OF §
of 4 STATE OF TEXAS § § COUNTY OF § This - instrament was acknowledged before me on the _ day of — , 20st {Owner).
Notary Public, State of Texas Personalized Notary Seal STATE OF TEXAS § § COUNTY OF § : (Owner).
Personalized Notary Seal THE STATE OF TEXAS coms isa This instrument ad dole Sp asern cS) déed before me on the Lor day of 1 Ge) , 20/ bo by {vitle] of HMH Lifestyles, L.P. , on behalf of said ertity.
Lo Sete EW Stat Lo 9 aty Public, State of Texas STARY PUBLIC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT ~— PAGE 4 of 4